[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING ANTI-SEMITISM ON COLLEGE CAMPUSES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 7, 2017
__________
Serial No. 115-45
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
32-325 WASHINGTON : 2018
COMMITTEE MEMBERSHIP
ONE HUNDRED FIFTEENTH CONGRESS
COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
NOVEMBER 7, 2017
OPENING STATEMENTS
PAGE
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 3
The Honorable John Conyers, Jr., Michigan, Ranking Member,
Committee on the Judiciary..................................... 4
WITNESSES
Rabbi Baker, Director, International Jewish Affairs, American
Jewish Committee
Oral Statement............................................... 6
Dr. Pamela Nadell, Patrick Clendenen Chair in Women's and Gender
History, President, Association for Jewish Studies, American
University
Oral Statement............................................... 8
Rabbi Cooper, Associate Dean, Director Global Social Action
Agenda, Simon Wiesenthal Center
Oral Statement............................................... 9
Dr. Barry Trachtenberg, Rubin Presidential Chair of Jewish
History, Director, Jewish Studies Program, Wake Forest
University
Oral Statement............................................... 11
Paul Clement, Partner, Kirkland & Ellis LLP
Oral Statement............................................... 13
Sandra Hagee Parker, Chairwoman, Christians United for Israel
Action Fund
Oral Statement............................................... 15
Jonathan Greenblatt, CEO and National Director, Anti-Defamation
League
Oral Statement............................................... 16
Suzanne Nossel, Executive Director, PEN America
Oral Statement............................................... 18
Ken Stern, Executive Director, Justus & Karin Rosenberg
Foundation
Oral Statement............................................... 20
EXAMINING ANTI-SEMITISM ON COLLEGE CAMPUSES
----------
TUESDAY, NOVEMBER 7, 2017
House of Representatives
Committee on the Judiciary
Washington, DC.
The committee met, pursuant to call, at 10:00 a.m., in Room
2141, Rayburn House Office Building, Hon. Bob Goodlatte
[chairman of the committee] presiding.
Present: Representatives Goodlatte, Sensenbrenner, Chabot,
Issa, Franks, Gohmert, Jordan, Poe, Marino, Collins, DeSantis,
Buck, Ratcliffe, Gaetz, Biggs, Rutherford, Handel, Conyers,
Nadler, Jackson Lee, Deutch, Cicilline, Raskin, and Schneider.
Staff Present: Shelley Husband, Staff Director; Branden
Ritchie, Deputy Staff Director; Zach Somers, Parliamentarian
and General Counsel; Paul Taylor, Chief Counsel, Subcommittee
on the Constitution and Civil Justice; James Park, Minority
Chief Counsel, Subcommittee on the Constitution and Civil
Justice; and Veronica Eligan, Minority Professional Staff
Member.
Chairman Goodlatte. Good morning, the Judiciary Committee
will come to order and, without objection, the chair is
authorized to declare recesses of the committee at any time. We
welcome everyone to this morning's hearing on Examining Anti-
Semitism on College Campuses.
Before I give my opening statement and before Mr. Conyers
gives his, I am going to yield to him, so he can say a word
about the tragedy that occurred in Texas over the weekend. The
gentleman is recognized.
Mr. Conyers. Top of the morning and I thank you, Mr.
Chairman. Welcome all nine witnesses, all-time hearing. And the
distinguished gentleman from Wisconsin, Mr. Sensenbrenner. Let
me just say, briefly, that before discussing the important
topic of today's hearing, I want to raise another issue that we
must, unfortunately, confront with urgency.
On Sunday, a gunman shot and killed 26 churchgoers in
Sutherland Springs, Texas. We now know that information
concerning his court martial for domestic abuse should have
been submitted by the Air Force to the National Instant
Criminal Background System. He should have been prevented from
purchasing firearms from licensed gun dealers via the Brady
background check system.
Yesterday, before this information came to light, I wrote
to you, Mr. Chairman, requesting that the briefing planned for
our members tomorrow afternoon by ATF on the issue of bump
stocks be expanded to include the FBI to discuss the background
check issues related to Sutherland Springs, and that the
briefing be conducted as a formal hearing open to the public.
Now that we have even more information that there has been
a breakdown in the implementation of our background check
system, I ask respectfully that we include relevant officials
from the Department of Defense and the Air Force. And I
believe, as I think you do too, we should proceed quickly to
learn what happened and the public deserves to hear answers
directly.
Therefore, sir, I renew my request and expand it concerning
tomorrow's briefing, and I thank you for this opportunity.
Chairman Goodlatte. If the gentleman will yield?
Mr. Conyers. With pleasure.
Chairman Goodlatte. I thank the gentleman for his comment
and I share his concern about having an effective NICS system
and that data about domestic violence go into that system,
including data that may be developed as a part of our military
tribunal system. Therefore, we will look into a briefing on
that subject. Whether it can be accommodated quickly enough to
be done tomorrow or not we will have to see. But my plan is to
proceed with the briefing by the ATF.
If we cannot incorporate the other into that briefing, we
will do it another time and we will certainly take under
advisement your request that there be a public hearing. I think
that it is important that we get as much information to be as
informed as possible and that is where we stand right now.
Mr. Conyers. I thank you for your interest.
Mr. Sensenbrenner. Will the gentleman yield?
Mr. Conyers. Yes, sir.
Mr. Sensenbrenner. I thank the gentleman from Michigan for
yielding. I was the one who was insistent in putting the
instant check system and the Brady Bill, which was passed and
signed by President Clinton in 1993. And, at that time the
legislation was drafted, I made the point that the National
Instant Check System would only be as good as the data that was
put in to it.
And it took about 5 years to appropriately automate and
input records, not only for felony convictions, mental
incompetency adjudications, as well as, domestic violence legal
action. And, you know, we found that one State kept all of
these records in boxes of 3-by-5 cards located in every county
courthouse. That took a while to, you know, finally automate
them.
So, you know, I do not think we can blame the law for the
failure of these, the transaction of the shooter to be
identified and the sale being denied. I do not think we can
blame the system which we set up almost 25 years ago because
the system has worked in hundreds of thousands of cases.
I think we have to blame the Air Force for not doing what
was necessary to let the system be able to identify this
gentleman when he came and purchased the firearms that he ended
up using in a truly horrific killing.
Particularly, as people were in church trying to, you know,
express their freedom of religion and worship God by their own
consciences.
So I think we have to identify, you know, why this failure
was. And it is not just the Air Force; it could be any clerk of
court anywhere in the country that could have done that. And I
think this has got to be a lesson that when you have got
something that is disqualifying that has been adjudicated by
the court, get it into the system and get it into the system
right away. I thank you gentlemen for yielding.
Mr. Conyers. I thank you both.
Chairman Goodlatte. I thank you gentlemen. I thank both Mr.
Conyers and Mr. Sensenbrenner for their observations. I want to
return to focus on the important matter that is before us
today. But we will proceed with a briefing tomorrow and we will
add additional information or a separate briefing depending on
what time allows.
Mr. Conyers. Thank you.
Chairman Goodlatte. I now recognize myself for the purpose
of an opening statement.
Racism, sexism, and anti-Semitism among other forms of
animus are abhorrent whenever they appear, including on
America's college campuses. While our Federal civil rights laws
have long addressed discrimination based on race, sex, and
ethnicity, a debate is ongoing whether anti-Semitism on college
campuses warrants a unique response compared to how harassment
based on race or sex, for example, is addressed. This hearing
will examine that question among others.
There is widespread bipartisan condemnation of anti-
Semitism, which I have said is abhorrent and does not reflect
core American values of equality and religious freedom.
I am also concerned about the so-called, BDS Movement. An
effort that through boycott, divestment, and sanctions seeks to
end international support for Israel. It took just 11 minutes
for the United States to recognize Israel after it formally
declared independence in 1948. And ever since then, the United
States and Israel have had a strong relationship based on
shared democratic values and common security interests. I will
do everything I can to ensure that relationship remains strong.
There are those who disagree in various ways, of course,
including student faculty and administrators on college
campuses.
I will also do everything I can to ensure their right to
speak is protected under both the First Amendment to the United
States Constitution and free speech principals generally. It is
in that spirit in welcoming all perspectives that I have
convened this hearing today.
When do speakers, scholarship or student protesters that
are harshly critical of Israel constitute anti-Semitism? What
is the nature of anti-Semitism on college campuses today? Has
the Department of Education in the past or today adequately
examined allegations of anti-Semitism on college campuses?
How does existing law address harassment based on anti-
Semitism? What impact would some other approaches have on
freedom of speech, student relations, and academic freedom? And
what precedents would they set, good or bad? Those are just
some of the questions I look forward to discussing with today's
witnesses. It is now my pleasure to recognize a ranking member
of the Judiciary Committee, the gentleman from Michigan, Mr.
Conyers for his opening statement.
Mr. Conyers. Thank you, Mr. Chairman. I welcome the
witnesses and I wanted to mention that today's hearing on
Examining Anti-Semitism on College Campuses is apparent of a
continuing discussion that our Judiciary Committee has had on
the confluence of our twin interests: protecting equality of
opportunity and freedom of speech in institutions of higher
education.
Our particular focus today is on anti-Semitism, one of the
most ancient forms of prejudice that, unfortunately, not only
continues to exist, but in some places, has even seen
resurgence in recent years. As we hear from our distinguished
panel of witnesses, I would like for us to keep several points
in mind for context.
To begin with, anti-Semitism on college and university
campuses, like other forms of invidious discrimination against
students, remains a very real concern. According to the Anti-
Defamation League, as of September 30th, anti-Semitic incidents
increased by 67 percent in 2017 compared to the same period
last year. And there was a significant surge in these incidents
after white supremacists marched in Charlottesville, Virginia
last August during which some of those marchers shouted, ``Jews
will not replace us.''
Additionally, the league reported a disturbingly high
number of anti-Semitic bullying and vandalism incidents in K
through 12 schools and college campuses across the United
States. In recent years, other reported incidents included the
vandalism of campus property with swastikas and the passing out
or posting of leaflets with white supremacists and anti-Semitic
content on campuses.
In light of the foregoing, I wholeheartedly support the
Department of Education 2010 guidance interpreting title VI of
the Civil Rights Act of 1964 so as to protect Jewish students
and other religious minorities from discrimination. This
guidance rightly clarified that while title VI, which prohibits
discrimination on the basis of race, color, or national origin
in programs that receive Federal funding, does not included
religion as a protected characteristic. It does prohibit
discrimination against members of religious minorities if it is
based on an actual or perceived, shared ancestry or ethnicity.
Although this guidance dates from the Obama administration,
the Trump administration so far seems inclined not to change
this interpretation. And I would encourage the current
administration to continue to keep it in effect.
Finally, while we must ensure a campus learning environment
free from discrimination, we must also be careful not to stifle
legitimate, if hard edged and even offensive, political debate
on controversial topics. The vigilant protection of the right
to free speech is a fundamental hallmark of a democracy and of
academic freedom. Indeed, other than in the context of speech
that amounts to objectively severe or pervasive harassment and
in a few other limited circumstances, the remedy for bad speech
is more speech. Equality and free speech are not and must not
be pitted against each other as if they were opposing values.
Both values are essential to our democracy and to ensuring a
free society.
And in closing, I thank the chairman for holding this
important hearing, and I look forward to the testimony of our
esteemed witnesses. Thank you.
Chairman Goodlatte. Thank you, Mr. Conyers. We welcome our
distinguished witnesses. And if you all would please rise, I
will begin by swearing all of you in. Please raise your right
hand. Do you solemnly swear that the testimony that you are
about to give shall be the truth the whole truth and nothing
but the truth so help you God? Thank you.
Let the record show that the witnesses answered in the
affirmative, and please be seated.
This is a wonderfully distinguished panel. All of you have
excellent professional and academic credentials. You might not
be surprised to learn that because there are nine of you, I am
not going to give all of those details about each of you. So,
these introductions are on the brief side. But they are,
nonetheless, important.
Our first witness is Rabbi Andrew Baker. Director of
International Jewish Affairs at the American Jewish Committee.
Our second witness is Pamela Nadell, Director of Jewish Studies
Program at American University. Our third witness is Rabbi
Abraham Cooper, the Associate Dean and Director of the Global
Social Action Agenda of the Simon Wiesenthal Center.
Our fourth witness is Barry Trachtenberg, the Michael R.
and Debra K. Rubin Presidential Chair of Jewish History at Wake
Forest University. Our fifth witness is Paul Clement, a partner
at Kirkland and Ellis, LLP. Our sixth witness is Sandra Hagee
Parker, Chairwoman of the Christians United for Israel Action
Fund.
Our seventh witness is Jonathan Greenblatt, the CEO and
National Director of the Anti-Defamation League. Our eighth
witness is Suzanne Nossel, the Executive Director of Pen
America. And our ninth witness is Ken Stern, the Executive
Director of the Justice and Karen Rosenberg Foundation.
Welcome to all of you. Your written statements will be
entered into the record in their entirety and we ask that you
summarize your testimony in 5 minutes. To help you stay within
that time there is a timing light on your table. When the light
switches from green to yellow, you have 1 minute to conclude
your testimony. When the light turns red, that is it. Time is
up. And it signals your 5 minutes have expired.
Rabbi Baker, welcome. You can begin.
STATEMENTS OF RABBI ANDREW BAKER, DIRECTOR, INTERNATIONAL
JEWISH AFFAIRS, AMERICAN JEWISH COMMITTEE; PAMELA NADELL,
PATRICK CLENDENEN CHAIR IN WOMEN'S AND GENDER HISTORY,
PRESIDENT, ASSOCIATION FOR JEWISH STUDIES, AMERICAN UNIVERSITY;
RABBI ABRAHAM COOPER, ASSOCIATE DEAN, DIRECTOR GLOBAL SOCIAL
ACTION AGENDA, SIMON WIESENTHAL CENTER; BARRY TRACHTENBERG,
RUBIN PRESIDENTIAL CHAIR OF JEWISH HISTORY, DIRECTOR, JEWISH
STUDIES PROGRAM, WAKE FOREST UNIVERSITY; PAUL CLEMENT, PARTNER,
KIRKLAND & ELLIS LLP; SANDRA HAGEE PARKER, CHAIRWOMAN,
CHRISTIANS UNITED FOR ISRAEL ACTION FUND; JONATHAN GREENBLATT,
CEO AND NATIONAL DIRECTOR, ANTI-DEFAMATION LEAGUE; SUZANNE
NOSSEL, EXECUTIVE DIRECTOR, PEN AMERICA; AND KEN STERN,
EXECUTIVE DIRECTOR, JUSTUS & KARIN ROSENBERG FOUNDATION
STATEMENT OF RABBI ANDREW BAKER
Rabbi Baker. Thank you, Mr. Chairman, Ranking Member
Conyers. In my work at AJC and at the OSCE, I have focused on
Europe and the problem of anti-Semitism there. While the number
of incidents and their severity are much greater than here in
America, there are important parallels that have bearing on
addressing anti-Semitism in this country, and in particular,
with the situation on our college campuses.
This has much to do with the essential first step of
understanding the nature of anti-Semitism and the importance of
defining it. Fifteen years ago, we saw a surge in incidents. We
also saw a new form of anti-Semitism whereby the State of
Israel was demonized, where its basic existence was being
challenged. This affected the lives of European Jews
themselves. They were frequently conflated with Israel and
subject to verbal and physical attacks as a result. Merely
giving voice to their own pro-Israel views could subject them
to social intimidation and personal harassment.
In 2004, the European Monitoring Centre, The EUMC conducted
its own survey on anti-Semitism, collecting and evaluating data
and conducting personal interviews with Jewish leaders. At the
time, few countries bothered to identify hate crimes, let alone
specify those that were anti-Semitic. A majority of the EUMC's
own monitors did not even have a definition of anti-Semitism to
guide them.
Meanwhile, the personal interviews and the study revealed
the level of anxiety and uncertainty that had not been seen in
decades. The EUMC acknowledged the need for a clear,
comprehensive, and uniform definition to strengthen the work of
its monitors. Help governments in understanding and responding
to the problem and to make sense of the pessimistic predictions
of the Jewish leaders surveyed.
In the fall of 2004, the EUMC director invited me to
present her with a definition of anti-Semitism. We began with
the contributions of academic experts in the field, they were
shared with other scholars and practitioners around the world,
until a final draft document achieved consensus. It was my
responsibility to negotiate agreement on a final version with
the EUMC.
And so, in March 2005, it issued what has come to be known
as the working definition of anti-Semitism. A core paragraph
with examples. And let us also be clear: the purpose of this
definition and of the EUMC itself was not just to assist
monitors in filing reports, it was to make a difference in the
day-to-day safety and security of Jews and of all Europeans, to
increase understanding to raise awareness. Yes, to be used by
civil society and government monitors, but also by law
enforcement, by justice officials, and educators.
References to anti-Semitism with regard to the State of
Israel were both the most important and the most controversial
in this definition. Anti-Israel animus was behind many of the
physical attacks on Jewish targets. Even as government
authorities frequently dismissed them as political acts, the
extreme verbal attacks had their own corrosive impact on Jewish
community security.
The examples were designed to bring clarity to this new
form of anti-Semitism. For those who feared it could inhibit
critical debate, the definition also stated one should take
into account the overall context and also that criticism of
Israel similar to that level against other countries cannot be
regarded as anti-Semitic.
Over a decade has passed since this definition is issued
and we can see why using it can become valuable. Demonstrations
in some European cities started as anti-Israel and became anti-
Semitic. Police need to be prepared for this. So, the
definition is part of police cadet training in the UK and it is
now included in a newly published OSCE guideline on Jewish
community security.
An arson attack in a synagogue in Germany was determined
not to be anti-Semitic because of the political views and
religious affiliation of the attacker. In Austria a call to
kill Jews was deemed not anti-Semitic for the same reason.
Thus, the Austrian and German ministers of justice include the
definition in training police and prosecutors and judges.
In May 2016, IHRA, the International Holocaust Remembrance
Alliance adopted the definition. It has since been adopted by
the governments of the UK, Romania, Austria, Germany, and
Bulgaria. Earlier this year, it was recommended for use by the
European Parliament and the OSCE Parliamentary Assembly.
The U.S. Government has its own record of use. The global
Anti-Semitism Review Act of 2004 called on the State Department
to appoint a special envoy and stated that anti-Semitism has,
at times, taken the form of vilification of Zionism, the Jewish
National Movement, and incitement against Israel. It called on
State to report on acts of anti-Semitism around the world. In
that report and in a subsequent one, the working definition was
employed. I am an advocate for using it if we are to be
successful in combating anti-Semitism, we must first understand
it. We must define it.
Some said it would be used to stifle criticism of Israel,
but there is ample evidence in Europe that public criticism of
Israel is even more vocal than a decade ago. But there is also
a recognition of the very real problem of anti-Semitism as it
relates to Israel and the dangers it poses to the Jewish
community. This ought to be instructive when addressing anti-
Semitism as it appears on college campuses.
Finally, in the OSCE I am often joined by colleagues whose
mandates cover other forms of intolerance against Muslims,
Roma, Christians. Some people said adopting a definition of
anti-Semitism would lead to demands of other definitions. But
that has not happened. Those problems are no less serious than
anti-Semitism and the need for governments to address them is
every bit as critical.
Chairman Goodlatte. Rabbi Baker, your time has expired.
Rabbi Baker. Thank you.
Chairman Goodlatte. If you could sum up in a sentence?
Rabbi Baker. My last sentence, even though the
representatives of vulnerable groups are not saying they need a
definition, unlike anti-Semitism, those other forms of
prejudice are easy to recognize it is sadder still that they
are so prevalent. Thank you.
Chairman Goodlatte. Dr. Nadell. Am I pronouncing that
correctly? Thank you. Welcome.
STATEMENT OF PAMELA NADELL
Ms. Nadell. Thank you. There, got it. Thank you. Thank you,
Mr. Chairman, ranking member, and distinguished members of this
committee for inviting me today.
As a scholar of American Jewish History and also as
President of the Association for Jewish Studies the learned
society for scholars in my field, I know that our countries
encounter with anti-Semitism began in 1654 when 23 Jews landed
in New Amsterdam and its governor tried to expel what he called
this deceitful race of hateful enemies and blasphemers. Had he
succeeded, perhaps we would not be here this morning.
But he failed, and since then Jewish immigrants have come
to America from around the world and called our Nation home. As
citizens, American Jews enjoy the same right to freedom of
speech that allows others to voice their contempt for the
Jewish people and the Jewish religion.
Anti-Semitism, a malevolent ideology has waxed and waned
across the landscape of American History. The political moment,
economic dislocations, social forces, the movies in their
heyday, and social media in ours set its volume control. We are
all, by all accounts, sadly, at one of those moments where the
volume on anti-Semitism in American life is turned way up.
When violent protestors chant, `Jews will not replace us,'
American Jews are rightly fearful. The hard evidence about the
rising numbers of anti-Semitic incidents is indisputable. But
today's hearing is about the climate of anti-Semitism on
campus. And it was triggered by those who have pointed to our
colleges and universities as `hot spots of anti-Semitism and
anti-Israel bias.'
Are campuses really hot beds of anti-Semitism? Or, are they
places where Jews, one minority among many, meet from time to
time, stupidity, insensitivity, and prejudice? Is anti-Semitism
so pervasive on the campus that it has created a hostile
climate for Jews?
Social scientists find that when Jewish students are handed
a list of anti-Semitic statements, nearly three quarters
confess that they were exposed to at least one of those
statements in the past year. But the same students do not
characterize their campuses as anti-Semitic.
Instead, they report that they feel safe there. When they
do experience discomfort as Jews, they trace it to the
stridency of both sides of the Israel-Palestine debate. While
that debate can devolve into anti-Semitism, such political
speech is not ipso facto anti-Semitic.
Students say that anti-Semitic expression comes mostly from
their peers, not from their professors or the administration.
One study even recognizes that we have, `more noise than
accurate information about what is really happening on campus
around anti-Semitism.' Students surveyed are smart. They
recognize that anti-Semitism is a significant problem in
American society, but they do not characterize their campuses
as anti-Semitic.
The research confirms my own impressions and also what I
hear from my Association for Jewish Studies, colleagues
teaching around the country. Unquestionably, there are
explosive incidents. `Death to Israel and to all Jews' posted
on a Jewish student organizations Facebook page. But deplorable
incidents do not prove that the campus is ripe with anti-
Semitism.
You may have heard that recently on my own campus
Confederate flags affixed with cotton stems were posted on
bulletin boards just as we were launching our new Antiracist
Research and Policy Center. But you may not know that many of
those flags were affixed to the bulletin board of the Center
for Israel Studies.
When such revolting racist incidents occur, the response
from the university leaders is forceful and swift. We hold
townhalls. We issue statements of condemnation. We offer
students counseling and opportunities for healing. We launch
investigations. Perhaps there are campuses where administrators
respond differently to such events. But I believe them to be
the exception.
Are anti-Semites targeting the college campus?
Unfortunately, yes. Do Jewish students encounter anti-Semitism
there? Sadly, yes. Is anti-Semitism act the epicenter of campus
intolerance as one report claims? Has it created a climate of
fear that impinges upon Jewish student's ability to learn and
experience college life to the fullest? My impression, just by
social science research and my Jewish studies colleagues an
unequivocal, no. Thank you.
Chairman Goodlatte. Thank you, Rabbi Cooper, welcome.
STATEMENT OF RABBI ABRAHAM COOPER
Rabbi Cooper. Thank you, Mr. Chairman; Mr. Conyers, good to
see you. Distinguished members.
In the past several years, Jewish students on certain
college campuses, not all, but a large number have been
subjected to unprecedented levels of anti-Jewish sentiment,
leading many to feel uncomfortable participating in Jewish
campus life or other campus activities whose participants are
especially hostile to Jewish students.
Jewish students often cannot table their organizations at
student event fairs without being physically surrounded and
shouted down by extremist anti-Semitic campus organization.
They cannot bring speakers to school like every other student
group and gender and racial and ethnic group can, because the
speakers have and will be heckled into silence.
They are often reluctant to run for student government at
some schools because they have seen the numerous times in just
the past few years that Jewish students have been called out
because they are Jews and often excluded from student
government expressly due to their involvement in Jewish life on
campus.
These incidents of hate and intimidation are widespread and
impacts on campuses with large and small constituencies. They
impact on Jewish support groups like Hillel and Jewish
fraternity member of AEPi. This even led the Simon Wiesenthal
Center to create an app, CombatHateU, to ensure individual
students they can report these incidents immediately and they
are not alone.
Mr. Chairman, we are here today seeking the committee's
help because too often university administrators have been
tolerating a level of harassment and intimidation of Jewish
students that they would never dream of allowing against other
demographic groups because they know, until now, there are no
consequences. The Department of Education does not protect
Jewish students the same way that it protects other groups.
The failure of schools and Federal Government to protect
Jewish students on campus from harassment is one of the most
pressing issues for the American Jewish Community. That is why
the Simon Wiesenthal Center and every mainstream, credible
Jewish organization in the Nation, some of whom are here today
came together last year to demand equal protection under the
law for Jewish students. And as you know, that is why the
Senate passed the bill unanimously.
Mr. Chairman, I brought a few recent illustrations. This
one posted by a professor at Rutgers University. Others from
the University of Houston, University of California at
Berkley--I will submit them later--that show us in real time
what is going on on the campuses.
While this is a destressing national phenomenon, permit me
to delve into the events in my own State of California. Instead
of giving the examples that are already quoted, let me just say
that the few anti-Semitic incidents, some of them that are
reported at University of California.
Jewish students on many campuses from coast to coast report
severe, persistent, and pervasive harms at the hands of anti-
Israel activist. That harassment often includes physical and
verbal assaults, destruction of property, bullying and
intimidation, denigration, discrimination, and suppression of
speech. And often takes place regardless of the victim's
personal feelings on Israel.
Jewish students report fearing displaying their Jewish star
necklaces, wearing their Jewish sorority and fraternity
letters, or sometimes even walking to Hillel for Shabbat
dinner. The problem had become so severe that University of
California then President Mark Yudof commissioned a fact
finding team to interview Jewish students on seven UC campuses
in order to objectively assess the campus climate for them.
According to the team's report, Jewish students were
indeed, `confronting significant and difficult climate issues
as a result of activities on campus which focused on Israel,
its right to exist, and its treatment of Palestinians.'
The team found that on every U.C. campus they visited,
`Jewish students described an environment in which they felt
isolated and many times harassed and intimidated by students,
faculty, and outsiders.' Despite the undeniable hostile
environment that many Jewish students experienced at UC
California complaints filed under title VI of the 1964 Civil
Rights Act on behalf of Jew students on three campuses--U.C.
Irvine, Santa Cruz, and Berkeley--were unceremoniously
dismissed on the same day in August 2013.
Mr. Chairman, usually members of the clergy go on very,
very long and look for a dispensation from the good Lord for
the clock. I will instead just cut to the chase of the last two
paragraphs. Had OCR officials used the State Department's
definition in identifying the basis of the harassment that
targeted Jewish students, they would have recognized the anti-
Semitism at the heart of it.
Instead, OCR's lack of an adequate understanding of anti-
Semitism has effectively denied Jewish students equal
protection under the law and left them uniquely vulnerable
among their peers. That is why we ask you and your colleagues
to support our request and to move this legislation forward.
Thank you, Mr. Chairman.
Chairman Goodlatte. Thank you, Rabbi. Dr. Trachtenberg,
welcome.
STATEMENT OF BARRY TRACHTENBERG
Dr. Trachtenberg. Thank you. Thank you, Chairman, Ranking
Member Conyers, and members of this committee. It is an honor
to be here today to testify on the issue of anti-Semitism on
college campuses. I am grateful that you are soliciting a wide
range of voices on this important subject, because the right of
students and faculty to express diverse views is precisely what
is at stake in the current attempts to limit campus speech.
It is increasingly common to hear reports that a new anti-
Semitism threatens to engender students on a scale not seen
since the second World War and the Holocaust. Studies from
several major organizations have sounded the alarm that anti-
Semitism is a clear and present danger while a number of
commentators have argued that yet another war against the Jews
is upon us.
However, they are motivated less by an actual threat facing
American or world Jewry than they are part of a persistent
campaign to thwart debates, scholarly research and political
activism that is critical to the State of Israel.
The truth is that the old anti-Semitism, such as we saw in
Charlottesville this summer where torch-bearing marchers
carried Nazi and Confederate flags and chanted, ``you Jews will
not replace us,'' and murdered a protester is still live in the
United States and requires vigilant and persistent resistance.
Legislation such as the Anti-Semitism Awareness Act,
however, is not a genuine attempt to contend with actual anti-
Semitism. But rather is an attempt to quell what are in fact
protective acts of speech that are vital and necessary to the
scholarly missions of educational institutions and to the
functioning of democratic societies.
It is a factual distortion to characterize campuses in the
United States as hot beds of new anti-Semitism. A recent study
by researchers at Stanford University reported that while
depictions of rampant anti-Semitism are widely reported in the
press, they do not represent the actual experiences of Jewish
students at the campus level.
They discovered that campus life is neither threatening or
alarmist. In general, students reported feeling comfortable on
their campuses and more specifically, feeling comfortable as
Jews on their campuses.
Much of the testimony you will hear today is likely to
argue that anti-Semitism is at crisis levels. I urge you to be
skeptical of such claims. First, many of the stories that get
wide circulation contained factual distortions and are
misrepresented in the media. Second, many studies are based on
a definition that defines criticism of Israel as inherently
anti-Semitic.
Rather, students who engage in speech that is critical of
Israeli policy are largely motivated by their concern for
Palestinian human rights. They are not motivated by anti-
Semitic speech, but its opposite: a desire to end racial and
religious discrimination of all kinds. It is profoundly
difficult to create a definition of anti-Semitism for
legislative purposes. The root of current debates in anti-
Semitism lie in a seemingly intractable problem of how to
critique Jewish collective power in a way that does not
immediately resonate with a long history of anti-Semitism.
Throughout the last thousand years of European history Jews
were regularly characterized as an incommensurate and
exceptional element who sought to undermine the established
religious, political, and economic order. In each of those
moments, Jews were imagined as a united group that possessed
power and authority far beyond their actual numbers.
Yet in 1948 with the founding of Israel as the solution of
anti-Semitism, the situation changed dramatically. For the
first time a significant number of Jews gained actual, not
imaginary power. Today the State of Israel has borders, police,
courts, a military, a nuclear arsenal, political parties that
are mostly representative and somewhat democratic system of
government.
Like all other states its actions must be permitted to be a
matter of public debate and discourse both within the Jewish
community and outside of it. It is speech that is critical of
Israel still strikes many as inherently anti-Semitic. The
problem is we are still learning how to talk about Israel's
actual political power in ways that do not immediately echo
much older and anti-Semitic depictions of imaginary Jewish
power.
This is not only on account of the long history of anti-
Jewish hatred in the west, it is also because as we see in a
legislative initiative such as these to characterize any speech
that is critical of Israel as intrinsically anti-Semitic has
been a highly effective tool employed by those who uncritically
support every action of Israel and see to stigmatize all
critics.
It would be ill-advised for Congress to establish legal
authority on the definition of anti-Semitism that is so deeply
contested. To insist that Israel cannot be protested or
objected to, to mandate that collective Jewish power cannot be
analyzed or debated, or to concluded that Jews--because they
were once victims of humanities greatest genocidal crimes--are
somehow immune for becoming perpetrators of violence against
other people's reinforces the anti-Semitic believe that Jews
are fundamentally different people.
Most dangerously of all, attempts to broaden the definition
of anti-Semitism to encompass phenomena that are clearly not
anti-Jewish can only make it more difficult to recognize,
isolate, and oppose actual anti-Semitic hatred when it does
appear. Thank you.
Chairman Goodlatte. Thank you. Mr. Clement, welcome.
STATEMENT OF PAUL CLEMENT
Mr. Clement. Thank you, Mr. Chairman, Mr. Conyers. It is a
pleasure to be here. It is a particular privilege to be here
representing the ADL, Wiesenthal Center, APAC, and the Jewish
Federations of North America.
There are at least three kinds of issues floating around
the room this morning: one is the extent of the problem; two is
the policy wisdom of addressing it with a clarifying definition
of anti-Semitism; and the third is whether providing that
definition raises problems under the First Amendment. The
others on this panel are much better situated to address the
first two issues.
So I will direct my remarks only to the third issue, and to
say as emphatically as I can, that providing a definition along
the lines that the Anti-Semitism Awareness Act would do does
not raise First Amendment problems for three basic reasons.
One, is that this Act is not a speech code, but simply
provides a definition that will allow the Education Department
to use, potentially, speech--but only for evidentiary
purposes--in evaluating whether or not harassment is motivated
by anti-Semitism.
Second, that a definition here serves First Amendment
values, it does not harm them. One way or another, government
officials are going to be looking in to this question, and I
think it serves First Amendment values for them to have a
definition that guides their mission.
And, third, but I think, frankly, least importantly the
fact that the Act has a savings clause.
So on the first of these points that it is not a speech
code, I think it is very important to understand that this Act
does not take any speech and make it illegal or impermissible.
So somebody, just like they can do today, can engage on
campus in the most abhorrent anti-Semitic speech and the
Education Department will not take action against them just for
that. But, if they couple that abhorrent speech with say a
physical attack on a Jewish student, then this Act and the
Constitution allow the use of that anti-Semitic speech to
demonstrate the motive of the person engaged in the harassment.
And the First Amendment clearly permits that. Which is to
say that this is not even controversial in the sense that when
speech is not prohibited, but only is used for evidentiary
purposes, the First Amendment is not offended. The Supreme
Court laid down that rule in Wisconsin v. Mitchell which was a
unanimous decision. There were not that many things that Chief
Justice Rehnquist and Justice Blackman agreed on, but this was
one of them: no First Amendment problem. And that is just what
the definition does here. It guides the Education Department in
the evidentiary use of speech to allow them to decide whether
or not something is anti-Semitic.
The second major reason I do not think there is a First
Amendment problem here is that what we have here is a
clarifying definition. And providing a definition to government
officials who, one way or another, are going to be looking at
speech, providing a definition serves First Amendment values.
The First Amendment generally abhors government officials
looking at speech with unfettered discretion. But that is
essentially the status quo.
Whatever Congress does here, if Congress does nothing it is
still going to be the Education Department's position that
title VI forbids harassment motivated by anti-Semitism. So, the
question really boils down to whether the Education Department
officials are going to make that judgment without a definition
or with a definition. And I certainly think it serves First
Amendment values to guide that discretion.
I think the one area of the First Amendment for a while
that government officials had no guidance was the obscenity
area where the Supreme Court, at least for a while, famously
had the ``we know it when we see it'' test. I do not think
anybody thinks that was the finest chapter in the Supreme
Court's First Amendment juris prudence.
And, really, right now the status quo is anti-Semitism.
Well, the Education Department officials will know it when they
see it, or at least we hope they will because they have no
guidance, no definition guiding their work. And that is what
this law could change.
Mr. Conyers, you made the point about being concerned about
First Amendment values in this area and I certainly share that
concern. I do think, though, that the First Amendment issue in
this area is largely what is the standard for harassment? If
that is a hair-trigger and anything that offends anyone is
harassment, then I do think there will be First Amendment
problems. But I take the current law to be that the harassment
standard is the same standard the Supreme Court laid down in
the title IX context in Davis v. Monroe, but one way or
another, this law does not change it.
So if you want to make that more demanding to protect First
Amendment values, you could do that. If you want to make it
slightly less demanding, you could do that. But all this law
does is take whatever the existing standard is and provides a
definition.
Just two last thoughts. One is I know the chairman has
raised the question of why a definition here when you do not
have a definition in other contexts? I do think that if there
were a real doubt about what constituted racist speech, or
there was some argument people were using to cover raciest
speech we would want to have a definition.
And in the same way, uniquely in this context, somebody can
say something anti-Semitic and say, ``Oh, do not worry about
it. It was just anti-Zionist. It was not anti-Semitic.'' And
so, this definition really tries to address this problem.
The last thing I will say is we also have a savings clause
in this law. I think that is, frankly, the least important
reason though that there is not a First Amendment problem.
Thank you.
Chairman Goodlatte. Thank you. Ms. Parker, welcome.
STATEMENT OF SANDRA HAGEE PARKER
Ms. Hagee Parker. Thank you, Chairman Goodlatte, ranking
member Conyers and distinguished members. My name is Sandra
Hagee Parker, and I am here on behalf of Christians United for
Israel Actions. We represent 3.8 million members whose sole
purpose is to stand united on behalf of the Jewish State and
its people.
In 2008, CUFI on campus was established aiming to educate
students about Israel and arm them with the truth because the
lessons learned in classrooms today become the policies in the
public square tomorrow. And within these classrooms,
intellectual discourse, academic freedom, and the freedom of
speech are sacrosanct and essential to achieving tolerance and
understanding among divergent groups. Despite this, within
increasing regularity, Jewish students, Jewish groups, and
those who support them find themselves having these sacred
rights abridged.
This past summer, a group of students from San Francisco
State University filed a lawsuit alleging its school knowingly
fostered anti-Semitic discrimination and a hostile environment,
which had been marked by violent threats to safety of Jewish
students on campus. Student Jacob Mandel experienced hostile
behavior, which was ignored by the university despite a
complaint being filed. He stated, ``I felt scared to be a Jew
on campus. I felt as if the university did not want me there
because I was Jewish and as if we were not allowed the same
rights as other organizations on campus. I felt like a second
class citizen because I was Jewish.''
Brian Landry, a student at UC Davis wrote the following
this past week in the California Aggie Newspaper, ``As a Jewish
student I have seen my fair share of anti-Semitic actions on
campus. I have had foul and intolerable words yelled at me
while I am studying because I had a sticker of Israel on my
laptop.
When Arab-Israeli Diplomat George Deek came to speak on
campus, anti-Semitic students shouted `death to Jews' at my
friends and me. What I have not seen is an open statement from
the school about any of these events. But what is more
frustrating is that due to the lack of exposure and punishment
for these acts, other students do not know what happened.''
We cannot change what we are not willing to confront.
Infiltration of this behavior without confrontation has led to
its normalization. So much so, that those who experience this
discrimination often feel reporting it is a waste of time due
to the regularity at which it occurs and complicity with which
it is encountered. So pervasive is this harassing behavior that
it spills over to non-Jewish individuals.
Many of our CUFI students have personally experienced that
mere standing with Jews or the Jewish State has resulted in the
same hostility. For instance, at the University of New Mexico,
a CUFI student had rocks thrown at them while tabling with an
Israeli flag. They were also spit upon.
At George Mason, a CUFI student wearing a CUFI T-shirt was
confronted in their cafeteria, cursed, and yelled at in front
of several hundred students and told that she was disgusting
and a baby killer. That student is now too frightened to wear
the shirt again. This behavior is not meant to provide a
legitimate critique. It is harassment aimed to silence and shut
down the prospective of Jewish students and those who support
them.
Allowing this behavior to shut down free speech is at odds
with the free thinking and safe environment our Nation's
colleges strive to create. Students and administrators alike
should be able to distinguish between a valid critique of a
nation and anti-Semitic behavior cloaked as opposition to
Zionism. Providing a standard by which to judge these acts, no
more chills free speech in the presence of a thermometer
prevents the temperature from rising. Both sides of the
argument deserve to be heard, but at present, one side is using
the First Amendment as both a sword with which to inflict harm
and a shield with which to protect itself from the consequences
of its actions.
Valid intellectual discourse of equal access to education
should not be mutually exclusive. And the exercise of free
speech is not an affirmative defense for harassment. The First
Amendment does not relieve schools of their obligation to
ensure that their students receive equal protection under the
law. As Kenneth L. Marcus, President Trump's present nominee
for Assistant Secretary of Civil Rights in the DOE has stated,
``The U.S. Department of State has developed excellent tools
for addressing anti-Semitism in every country other than the
United States.'' So, why not hold ourselves to the same
standard?
And despite Stanford's 2017 study concluding it was a
problem, anti-Semitism was problematic enough at Stanford
University that its student body took it upon itself to pass a
resolution against anti-Semitism and within it included the
same definition used by the State Department for guidance.
Anti-Semitism is not a Jewish issue, it is a human issue.
Jewish identity and ancestry continue to be a target whether
one is male or female, Conservative or Liberal, religious or
agnostic. History has already shown us what happens when good
men and woman do nothing in the face of such evils. Not to act
is to act. Thank you for your consideration and your time.
Chairman Goodlatte. Thank you, Ms. Parker. Mr. Greenblatt,
welcome.
STATEMENT OF JONATHAN GREENBLATT
Mr. Greenblatt. Thank you. Good morning, Chairman
Goodlatte, Ranking Member Conyers, and members of the
committee. I am Jonathan Greenblatt, CEO and National Director
of the Anti-Defamation League. I deeply appreciate the
opportunity to participate in this timely hearing on anti-
Semitism on college campuses.
I would like to use my time this morning to highlight the
trends we are seeing including the rise of anti-Semitic
incidences on campuses and the impact of unprecedented outreach
and recruitment by organized hate groups on campus. Then,
provide suggestions to some potential responses.
As the Congressman Conyers noted, the ADL's been tracking
anti-Semitic instances in America since the 1970s. Our annual
audit, which we are now doing on a quarterly basis, provides a
snapshot of this national problem and helps our professionals,
at our headquarters in New York and our 26 field offices around
the country, identify trends and craft responses.
Data drives policy and our audit has led us to draft the
first model hate crime law in the U.S. Today that hate crime
law has been adopted by the Federal Government and 45 states
around the country, including the District of Columbia. And the
Federal Hate Crimes Statistic Act of 1990 is also based on the
idea that we must count each and every bias motivated crime and
teach police in communities how to respond to them.
New audit data released last week as, Congressman Conyers
noted, detailed a 67 percent increase in the first three-
quarters of this year over the same time period last year. In
fact, we have already recorded more anti-Semitic incidences in
2017 then we saw in their entirety of 2016. I am talking about
acts of harassment, vandalism, and violence directed against
Jewish individuals and institutions. These numbers are compiled
by my team of professionals with each reported incident
verified before we log it. This is not about rumors or
rhetoric. This is about hard facts.
Anti-Semitic incidences indeed spiked after the Unite the
Right rally in Charlottesville. Until late 2016, such white
supremacists were not active on college campuses. But starting
in the fall of last year, they began a much more open effort to
spread their message and recruit at colleges and universities.
Last year at this time, the ADL had tracked nine incidences
of white supremacist activity on college campuses. This year,
for the same time period--that is two months into the academic
year--we have tracked 80 such incidences. Nearly a tenfold
increase year over year.
But anti-Semitism cannot be attributed solely to extremist
on the right. Neither side of the political spectrum is exempt
from intolerance. We have seen a rise in anti-Semitic rhetoric
coming from a radical left wing viewpoint as well. One often
rooted in extremely hostile views on Israel that can cross the
line into anti-Semitism.
Now, there is nothing wrong with criticizing particular
policies of a specific elected government in Israel. That
happens all the time, and it is not anti-Semitism. Just as
criticizing policies of the Trump administration or the U.S.
Congress does not make you anti-American. That is not what we
are talking about.
But whether it originates on the fringes of the left or the
extremes on the right we have seen real cases of anti-Semitism
surge at colleges and university. Our audit documented 118 such
anti-Semitic incidences this year, compared to only 74 in the
same period last year. That is nearly a 60 percent increase.
Our written statement outlines a number of those
incidences. I do not have time to get into them this morning.
But when we identify a problem, we also believe we have a
responsibility to propose solutions. Our statement highlights
an effective response on anti-Semitism that we saw in the
University of California system.
And we believe at the ADL that the enactment of this Act--
legislation that was approved unanimously by the Senate--would
be an important step forward to address discrimination against
Jews. It would also have positive implications for Muslims,
Sikhs, and members of other religious groups when
discrimination is based on the group's actual or perceived
shared ancestry or ethnic characteristics.
As an agency that serves as a fierce advocate for the First
Amendment, let me reinforce Mr. Clement's claim: this would not
compromise freedom of speech, period. It would provide guidance
to the Department of Education and the Department of Justice on
whether to investigate anti-Jewish discrimination in instances
in which anti-Israel activity crossed the line in to targeted,
intentional, and unlawful discriminatory intimidation and
harassment of Jewish students.
Our statement also provides several additional policy
recommendations. Number one: first, we recommend training and
outreach programs for administrators, faculty, staff, and
students on best practices and protocols to respond to hate
speech, extremism, anti-Semitism, and bigotry.
Second, we recommend that education on the parameters of
First Amendment free speech rights. Hate speech may be
protected, but administrators and student leaders have a moral
responsibility to address the accompanying impact. And while
the First Amendment protects hateful speech, it does not allow
for harmful speech intended to incite violence.
Third and final, we must recognize that there are no
simple, complete solutions to this problem. And the issue of
anti-Semitism and all forms of bigotry must be addressed long
before the college years. The government has responsibility to
provide funding for antibias, antiracism education initiatives
in K through 12 schools to inoculate our children from
intolerance before they ever get to the university.
In closing, I deeply respect the opinions of the experts at
the table, but let me just say, because this legislation
balances free speech considerations with the surge of
discrimination, the ADL and all other major Jewish
organizations, the communal leadership are unified in their
support of this Act. Thank you very much for your leadership. I
look forward to your questions.
Chairman Goodlatte. Thank you. Ms. Nossel, welcome.
STATEMENT OF SUZANNE NOSSEL
Ms. Nossel. Chairman Goodlatte, Ranking Member Conyers, and
members of the committee thank you for the opportunity to----
Chairman Goodlatte. You may want to turn the microphone on.
Ms. Nossel. Thank you for the opportunity to testify today
on anti-Semitism on campus.
PEN America stands at the intersection of literature and
human rights to protect open expression in the U.S. and
worldwide. Our mission is to unite writers and their allies to
celebrate creative expression and defend the liberties that
make it possible.
We work extensively on issues related to campus free
speech. Our fall 2016 report in Campus For All, diversity,
inclusion, and freedom of speech U.S. universities sets out a
comprehensive analysis of the tensions that rise from colleges'
dual imperatives to make campuses hospitable learning
environments for students from all backgrounds while
maintaining uncompromising protections for freedom of speech.
It is our view that these two missions can and must coexist.
PEN America is now working with university leaders,
faculty, and students around the country to help address these
strains by facilitating in depth dialogues among diverse stake
holders and promoting concreate approaches to make the campus
an open environment both for all people and for all ideas. We
are alarmed at the rise of anti-Semitic speech inactions on
campus that fellow participants in this hearing have
documented. We applaud the committee for leadership on this
issue.
As an organization dedicated under our charter, both
dispelling hatreds and defending the hampered transmission of
thought we are firm in the belief that countering the spread of
hatred must and need not impair free expression protections.
Consistent with that commitment we have several related
concerns with the Act.
This hearing takes place at a moment of pressing threats to
free speech on campus. Including efforts to disinvite and shout
down speakers. Hateful speech that intimidates members of
historically vulnerable groups. And efforts to deter, silence,
and punish speech. Amid these encroachments, it is imperative
to avoid allowing even well-intended measures to legitimize
newly restrictive parameters for expression.
It is not difficult to conceive of scenarios, a model U.N.
debate expressing resolutions targeting Israel, speeches by
Israeli leftists are an event featuring breaking the silence, a
group of former Israeli soldiers who oppose their government's
policies in which speech could meet the definition of anti-
Semitism contained in the act without being anti-Semitic at
all.
While such speech alone might not amount to a civil rights
violation, alongside other incidents and expression, it could
form part of a claim of harassment thus subjecting the speaker
to investigation and potential disciplinary action.
Many college students are finding their political voice for
the first time, exploring modes of activism, and feeling their
way to causes that they will champion throughout their lives.
Students are supposed to experiment and should not live in
peril that an errant political chant, speaker invitation, or a
remark could trigger a civil rights claim.
One might argue the rule of reason read into the act would
ensure that it would only be applied where the speech in
question bore signifiers of anti-Semitic intent or sentiment.
But the campus environment today is highly charged. We have
seen in the context of title IX and other controversies that
expression that may seem anodyne, satirical, artistic, or
purely academic can trigger an intense reaction in the hothouse
environment of a polarized campus.
The Israel-Palestine conflict is among the most contentious
subjects of campus debate. In this environment, any new weapon
to counter offensive speech is vulnerable to misuse. We have
seen that even claims of harassment that ultimately judged
meritless can pose enormous strain on individual witnesses,
responsible administrators, and the campus as a whole.
Alongside rising anti-Semitism other forms of hateful
speech are also surging. Many groups have identified slurs and
insults that they believe are not fully recognized for their
derogatory character. These include cartoon images of religious
figures, depictions of members of historically marginalized
groups by those outside of the group, and the invocation of
lesser-known stereotypes or slurs.
If this Act is passed, we should not be surprised if other
historically vulnerable groups ask for similarly expanded
protections. The campus is already a minefield when it comes to
speech. New viewpoint specific restrictions will render it even
more dangerous for those who dare express controversial ideas.
Finally, having reviewed the very thoughtful testimony of
my fellow witnesses, we submit that we do not see evidence that
the problem of rising anti-Semitism derives from the current
definitional confusion nor that an expanded definition will
address the concerns we all share. While many witnesses cite
similar practical measures they believe can be effective, I am
not sure any of us can be confident that this definitional
change will actually help solve the problem we are confronting.
Finally, the U.S.' approach to free expression is the most
protective in the world, a proud distinction. Whereas Holocaust
denial is banned in much of Europe, it is considered protected
speech here, best answered not by investigations or
prohibitions but by counter speech. If the Anti-Semitism
Awareness Act were to pass, the U.S.' claim as a global
standard bearer against viewpoint-based restrictions on speech
would be blunted.
PEN America is eager to work with the committee to advance
constructive steps to help address anti-Semitism and bigotry
while upholding robust protections on free speech. To this end,
we have also included in our written testimony a copy of
``Wrong Answer: How Good Faith Attempts to Address Free Speech
and Anti-Semitism on Campus Could Backfire.'' A new PEN America
white paper that analyzes the Anti-Semitism Awareness Act as
well as a recent spate of campus free speech laws in the
States. Thank you again for the opportunity to testify.
Chairman Goodlatte. Thank you. Mr. Stern, welcome.
STATEMENT OF KEN STERN
Mr. Stern. Thank you. Thank you. Chairman Goodlatte,
Ranking Member Conyers, and all the honorable members of the
committee. It is my pleasure to be here today, my honor to
represent the Justus and Karin Rosenberg Foundation which works
to combat hatred and anti-Semitism with a special focus on the
campus.
From 1989 to 2014, I was the American Jewish Committee's
expert on anti-Semitism, and over those years I worked with
many college presidents and on a variety of initiatives about
bigotry, anti-Semitism, and anti-Israel animus. One project was
to train over 200 college presidents on a manual of how to
manage campus bigotry. Every one of these projects stressed
that approaches which promote academic freedom are more likely
to work on campus and those that explain it away or harm it
will actually make the problem worse.
Let me give you one quick example. In 2007, when the
British University and College Union, the UCU adopted a
resolution advancing an academic boycott of Israel, some in the
American Jewish community said Americans should boycott British
academics in return. That approach, of course, would violate
academic freedom because ideas should be evaluated on their
merit not on the nationality of their proponents.
I have worked with over 400 university presidents who
signed the New York Times ad that essentially said if the UCU
was intent on violating fundamental academic principles and
dividing the academic world into two, Israelis who should be
shunned, and everyone else, then count their universities as
Israelis too.
That approach worked because it underscored the importance
of academic freedom and free speech and I dare say not one
president would have signed that ad that said, ``let's do a
counter boycott.'' And that is one of my main concerns about
the anti-Semitism Awareness Act. By under cutting academic
freedom and free speech, it, too, would do great harm to the
academy and to Jewish students and to faculty teaching Jewish
and Israel Studies.
I was the lead drafter working along with my colleague Andy
Baker who did the great politicking of the working definition
of anti-Semitism in which the State Department definition is
based. It was drafted, as Rabbi Baker said, with European data
collectors upmost in mind and not to chill or regulate speech
on American campuses.
In recent years, some Jewish groups and individuals began
filing title six complaints based in part on assertions that
anti-Israel expressions transgressed the definition and when
all those cases lost. They tried to get the University of
California system to adopt the definition and when that failed
they turned to lawmakers. As a Jewish communal official
acknowledged, this type of legislation would open the door for
other groups to seek legislatively enshrined definitions too.
Let's imagine African American groups asking for a
definition of racism from consideration under title VI
targeting political expression deemed racist. Would it include
opposition to affirmative action? Would it include opposition
to removing statues of Confederate leaders? Imagine a
definition designed for Palestinians. If denying the Jewish
people the right to self-determination is anti-Semitism, then
should not denying the Palestinian people the right to self-
determination be anti-Palestinianism?
Furthermore there is an internal and frequently distasteful
debate in the Jewish community as to who is included in the
family and who is not based on whether they are Zionists. We
know for sure, and we have heard today, of Jewish students who
are Zionist who have sometimes suffered and suffered severely,
but Jewish students who are anti-Zionists have been called
traitors, have been called capos by pro-Israel Jews and told
they are really not Jewish at all.
Now, whether you can be an 18 year old anti-Zionist and
inside the Jewish community is not a debate the Congress should
decide. But by adopting this definition, Congress would do so
by labeling anti-Zionist Jews anti-Semites. Additionally in the
last few months, we have seen students exercising a heckler's
veto over speakers considered conservative or racist. Support
for Israel as seen on some campuses in a similar vein.
Congress should not be creating something akin to a
presumption that if a pro-Israel event is targeted it is
because of anti-Semitism rather than political disagreement.
The focus on Israel also ignores other challenges to Jewish
students today, such as Albright campus organizing and the
mistaken views that because Jews are largely white they cannot
be victims of hatred.
Here is what concerns me most. Some groups empowered by a
congressional endorsement of the definition for campus
application will hunt speech they believe transgresses it and
then press administrators to either suppress it or condemn it,
threatening title VI cases. We want administrators and other
campus officials to conduct surveys on campus climate to offer
full semester classes on anti-Semitism to find new ways to use
education to break down the binary thinking around the Israeli-
Palestinian conflict.
We want universities to cultivate an environment in which
all student Jews included feel comfortable saying what they
think even if their ideas are not fully formed and they might
be wrong. But when an administrator is effectively told, as
they will be by the general counsels, that they will be
evaluated on how well the police react to anti-Israel political
speech, that will likely be their only focus.
As we have heard today, the working definition was recently
applied to campus in the United Kingdom. See how that worked
out. An Israel apartheid week event was canceled as violating
the definition. A Holocaust survivor had to change the title of
the campus talk after an Israeli diplomat complained. And most
disturbing an off-campus group got a university to investigate
a professor for violating the definition and article she had
written years ago. The university ultimately found no basis to
discipline her, but the exercise itself was chilling and
McCarthy-like.
My fear is we simply enshrined this definition to law,
outside groups will try to suppress rather than answer
political speech they do not like. The Academy, Jewish
students, and faculty teaching about Jewish issues will all
suffer. Thank you very much.
Chairman Goodlatte. Thank you, Mr. Stern. We will now begin
with the questioning of the witness and I recognize myself.
Rabbi Baker, you write in your written testimony that ``if
we are to be successful in combating anti-Semitism, we must
first understand it. We must define it. It is a complex
phenomenon. It has changed over time. It presents itself in
both new and traditional forms.'' To some, however, that the
phenomenon of anti-Semitism changes over time presents itself
in different forms over time would counsel against codifying
any particular definition of anti-Semitism.
How is a definitional codification approach compatible with
the concept of discrimination that changes over time?
Rabbi Baker. Thank you, Mr. Chairman for the opportunity to
expand on this. The fact is that there is I think a core
understanding of what anti-Semitism is about. But the way it is
manifested, the way people encounter it will vary from time and
place.
It does not mean that one day to the next it has changed or
would change dramatically. I think the idea of a definition,
and in fact this working definition that was developed first
with great difficulty to achieve consensus among Jewish experts
and organizations around the world and then to find its use in
the UMC and in other bodies in Europe, really began with
acknowledging those traditional aspects of anti-Semitism.
They may, as Dr. Nadell said, wax and wane over time. We
understand that but we should explain and define them for
people to be clear on this. The idea of conspiracy theories
against Jews, what other elements motivate this hatred. But
also to recognize, as we have seen in more recent times, for
example, Holocaust denial is itself a form of anti-Semitism.
It would not have been part of a definition a century ago,
but it is critical now. And finally, when we speak about anti-
Semitism as it relates to Israel. And I think that is something
more and more people have come to recognize not just Jews who
have experienced it in Europe or now here in the U.S. and on
college campuses.
Chairman Goodlatte. Let me interrupt.
Rabbi Baker. That is okay.
Chairman Goodlatte. Since I only have 5 minutes. Thank you
for that.
Rabbi Baker. You are welcome.
Chairman Goodlatte. I get your message. Dr. Nadell, I was
pleased to see that Kenneth Marcus an advocate for the use of
the State Department's definition of anti-Semitism in
addressing anti-Semitism under title VI was nominated by the
President to head the Civil Rights Division of the Department
of Justice which would enforce title VI.
I expect, and I guess I will ask if you expect, that Mr.
Marcus, if he is confirmed to that position, would use the
State Department's definition of anti-Semitism in addressing
anti-Semitism under title VI. And if so might it be best to
wait and see the results of using such a definition before
Congress were to codify it into statutory law.
Ms. Nadell. Thank you, Mr. Chairman. I very much agree that
I think it would be very useful to find out how this is going
to be applied in different situations rather than passing
legislation to decide something that we do not know how it will
play out. So, I agree with you, I think your suggestion is a
good one.
Chairman Goodlatte. Mr. Greenblatt, would you care to
comment on that same question?
Mr. Greenblatt. I think we need to keep in mind that the
attempt to ensure that Mr. Marcus or other officials simply can
consult the definition, would make it easier for them to do
their job effectively. So, rather than having Congress wait, I
would encourage you to proceed expeditiously with this process
so that Mr. Marcus can be an effective advocate and public
servant at the Department of Education.
Chairman Goodlatte. Dr. Trachtenberg, Rabbi Baker wrote in
his written testimony that unlike anti-Semitism, other forms of
prejudice and group hatreds are easy to recognize. Do you, or
any of the other panelists for that matter, disagree with that?
That is, cannot and do not all forms of hatred change with the
circumstances and the times?
Dr. Trachtenberg. Thank you for your question. I think we
always have to pay attention to context when we are looking at
any particular one incident, and we need to investigate it
carefully.
When we think about the State Department definition which
seeks to codify what anti-Semitism is, it is such a flawed
definition that it can virtually encompass any particular act
without any real regard for context although it pretends that
it does.
For example, the State Department definition claims that
stating that a particular Jewish person has more loyalty to the
State of Israel than they do to their own country is
necessarily an example of anti-Semitism. Where the truth is,
that is one of the fundamental premises of Zionism, and if you
go back and look at the statements say of Theodore Hertzel, who
really what is considered the founding text of Zionism, he
argued very clearly that Jews are one people and therefore it
is useless for them to be patriots to the countries in which
they reside.
So there is times when a statement like that is contained
in the definition of the State Department would actually
undermine the founding premises of Zionism itself.
Chairman Goodlatte. Thank you. My time is expired, but Mr.
Stern I was intrigued by a portion of your testimony that I do
not think you talked about in your oral testimony. And that is
would you elaborate on the points that you make with regard to
something you call ``Pandora's Box?''
Mr. Stern. Thank you. Thank you, Chairman Goodlatte. And
the issue is that once you open up this capacity for having an
official definition, then I suspect any organization that
represents other groups that are concerned with things on
campus would want a definition too.
I mean, again, to look at affirmative action as I mentioned
before, if somebody on campus says, ``There should be no
affirmative action,'' you could understand how an African
American student might hear that as, ``I do not really belong
here.'' And that is something that the university should take
responsibility for in looking at the campus culture.
But you would have groups, I would think, at that point
saying, ``Wait a minute, this is an issue of something that
makes students feel uncomfortable and want to codify that
too,'' under title VI the OCR should look at that as a
condition specifically. And I think you can find other types of
examples with other types of groups down the road----
Chairman Goodlatte. My time is expired so I do not think we
are going to do it at this point.
Mr. Stern. But that is the point.
Chairman Goodlatte. But I get that from your point.
Rabbi Cooper. Mr. Chairman.
Chairman Goodlatte. Yes, Rabbi Cooper.
Rabbi Cooper. If I may? I just want to bring back in focus
as to why we are here this morning. The United States, through
its agencies, has failed many Jewish students who went through
extreme situations of anti-Semitism. We are here because we
need your help to address that. And I think that needs to be a
focus.
Secondly, just, with permission, the idea that a dual
loyalty or being more loyal to a state other than the nation
that we have been born into is inherent in Zionism which was
just stated by another speaker cannot go unchallenged. It is
simply, it is not true, it is not accurate, and it is cannon
fodder for anti-Semites.
Chairman Goodlatte. Thank you. The chair now recognizes the
gentleman from Michigan, Mr. Conyers, for his questions.
Mr. Conyers. Thank you, sir. This has been a very unusual
situation. As an African American, I keep thinking about what
if we were looking at the question of race from this
perspective? And I have four questions here. But I think
instead I will just ask each one of you who chooses to take
just a few sentences to sum up any last considerations that you
would leave the House Judiciary Committee with, and I will
start with you, Rabbi Baker.
Rabbi Baker. I think the Anti-Semitism Awareness Act would
provide guidance that would explain what anti-Semitism is about
to people who need to know. It would go beyond what you
mentioned, Mr. Conyers, in the 2010 guidance that potentially
can be changed in a new administration that would underscore
the fact that title VI should be used to address anti-Semitism
on college campuses.
Mr. Conyers. Dr. Nadell.
Ms. Nadell. Thank you. I think the Anti-Semitism Awareness
Act is problematic if there is a way to see it referred to with
Kenneth Marcus and perhaps that is the way to go, but for now
it will label anti-Israel actions on campus as anti-Semitic,
and it will quash free speech. And that is a mistake.
Mr. Conyers. Thank you. Rabbi Cooper.
Rabbi Cooper. Congressman Conyers, we know each other for a
few decades. And just to summarize: the American Jewish
community wall-to-wall is here this morning because we need
your help. And as a leader in the civil rights movement and
along with the chairman we are here because we have a defined
problem. You have heard the statistics from the Anti-Defamation
League. They are quite shocking. What is happening here is
happening in real time. And those who refuse to recognize the
problem of anti-Semitism, well it is kind of like inviting
people from the Flat Earth Society to a hearing about NASA.
Mr. Conyers. Thank you. Dr. Trachtenberg.
Dr. Trachtenberg. Thank you. What I would say as a comment
that I hope you leave with today is to listen seriously please
to what the faculty who work in the field of Jewish studies are
asserting. What you have heard from the president of the
Association for Jewish studies just to my right, as well as
from myself.
And for many, many other faculty members who have studied
this issue very, very carefully using rigorous scientific
methods, the question of anti-Semitism is a highly contested
one and it is a topic that we do not believe that should be
addressed with the Anti-Semitism Awareness Act. And I think you
should trust professors and universities to contend with these
issues as they arise on their campus and allow us to teach our
students unimpeded. Thank you.
Mr. Conyers. Thank you, sir. Attorney Clement.
Mr. Clement. Mr. Conyers, I would just like to follow up on
your analogy to the race context. And I would think if we had a
dynamic on our college campuses where we felt like the existing
title VI prohibitions against harassment on the basis of race
were being under enforced because people kept on saying when
they were accused of harassment on the basis of race that they
had some white supremacy symbol, and that this was an anti-
African American but it was all in service of this symbol, that
we had a consensus that that was wrong, that we could amend the
definition, and restore an adequate prohibition of harassment
on the basis of race. And it would not raise First Amendment
problems, because it would only be triggered by harassment.
Mr. Conyers. Thank you. Chairwoman Parker.
Ms. Hagee Parker. Thank you, Ranking Member Conyers. I
would just like to underscore that while I understand and
appreciate that academics study the problem, it is our students
who are living the problem. They are the ones that are having
the rocks thrown at them. They are the ones that are having the
vitriol spoken to them. And the academics of Stanford did an
extensive study that said, for the most part, Jews felt safe.
The students of Stanford took it upon themselves to pass a
resolution doing large in part what we are advocating here for
today.
Mr. Conyers. Thank you. Attorney Greenblatt.
Mr. Greenblatt. Not an attorney Mr. Conyers, let me dispel
that.
Mr. Conyers. Director Greenblatt.
Mr. Greenblatt. What I would simply say is that the Anti-
Semitism Awareness Act from a First Amendment perspective will
not squash free speech. It will not chill freedom of
expression. But I would also encourage you as you reflect upon
the views of academics who live with the privilege of tenure in
the ivory tower and listen to those of us who work on Main
Street, the ADL, the American Jewish Committee, APAC, Jewish
Federations in North America, all the major Jewish communal
organizations support this legislation.
Mr. Conyers. Thank you. Director Nossel.
Ms. Nossel. Thank you. We agree that there is a serious
problem does not mean that the solution is right in front of us
is the correct one. I think here we have to keep in mind the
law of unintended consequences. We risk fueling the fire of
contentious debates and opening the door to other restrictive
measures that would chill speech, even if they do not violate
the First Amendment. We have practical measures we all agree on
that can be reinforced and that is where I would suggest that
we focus.
Mr. Conyers. Thank you. Director Stern.
Mr. Stern. Thank you. Five quick points. One is I agree
with Dr. Trachtenberg that you should listen closely to the
people that are teaching on the campus, especially on these
issues. They are the ones that I think have the closest feel of
the pulse.
Secondly, this type of legislation I think will be a black
hole that will suck away all the other things that we really
want campuses to do to deal with their environment, to deal
with their teaching. This will be the preferred answer and the
focus rather than all those other things.
Third, I think Jewish students are suffering in many places
around the Israel-Palestine conflict because there is a great
binary. Justice is seen all on one side or all on the other
side. Legislation like this, rather than breaking down that
binary, will add to it to the detriment of Jewish students.
Fourth, I disagree with something in Rabbi Cooper's written
statement where he talked about protecting vulnerable Jewish
students.
I teach on the campus, too. I have taught a class on anti-
Semitism at Bard College. I do not think the Jewish students
that I come into contact feel themselves as vulnerable and want
to be protected. They want to be engaged and have their
thinking shaken up by having the full capacity to look at these
issues from every possible way.
And fifth, I really worry about the instinct to monitor
speech. We have seen the outside groups creating dossiers
online. We have seen what is happened in the U.K. If I am a
Jewish Studies professor and I am going to be monitored for
whether I teach something that transgresses this definition I
am going to say why should I bother, I would rather teach about
18th century Judaism rather than Jews today and that is going
to be harmful.
Mr. Conyers. Thank you, all. I am going to examine this
conversation we have had this morning very carefully.
Chairman Goodlatte. Thank you, Mr. Conyers. The chair now
recognizes the gentleman from California, Mr. Issa for 5
minutes.
Mr. Issa. Thank you, Mr. Chairman. Rabbi Cooper, in your
experience: I am assuming you have experience discussing with
college administrators or response to these anti-Semitic
incidents and what have you learned?
Rabbi Cooper. Well we have had at our Museum of Tolerance
in Los Angeles a lot of interaction with primarily California-
based U.C. and Cal State administrators, people up and down the
line, including some of the campus police; there is been a lot
of exchange. There have been, you know, seminars and
discussions. What has been lacking and what we hear back from
people who have, let's say, been burned once or twice by
incidents that they did not anticipate, is they lack a context.
They are looking for a basic definition to give them a
context on campus to guide them. In my written and verbal
testimony, I spoke at some length about President Yudof when he
was the head of the U.C. system spent an enormous amount of
time on this problem, not because it was theoretical, but
because the students at the bottom of all of this were not
being protected by the system. And he tried, I think mightily,
to come up with ways to begin to correct that situation. But
the fact that we are here today before this important group of
legislators here in the House indicates that we do need help.
That context, as Mr. Clement so brilliantly presented it,
simply is that it is a definition that will help trained
college administrators, chancellors, and the rest to apply the
existing context and rules to a situation in which Jewish kids
have been subjected to the kinds of behaviors that brought us
here today.
Mr. Issa. So, you would not say that that there is an
unwillingness to protect, but a lack of training? Is that a
fair assessment? Because I see it as their most of the
administrators are not taking measures to protect.
Rabbi Cooper. I think a lot of administrators in their own
training never heard the introduction of the term anti-Semitism
along all the other areas of protected groups, minority groups,
agenda groups that have to be protected. It simply never
entered the lexicon until these incidents came forward. And it
was clear from our interaction with the people and let's give
them the benefit of the doubt that they were well-meaning and
wanting to address it. They did not really know where to begin.
In addition there are many individuals on campuses on
various levels who actually believe that Israel is an
exceptional state--i.e. an apartheid state, a racist state--
guilty of all sorts of crimes in which their own personal
biases do enter in to the way in which they respond to
situations on campuses. But overwhelmingly I do not think it is
ideologically driven. I think it is something that is
relatively new. They are not quite sure how to proceed.
Mr. Issa. Well, you know, Rabbi you know it is been a long
time since I went to college. But in those days, it was a
simpler time. This would have been very clear--yeah. Do not
look at me as how much simpler--but it was a simpler time. We
would have looked at it. We would had the '67 war, the '73 war
actually occurred during my college period. Today it seems like
we are involved with lots and lots of issues, every sort of
politically correct speech and so on.
How do we in Congress initiate a process that prioritizes
the unique characteristics of anti-Semitic behavior, lest we
begin a process and end up caught up in the dozens of other
politically correct things that we sometimes talk about how
people refer to people? You know, somebody can refer to a woman
in an incorrect way, another race, or religion, in an incorrect
way. And they are often categorized as though all of them are
equals. And none of them are good, but how do we in Congress
initiate a process that put a priority on this type of hate
speech based on its history and its pervasiveness?
Rabbi Cooper. I would just make two points and perhaps also
Mr. Clement will want to. The two points I would make is number
one we are not looking to put the Jewish student at the head of
the line. We are looking to include Jewish students within the
context of the commitment on every campus against intimidation
or creating a place where you can exchange ideas. And there is
not a single organization represented here that, in fact, ever
handed the State of Israel a moral blank check for specific
actions or policies that it is taken. So, I think that is a
simply a false issue.
The other point here also is for us to understand it is a
more complex time and a lot of these controversies are part of
global campaigns against the State of Israel, against the
Jewish people. They are sort of parachuted into campuses which
is one of the reasons why so many university administrators
seem so clueless about how to deal with it. But when you have,
God forbid, the next outbreak and we pray it will not come in
the Middle East especially now with social media, but even
before, the same mantras you will hear on the streets of Gaza,
you will hear on the campuses. And those attacks will not be
about Israel. They will be talking about Hitler was right and
death to the Jews.
Mr. Issa. Thank you.
Chairman Goodlatte. The chair recognizes the gentleman from
New York, Mr. Nadler for 5 minutes.
Mr. Nadler. Thank you. Mr. Stern, it is clear to me, at
least I have been following this for a good long time, that
there is a real problem on some campuses, and I think most
people would agree with that. But the Anti-Semitism Awareness
Act would require only that the Department of Education
consider.
It says, ``The Department of Education should take into
consideration the definition of anti-Semitism as part of the
Department's assessment of whether whatever was going on was
motivated by anti-Semitic intent.'' Supporters note that the
definition is not dispositive of whether title VI has been
violated. That, therefore, that should eliminate any concerns
about a chilling effect on free speech. What is your response
to that?
Chairman Goodlatte. Use your microphone.
Mr. Stern. My response is that you know inherently is
disingenuous. When you prioritize a certain definition, it has
the weight of having Congress behind it compared to any other
definition they can consult.
And, you know, I am really not as concerned, although I am,
about the two, three, or four, or five cases that may come up
under this. I am more concerned about the day-to-day impact on
the campus, by the fact that administrators will be told to
look at this and monitor speech, and people from outside as
they have with these early title VI cases and with these
websites focusing on dossiers of professors and students will
say, you know, hunt the speech.
And if you cannot suppress it, like the Israel apartheid
week type of thing you ought to at least condemn it. So, you
will give incentives to chill speech when I think on campus
what we really need is to cultivate an environment that does
exactly the opposite, that brings out all the different sides
of the conflict and----
Mr. Nadler. Counter-speech.
Mr. Stern. Counter-speech and use education to do it now.
Mr. Nadler. So, would it ever be appropriate for the
Federal Government to define anti-Semitism for the purposes of
title VI?
Mr. Stern. I do not think so or for any other type of
bigotry because then you----
Mr. Nadler. So, it is not that this definition is too
broad. You do not think there should ever be a definition?
Mr. Stern. I think there are problems with the definition
of using it for campus. Because again, you know, denying Israel
the right to exist is something you do not want to have in the
venue of the U.N. for the president of Iran to say and that
should be objected to. An 18-year-old on a college campus who
is trying to figure out a Jewish student whether I am Zionist,
whether I am anti-Zionist, whether I am tribal, whether I am
universal. They have to have the right to explore those ideas.
Mr. Nadler. Now without referencing a definition of law,
how should the Department of Education identify and investigate
anti-Semitism and enforce title VI?
Mr. Stern. I actually brought a case when I was at AJC for
high school students in Binghamton, New York, Vestal school
district, where the kids were being harassed--had nothing to do
with Israel. But I can tell you nobody asked me to look at the
motivation, what these people really thought about Jews. Nobody
looked at the definition.
What they looked at was whether these kids were being
identified as Jews and harassed as Jews, and they were.
Wisconsin v. Mitchell basically says the same thing. It is not
the motive that is the problem. It is this selection of
somebody to be a victim in a particular circumstance. And I
think that is how you approach it.
Mr. Nadler. In the last 7 years since the DOE issued its
guidance, how would you evaluate the department's enforcement
efforts regarding anti-Semitism?
Mr. Stern. You know you are talking about specific cases. I
think the cases, that at least I was aware of had problems they
certainly had some indicia of actions that were problematic,
but they also rely very heavily on protected speech.
So I have no capacity at this point to say at a particular
case they should have done something differently on those
cases. And those cases that were brought, again, contained
complaints about classes, about text, about campus speakers,
about other programs. And I think they were rightly concerned
about filing title VI violations on those situations.
Mr. Nadler. Thank you. Mr. Clement, if enacted, what
protections would the Anti-Semitism Awareness Act provide for
students on campus that are not already provided for in the
current law?
Mr. Clement. I think, Mr. Nadler, they would provide the
protection of having the enforcement agency empowered with the
definition. So, I do not know that this is----
Mr. Nadler. All right, the enforcement agency could do
whatever it could already do, but they would be guided by
definition.
Mr. Clement. That is right.
Mr. Nadler. Okay.
Mr. Clement. That is right. And I think it would facilitate
the whole process.
Mr. Nadler. Let me go into the next question.
Mr. Clement. Sure.
Mr. Nadler. Critics of the Anti-Semitism Awareness Act
argue that even if you are correct that the Anti-Semitism
Awareness Act does not violate the First Amendment, it could
still have a chilling effect on political speech on campus. How
would you respond to that?
Mr. Clement. I would respond to that by saying the key to
ensure that title VI, not just for anti-Semitism but for all of
the things that it prohibits, the key to making sure that it
does not have a chilling effect on speech is to make sure that
the test for harassment is sufficiently robust and consistent
with our First Amendment values.
But the rest of it, I think is mistaken. I mean, when
someone suggests that this is going to stop a professor from
lecturing on a topic in class; that just mistakes what the
standard is for finding harassment under title VI.
Mr. Nadler. Lastly, Mr. Stern, Mr. Clement argues that the
Anti-Semitism Awareness Act does not raise constitutional
concerns because it contains a saving clause, more importantly,
because it addresses conduct-like harassment rather than
protected speech and it simply adds definition to an existing
prohibition in the law. How would you respond to that?
Mr. Stern. I would say two things. First, I disagree
because in the application of it in particular it will be
problematic. Mr. Clements has also said the saving clause are
pretty much useless as Suzanne Nossel said as well. I know the
Foundation for Individual Rights in Education has also done a
very thorough analysis of this. In my view, they are the
experts on this and they have concluded without question that
this would be unconstitutional.
Mr. Nadler. My time has expired. I thank you.
Chairman Goodlatte. I thank the gentleman. The chair now
recognizes the gentleman from Florida, Mr. Gaetz, for 5
minutes.
Mr. Gaetz. I thank the chairman, and I would like to begin
by bragging about my State of Florida. I am so proud that in
response to some of the student government associations
endorsing the BDS movement, the State of Florida passed
legislation that divests our State of any entities that are
participating in the BDS movement. That is legislation built on
the landmark work of my colleague Mr. Deutch during his service
in our State legislature when he ensured that our State
divested from companies that were engaging with Iran in their
nuclear program.
Rabbi Cooper, I want to drill down specifically with you
since you mentioned student government associations. Are there
any commonalities, methods, tactics, practices that groups are
using to influence student government associations to pass BDS
resolutions? And to what extent with those methods or tactics
be impacted by the Anti-Semitism Awareness Act?
Rabbi Cooper. Well I am not an expert on the student
associations but when you read about what is going on, by the
way not only in the United States, but also what is going on in
Canada, in which you have activists who are exercising their
First Amendment rights; let's say, who are anti-Israel, have a
pro-Palestinian agenda, they get involved with student
government. They stay involved. And many times they have
leadership roles.
Where this Act would help is when Jewish students are
called out at meetings of the student government including at
UCLA, not small colleges up in Canada as well. When Jewish
students are called out, and they are basically told you do not
belong in student government because in effect it is still
loyalty. You do not really have a loyalty to the United States.
Your loyalty is to a foreign entity Israel, and therefore you
should be booted off the board. And there are other obviously
kinds of actions that could be taken in terms of funding;
certain kinds of speakers will get it, certain activities will
get it.
But I would say overall that if was just a matter of
student activism, then the most important message we can send
through Hillel and AEPi and all the other groups is make sure
Jewish kids stay involved in student government. But when you
have, as we have now had numerous examples, where Jewish kids
are called out and say you do not belong here because you are a
Jew, that student would be able to go to an administrator, and,
if necessary, to the Department of Education to get redress.
Mr. Gaetz. Mr. Greenblatt, from the Anti-Defamation League
standpoint, how do you parse that distinction between
legitimate advocacy that we can combat with other legitimate
advocacy and speech that would run afoul of this act?
Mr. Greenblatt. Thank you. I think it is really important
to keep in mind that all this legislation does is require in
the plain language that the definition be consulted by
administrators when a case has brought. This does not mandate
that they do anything. This does not handcuff them. This does
not limit free speech. It simply says when an issue is brought
to their attention that they consult the definition.
Now, again, I think, as stated by another one of the
witnesses, they we need to determine that there is indeed
harassment taking place. But having a definition that codifies
what is indeed a very complex problem would not in any way
shape or form prohibit or, again, handcuff administrator to
prevent free speech.
Mr. Gaetz. I found the data that you have provided in your
written testimony regarding the frequency of anti-Semitic
events rising particularly troubling on college campuses. To
what extent do we tie that solely to the activity on a college
campus versus perhaps some nefarious forces influencing
students as early as high school? Because I am starting to see
more and more folks advocating for BDS-type advocacy which in
my mind is modern day anti-Semitism at the high school level.
Are you able to draw a nexus there?
Mr. Greenblatt. So, Mr. Congressman, I think that is a very
good, and I think it is an important question. So, there are
two parts to it. To the first part: if we try to understand
what is the causality and the increase in anti-Semitism I think
extremists from both sides feel emboldened for different
reasons vis a vis the political climate. And so, that is
creating the conditions in which we are seeing an uptick in
activity. And that is not something that is a function of some
academic treatise. That is the reality and what we are seeing
all around the country.
But to your point, yes, I would agree that antibias,
antihate content in schools, particularly at the high school
level, can be an antidote to intolerance and that is another
area that I think we should explore.
Mr. Gaetz. Thank you, Mr. Chairman. I yield back.
Chairman Goodlatte. The chair thanks the gentleman. The
chair recognizes the gentlewoman from Texas, Ms. Jackson Lee,
for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. To the
ranking member, this is a very, very important hearing. And,
Rabbi Cooper, I think it is important that students or young
people and that any language that particularly suggests they do
not belong here. I believe we are obligated to protect them and
to protect their space of learning.
So you have me committed on the idea that our young people
must be protected. So, as I query, I am trying to find the
comfort level, Mr. Stern, on the idea of the protected speech.
And I am graduated from the University of Virginia Law
School. You can imagine my horror as I talked to the president
of the university just a week ago to reinforce the horror that
occurred as they came uninvited to the campus and walked along
a very sacred area for students while those students who had
arrived early were looking out of their dorms or windows or
standing on the front lawn--if anybody knows the structure of
the University of Virginia--in complete horror and fear. I
imagine amongst those students might have been Jewish students,
African American students, Hispanic students, and others.
And how tragic it is that rather than words of comfort, of
course, there were words that came from the highest ranking
office in the land that there were good people on both sides or
both sides had violence.
So, I think it is important that we use our approach to
also be teachers. Because, at the same time, a young student at
the American University became the first African American
student happened to be a woman, president of student
government, and then there was a series of hanging nooses and
bananas to intimidate. And so, I think the question in this day
and time is how do we educate and protect our students and
provide free space and free speech for our academics?
So, let me go to Mr. Clement who is raising the legal
arguments here. Mr. Stern made a valid point of the hunt. So, I
would not want to have a professor feeling that they were
hunted if they had several viewpoints that I do not agree with
but several viewpoints of the issues dealing with Israel, i.e.
denying the Jewish people the right to self-determination and
saying they should not have their own land, and as well other
criticisms that would be waged against Israel but could be
waged against others.
So, how would I protect that professor who wants to engage
in a deliberative and maybe provocative lecture and who may be
either overtly or hidden have some negative views, conspicuous
or nonconspicuous views about Israel and they are in an
academic setting?
Mr. Clement. Well, Representative Jackson Lee, I think that
there is no fundamental incompatibility between free speech and
free space. And I think the critical question in determining
where to strike that balance is what do we think constitutes
harassment and what do we think constitutes just free speech?
And under existing law, as I understand it, there is a pretty
demanding standard before we treat something under title VI as
harassment.
But under title VI there is two questions. A, is there
harassment that rises to that level? And then, second, even if
there is, was it motivated by one of the forbidden bases under
title VI: race, sex, national origin? And the Department is
taking this position that anti-Semitism is a forbidden motive.
And, really, all this legislation----
Ms. Jackson Lee. And is it tied to criticism of a country.
You do not have a right to exist. You do not have the right to
your own land. Israel should not exist.
Mr. Clement. And there is a variety of ways to try to
define that term. This is the same definition, obviously, the
State Department has already approved. I do not mean to dodge
the question, but I think the way to protect free speech is in
part to make sure we have the right definition for harassment.
But once we have that, boy, it seems hard at least from a
First Amendment standpoint to think that it is better to not
have any definition of anti-Semitism, especially when it is
obviously a contested term, and especially when at least some
people seem to be taking cover and say, ``I can do anything I
want and I do not have to worry about being labeled anti-
Semitic, because I will just be able to say, `No I am just
anti-Zionist.' ''
Ms. Jackson Lee. Mr. Greenblatt, could you quickly just, I
have participated in your anti-hate outreach with the Anti-
Defamation League. I think they are some of the best in the
country. And I also believe very keenly--and I am going to ask
Mr. Stern questions so I am going to end quickly, and I thank
the chairman for his indulgence--but I truly believe the
investment in K to 12 is crucial and that the crisis of America
is that we are not teaching anti-hate in the early years.
As told to me by an African American family that went to
McDonald's, and another child who happened to be white. Little
child looked at them in horror, and was afraid of them as they
came into the McDonald's. How can we deal with that? And then
finally, Mr. Stern, if you could finish your answer to the hunt
question, and how do we protect these students dealing with
legislation like this which I hope to consider? Mr. Greenblatt
would you quickly answer that?
Mr. Greenblatt. Thank you very much for the question. I
would say quickly, number one, let's be clear this definition
does not prevent students or faculty or administrators from
criticizing particular policies Israeli government. It does not
do that. It simply defines when it becomes, indeed, anti-
Semitism which, indeed, often happens and needs to be dealt.
With respect to training and education, Congresswoman I
could not agree more. We need to, as a government, ensure that
at all levels our kids are immunized from intolerance at the
earliest age. It is an ounce of prevention really can go a long
way to dealing with this disease of bigotry.
Ms. Jackson Lee. I abhor----
Chairman Goodlatte. Gentlewoman, your time has expired.
Ms. Jackson Lee. Mr. Chairman I appreciate----
Chairman Goodlatte. Mr. Stern could answer the question.
Ms. Jackson Lee. I thank you. I abhor anti-Semitism. And so
I do not want to foster it. I want to stop it.
Mr. Stern. Right. Thank you. And very briefly: one thing I
put my written testimony is that I have worked with various
college presidents over the years. The first manual that we put
out there was a situation that came up a hypothetical. A banner
is put out of a window that says, you know, so and so, you fill
in the blanks, not welcome here. There is no policy against
banners out of dorm windows. What do you do? The president of
New Paltz said, ``I would put out a larger banner from my
office saying, `everybody welcome here.' ''
We want anti-Semitism classes so students can understand
what we are talking about as opposed to having a definition
sitting on high. We want programs to give students the capacity
to discuss these difficult issues when their senses of identity
are wrapped up in something of perceived social justice. We
want to use education as much as possible.
What I worry about the hunting situation is it is going to
chill speech; faculty members, for sure. But also think about
students. When I was working at a national Jewish organization
that had a pro-Israel policy, and I am a Zionist, I was mostly
concerned with those students who were supporters of Israel.
As a college professor, I am also concerned about Jews that
are anti-Zionist, and they are left out in the cold here and in
fact made targets. We have websites that go and hunt them and
put dossiers on there. I think this will only encourage that
type of activity.
Mr. Franks [presiding]. And the gentlelady's time has
expired. I now recognize the gentleman from Arizona, Mr. Biggs,
for 5 minutes.
Mr. Biggs. Thank you, Mr. Chairman, and I appreciate all
the panelists being here today. This has been very interesting
an important topic. And Dr. Trachtenberg talked about the
potential for this definition to be interpreted overly broadly.
And Mr. Greenblatt talked about this is a consultative
definition. And so, I would like to inquire specifically about
the definition. And I will go to you Mr. Clement.
Providing a definition may be a good idea, it may be
consistent with the First Amendment as you have argued and
testified to today. My question is: is this the right
definition? As some have indicated earlier in their testimony,
is it potentially vague or can be interpreted overly broadly?
Or is it clear and concise enough? Could it be worded better?
If so, how? So if you could provide your opinion on that
please?
Mr. Clement. So thank you for the question, Representative
Biggs. I would say that there are probably other people on the
panel who are better able to sort of have a debate about
whether it is, you know, exactly the right definition. I am not
sure that, you know, that it is necessarily the platonic
definition.
I do think, though, that it has the virtue of being a
definition that the government is already using, as one of my
sort of co-panelists said, it is a bit ironic that we are
essentially willing to use this definition with every country
on the planet except ours.
But I guess the one thing I really have uniquely perhaps to
contribute from a First Amendment perspective is, especially
given that it is just a consultative definition and does not
purport to be the definitive definition--you know, in the law
sometimes you have definitions that say the following term is
and sometimes you have definitions that say the following term
includes--and this is more in the softer second version. I
think particularly because it has that character, it sure beats
the alternative from a First Amendment perspective which is no
definition at all.
Mr. Biggs. And I appreciate that. And I guess that is my
question. I mean, is anybody on the panel think they have a
better definition than this definition? I am inquiring to the
entire panel. Dr. Trachtenberg.
Dr. Trachtenberg. I am going to speak to that. It is not
clear to me that----
Mr. Biggs. Your microphone.
Dr. Trachtenberg. Sorry. It is not clear to me, as Mr.
Stern said, that a definition is required in this way. I mean,
I teach entire courses on anti-Semitism and they go on for 15
weeks, and we talk about this shifting definition of anti-
Semitism. You know, in the past it was based on religious
assumptions about Jews as Christ-killers, and the Middle Ages
Jews were repeatedly accused of seeking to recrucify Christ
through all sorts of different methods and that led to anti-
Semitic caricatures of Jews.
There are questions about Jews sexuality, whether Jews were
even human beings or not. In the modern period, we saw it as a
racial distinctions of Jews. You know, are Jews fundamentally
biologically different? We saw it grounded in notions of race.
There are questions of Jews as capitalist schemers or
revolutionary subversives.
So, this is what we teach to our students. Settling on one
definition that is going to apply to all circumstances is just
too broad and too vague and should not be the basis of
legislation.
Mr. Biggs. But, I mean, I do not want to get into a debate
with you because----
Dr. Trachtenberg. Sure.
Mr. Biggs [continuing]. I have other questions to ask. But,
I mean, one of the things you have said previously today is
that this is a very broad definition. Well, if you are going to
make it a definition it would seem to me that is consultative
in nature, it would it would by its nature become a broader
definition that would allow for the movement of society as we
see the impact of that definition as they are using it as a
consultative idea as opposed to a very strict binding concise
definition. Which is why I was asking you if there is any
better definition that may be out there?
Time goes by fast in 5 minutes. But I was going to come
back and ask, and I will ask, Mr. Clement and to anyone else as
well, do you know of any judicial opinion that provides
definition of anti-Semitism even if not in a holding in its
dicta?
Mr. Clement. I have not come across such a definition.
Mr. Biggs. Okay. All right. And so, I guess I am going to
go ahead and yield back the balance of my time since I am under
10 seconds.
Mr. Franks. And I thank the gentlemen and I recognize the
gentleman, Mr. Deutch, from Florida.
Mr. Deutch. Thank you, Mr. Chairman. First of all, I
introduced this bill because I met with Assistant Secretary of
Education for civil rights and asked how many ongoing
investigations into cases of anti-Semitism were they pursuing?
And the answer was zero. Number one. Number two, I appreciate
all of the academic discussion and the references to the
definition. Let me just read it for the record.
``Anti-Semitism is a certain perception of Jews which may
be expressed as hatred toward Jews. Rhetorical and physical
manifestations of anti-Semitism are directed toward Jewish or
non-Jewish individuals and/or their property, toward Jewish
communities, institutions, and religious facilities.'' That is
the working definition then goes on to include contemporary
examples and a fact sheet.
Let me address some of what we have heard today. One, that
any criticism of Israel would be anti-Semitic under this. It is
not true. Everyone understands that that is not the case. That
is number one.
Number two, that Jews because once they were victims are
immune from criticism, one, while I am offended by that, that
has nothing to do with this piece of legislation. Three, that,
somehow, this is really some effort to go after Jewish anti-
Zionists is the reddest of red herrings. And four, the
suggestion was made that we have to look at all different
sides. There are not all different sides to anti-Semitism.
There are not.
And the comment that was made that I find the most
compelling is that a college campus is where students are
trying to find their voice. I could not agree more. But here is
the question: in all of this talk about free speech which we
hold dear and which we have to be careful of this legislation,
any legislation, would not violate or curtail.
In all of that discussion, what is been missing is a
discussion of the free speech of Jewish students who do not
feel free to speak out. They do not feel free to support Israel
openly. They do not feel free to join student government and
talk about their Judaism and their involvement in their Jewish
community. And there are examples time and time again.
One last thing about this. I understand that if you look
only in terms of numbers across all campuses, that while some
of our academics here say, ``It is not a problem; I do not see
it in my classroom. I do not see it on my campus. I do not hear
about it.'' And then, 118 anti-Semitic acts relative to the
number of students on college campuses may not seem that great.
Why should we not be concerned about every one of those
individuals and their ability to sustain and fight back and
have a Department of Education that is willing to investigate
those kinds of attacks? This one is really hard sometimes for
me to understand. We know what is happening on college campuses
and, yes, I am concerned about professors being able teach. I
am.
But I also know that college students, like my own and
their friends, who are on campuses who actually see what is
happening, who will avoid parts of campus--I have heard from
their friends--will avoid parts of campus because they are
afraid if they are wearing a Jewish star that they are going to
be shouted down. That is not students finding their voice. That
is one student using his or her voice to stifle the free speech
of that other student. Yes, Rabbi Cooper?
Rabbi Cooper. Congressman Deutch, I just want to come again
to this visual, because it is in real time. This was posted by
a professor at Rutgers University on his Facebook page. We have
a young girl, 19 years old, who went to Rutgers because she
wants to get her degree in food science.
This is the guy she is going to have to go and sign up for
because right now there is absolutely no price to pay, there is
no red line, nothing about someone in a position of
responsibility who openly expresses such vile hate. And there
is nothing to protect that freshman from pursuing her course.
Mr. Deutch. And Mr. Goodlatte, am I so off base here? Have
we been going down the wrong path, worrying about the 118 cases
so far of anti-Semitism so far this year?
Mr. Greenblatt. Congressman, you are dead-on. I mean,
again, I know some people teach courses over the course of 15
weeks. The ADL has been tracking this for over 100 years, and
data does not lie. And what you pointed out, about the
definition, is exactly correct.
This does not inhibit the ability of an individual,
student, faculty, or otherwise to criticize necessarily policy,
but it does acknowledge, as that definition does--that
definition, by the way, that was done in consultation with
leading experts from academia and communal organizations, and
it is used by our embassies around the world to track anti-
Semitic incidences.
So, some might not like it in its abstraction, but in its
practicality, I would submit to this committee it has been
vital to our State Department doing its work to protect Jewish
communities around the world.
Mr. Deutch. Mr. Chairman, I appreciate it. Before I yield
back, I would just finally make one last point. Again,
criticism of Israel, Israel's government, and Israel's policies
are more than fair. They are welcomed here just as they are in
Israel. But when you take the position, it is one thing to
criticize those policies, but when you take as your position
the very suggestion that Israel, as a nation, does not have a
right to exist.
And you then try to impose that to shut down others, that
is not a student fighting his or her voice. That is students or
others on a college campus using their voices to silence others
in a way that is wholly unacceptable, which this definition is
simply trying to address. And I yield back, thank you.
Mr. Franks. And I thank the gentleman, and I now recognize
myself for 5 minutes. It was my turn, just for the record.
This has obviously been a very compelling hearing here
today for me. As it happens, a very good friend of mine is in
the audience, Dr. Gary Bauer, who is the head of the Christians
United for Israel, which I have been involved in that for a
long time. And I think that he is perhaps the greatest friend
of Israel in the Western World. So, I mean, the opinion is
pretty high there. And certainly, I identify with so many of
the comments here today.
Some of us are deeply committed to the State of Israel and
to the Jewish people. And consequently, when we are dealing
with the area of anti-Semitism, which as obvious to any
observer, has grown in a profound way in recent days, I would
suggest to you that whether it is from the hard, hard right or
the militant left, there are things that have come forward in
recent days that are very disturbing and cry out for a
response. And Rabbi Cooper's comments related to the necessity
that someone just needs help here. And I understand that; I
embrace that completely.
The great challenge for those of us that deeply care about
Israel, of course, is the more deeply we care, the more
desperate we are to get the policy right. And I want to try to
refer to the old medical term, you know, ``primum non nocere;''
``first, do no harm.'' And so, the challenge before
policymakers right now is to come up with the right policy.
And so, with that my first question would be to Ms. Nossel.
Ms. Nossel, traditionally our Federal civil rights laws have
not codified definitions or illustrative lists of
discriminatory motivations. That is, our Federal civil rights
laws prohibit discrimination based on race or sex, for example,
without specifying exactly what a discriminatory motivation
would be considered to be.
Now, leaving that question to the courts and a case-by-case
determination of the unique factual situations in context by
judges and juries. So, you see, we have struggled with this for
some time. If any particular definition of anti-Semitic
motivation were codified in the U.S. Code, what kinds of
definitions might be proposed for consideration as constituting
a potential civil rights violation in relation to other
protected classes? I hope the question came across clearly.
Ms. Nossel. What definitions might other protected classes
invoke to relate----
Mr. Franks. Let me say it one more time. If a particular
definition of anti-Semitic motivation were codified in the U.S.
Code, what kinds of definitions might be proposed for
consideration as constituting a potential civil rights
violation in relation to other protected classes?
Ms. Nossel. Well, it is a good question. I think it is hard
to say, but I certainly think this will give rise to efforts by
other groups to think about defining discrimination against
them, you know, as broadly as possible so that manifestations
of that discrimination are not ignored.
In one example that comes to my mind that I have worked
extensively in my career is with respect to Muslims around the
world. In an effort that they made to try to secure an
international legal ban on the so-called defamation of
religion, which really related to cartoons depicting the
Islamic prophet, Muhammad, which they regard as a very
particular and hurtful offense.
And so, when those cartoons were published, they went to
the U.N. and sought an international treaty banning the so-
called defamation of religion, which they view as kind of a
priori form of very virulent, anti-Muslim sound sentiment. And
they were concerned that the rest of the world did not see it
that way.
So, I think that is, you know, one obvious area. It is
offensive. It is not universally recognized to be as offensive
as some Muslims regard it to be. There are other Muslims who do
not regard it as offensive and take grave exception to that
effort. But I think that is one manifestation.
And you know, Ken has brought up others. You know, what
about, you know, it was Palestinian Americans, and they were
calling into question the validity of a Palestinian State.
Would they want to seek to define that as a form of, you know,
discrimination against them? Or arguments against affirmative
action that, you know, could be construed as calling into
question the validity of the presence of certain students on a
campus. You know, might that be defined as a form of
discrimination?
So, I think it is hard to know, you know, where it would
end. But opening it up, I think, does give rise to serious
concerns.
Mr. Franks. Well, thank you. You know, sometimes one of our
challenges here is when there is a complete lack of common
decency sometimes, when it comes in these situations, it is
hard to know how to respond to that best legislatively. So, Mr.
Stern, I will direct my final question to you, sir. I
understand, according to your testimony, that you wrote the
guidelines for the State Department. Essentially, that you were
the lead writer on it.
Mr. Stern. I worked very closely with my colleague, Andy
Bleecker, who did the politicking and negotiating. I was the
lead drafter. I was the one who probably wrote 75 to 80 percent
of it and got the other experts and negotiated, you know, which
parts to put in----
Mr. Franks. Given that, do you think that that guideline
should be something we should consider, to codify and statute?
I am asking a pretty hard question here. But do you think that
something like that would be appropriate in statute, given the
discussion today?
Mr. Stern. For a campus, absolutely not. That was not the
purpose that it was designed for, and, you know, I encourage
the State Department to use it in its reports and bilateral
relations. I worked with Rabbi Baker on a hate crime training
program in New York. Those things were fine.
A campus is a different venue. It is about ideas. It is
about giving students and faculty the opportunity to think
outside the box, to be wrong, and not to measure what they are
saying against some definition that is constitutionally
enshrined. So, particularly for this venue, I think it would be
an atrocity.
Mr. Franks. Well, thank you all. I am sorry. I am going to
have to go to the next guy here, but I want to thank you all,
and God bless Israel. And Mr. Cicilline, I recognize you, sir,
for 5 minutes.
Mr. Cicilline. Thank you to all the witnesses for this
really thoughtful discussion. I think it is very important to
say at the outset that, it is my view at least, that this spike
in anti-Semitism is something which should be of grave concern
to all of us. And we should determine the best and most
effective way to respond to it, to eliminate it in this country
and around the world.
I think it is important to consider the context of this,
and that is that we have an administration that, I think, in
many ways has stoked this environment by refusing to speak out
against anti-Semitism, white supremacy, and xenophobia.
President Trump unapologetically came to the defense of
white nationalist protesters in Charlottesville who chanted
anti-Semitic slogans. Former White House advisor, Steve Bannon
has made a career out of promoting racist, anti-Muslim, and
anti-immigrant ideas. Another former Trump advisor, Sebastian
Gorka, was found to have ties to a Nazi group.
And this administration has also disappointingly failed to
appoint an envoy of the office to monitor and combat anti-
Semitism through which the U.S. encourages foreign governments
to protect vulnerable Jewish communities around the world. So I
think we would be ignoring this sort of elephant in the room to
not understand the context of this spike and the gravity of it.
I also find it kind of ironic in a lot of ways where in our
tradition is, by the way, a free and unhindered exchange of
ideas that humanity seeks the truth. And you only need to go to
the Talmud to see the exchange of ideas on every page by the
rabbis. So, this idea of respecting and honoring the free
exchange of ideas is an important Jewish value, and obviously
an important American value.
So, I guess my kind of simple question is--I think Rabbi
Cooper said, you know, when there is something that says, you
know, you do not belong here because you are a Jew; that seems
sort of an obvious anti-Semitic declaration. I think everyone
would agree that criticism of Israel and policies of Israel and
disagreement is not anti-Semitic as a principle.
And so, if we could have a definition which attempted to at
least identify anti-Semitic activity, in the way that Rabbi
Cooper described it, but protected legitimate policy criticism,
is that something we could do successfully? I recognize that it
would open the same kind of discussion with other categories.
Assuming we were prepared to accept that risk, I also
reject the notion that well, just--with all due respect to Mr.
Greenblatt, who I respect enormously--it is not binding. It
matters. We ought to get the definition right if we are going
to direct people to consult it.
So, my question for the panel really is, am I
oversimplifying this? Could we craft a definition that strictly
attempts to identify anti-Semitism, free from criticism or
disagreement on policy, as they say, or is that impossible to
achieve? Dr. Trachtenberg, I will start with you.
Dr. Trachtenberg. I think it is an impossible task. I think
if we asked all nine of us for our definition of anti-Semitism,
we would have nine variants on a theme, certainly. I think we
would all agree that the core of anti-Semitism is hating Jews
simply for being Jewish. If you go much beyond that, you are
going to start entering into contested territory; contested
territory within the Jewish community itself among scholars of
anti-Semitism, we are going to enter into that territory.
So, if you want to have the most narrow definition, I think
that is a baseline from which we all agree. Once you go beyond
that, we are going to enter into very contested waters, and the
fact that it is contested means that we should allow people who
study this issue to have the opportunity to have all the
debates and all the conversations that they need in order to
keep fleshing this out.
As we do with a page of the Talmud, keep turning it over
and turning it over again to discover all the truths and
everything that we can identify within it. Thank you.
Mr. Greenblatt. I would submit, Mr. Congressman, that it is
not impossible, that my professionals do it every single day,
and to clarify, the ADL was also involved in writing that
definition that the State Department uses, and we think it
works.
But ultimately, who are the arbiters of this? Let me
introduce you to the families whose children have been bullied
and have had pennies thrown at them. Let me introduce you to
the parents whose children had their lockers defaced with
swastikas.
Let me introduce you to the families themselves who have
been harassed because of their religious garb or coming out of
a synagogue. Let me introduce you to those people and you can
ask them whether indeed there are nine different definitions or
there is one.
So, if you look at the definition that our public servants
use every day, Mr. Congressman, it does not say criticizing
Israel is anti-Semitism. That is not what it says. Period.
Mr. Cicilline. Mr. Stern.
Mr. Stern. I was going to say that the examples that Mr.
Greenblatt gives are okay, but you do not need a definition to
get there. What you need in these situations is a clear
understanding that Jews are selected to be victims of
harassment because they are Jewish.
And it does not matter whether that person is thinking of
this definition or that definition, or is philosemitic, or
just, you know, wants to do it because they think it is fun. If
a Jewish person in a campus is being harassed because they are
being selected because they are Jewish, that is sufficient. And
you do not need to open up this whole other can of worms.
Mr. Cicilline. So, could that be the definition?
Mr. Stern. Well, in the case that I brought in the Vestal
District, nobody talked about a definition. Nobody talked about
that you have to show that a swastika is anti-Semitic. It is
clear that these kids were picked upon simply because they were
Jewish.
And I would add that, you know, again, we talk about the
pro-Zionist, pro-Israel students. I have also seen examples
that break my heart on campus, too, where a kid who is trying
to figure out where they think about Israel and all this and
should it exist.
And what is happening with the Palestinians, are being
called traitors or Kapos and some who were wearing yarmulkes,
saying, ``Take that thing off.'' That offends me just as much.
Mr. Cicilline. Thank you. Thank you, Mr. Chairman, for the
indulgence, and I yield back.
Mr. Franks. I thank the gentleman. I am left wondering how
being the first President to stand in front of the Western
World and pray projects some anti-Semitic sentiment. But I
would----
Mr. Cicilline. Would you like me to answer that, Mr.
Chairman?
Mr. Franks. No. I call upon the gentleman from Texas, Mr.
Gohmert, for 5 minutes.
Mr. Gohmert. Well, I can help you out. Anytime a
conservative Jewish person cares to speak on a college campus,
they stand a much greater chance of being banned or being
labeled as a hater by the haters.
Well, my friend, Caroline Glick. She believes what the
Bible indicates was the Promised Land to the children of
Israel, and because of that, she canceled at University of
Texas, right in my own State. It was not because she was
Jewish, it was because she was a conservative Jewish person.
And say, George Soros were to come and do as he often does and
beat up on Israel or Netanyahu, he would never be banned from a
college campus. He would be welcomed with open arms. So, let's
be real here. We are talking about particularly conservative
Jewish people.
Now, when it comes to school children, when it comes to
people that get swastikas put on their lockers and things like
that, or vile things said about them, that seems to be just
because they are Jewish. And I have got to tell you, I majored
in history in college. I never dreamed we would get back to the
level of anti-Semitism that we are seeing in Europe today, in
Germany today.
And I brought up to some German ministers back in August,
when some of us were visiting over there, how ironic it seemed
to me to be that you had Germany that wanted to show--and I am
speaking to ministers of the country, so I am being
respectful--but how Germany since World War II, since the
Holocaust, has gone out of their way to try to show how open
and loving they are to all peoples.
So they bend over backwards to bring in what they think are
Muslim refugees, some of which were not--they were there to,
you know, bring down Europe as the Battle of Vienna prevented
previously--but you know, I said, ``So, you are bringing in
people who are raised to hate Israelis, to hate Jewish people,
and by virtue of your act to show how loving and open you are,
you are bringing in people that make you appear to be anti-
Semitic again.''
And of course, that raised some hackles and got some people
upset. But it is certainly the way it appears.
There are college campuses that are going out of their way
to try to appear so embracive of Islam that they become anti-
Semitic. And when my friends condemns--and I mean true friends,
Bannon and Gorka, they were called--these guys are not anti-
Semitic, and they are not anti-Muslim, but they certainly
recognize that there is a portion of Muslims who believe the
United States and the Western civilization must be brought
down.
And there is nothing wrong with saying that and believing
that, and nobody should have rules pulled out to prevent them
from speaking for saying that.
I mean, for heaven's sake, Brandeis University withdraws
their offer of a doctorate to Ayaan Hirsi Ali. I mean, she is
an atheist, as I understand it, but what a courageous person. I
mean, what happened to Brandeis? I mean, have they forgotten
why they were founded?
I know Harvard and Yale forgot how they were founded. They
do not want conservative Christians or conservative Jews coming
in and speaking. But they welcome anybody that will come in and
bash Israel. So, I welcome all the comments I have been hearing
from people across the aisle condemning anti-Semitism, but I
would hope my friends will be just as upset when it is a
conservative Jew.
And as far as the boycott that seems to be growing across
the world, and particularly in Europe, of anything made in
Israel, it is just another effort to slam Israel. But I have
stood there at the tomb of King David's father, Jesse, in
Hebron. Hebron also is where Abraham, and Sarah, and Isaac, and
Jacob, and their wives are buried, right there.
And I am supposed to say that that is absolutely not
Israeli territory? And we should ban anything coming from that
area? That is ridiculous, and we need to be more realistic in
our assessment of what truly is anti-Semitism; it applies when
it is a conservative Jew. Thank you. I yield back. I see my
time is up.
Mr. Franks. I thank the gentleman, and I now recognize Mr.
Raskin for 5 minutes.
Mr. Raskin. Mr. Chairman, thank you very much. The very
first thing that I did as a newly elected member of the House
of Representatives was to organize a tour of the freshman
class, the Democrats and Republicans both, to the Holocaust
Museum, and we spent 2 hours there. And I believe very strongly
that the touchstone of our politics has got to be in opposition
to anti-Semitism and racism and the other hatreds that made the
last century such a nightmare for so many people.
I am also a professor of constitutional law, so I am very
sensitive to the free speech concerns that have been raised by
many of the witnesses today. But I want to try to look for some
common ground coming out of the panel, and I want to start with
this.
Title VI prohibits discrimination based on race, color, and
national origin, but not on religion. Does everyone on the
panel agree that religion generally should be covered under
title VI? And forgive me, I have so few minutes and there are
so many of you, but if you would just, if you do not mind going
down the aisle, does everybody agree that religion should be
covered? Yes, no, or no comment will suffice. Starting with
Rabbi Baker, if you would.
Rabbi Baker. Well, my focus is Europe and not here, but I
think that you open an entirely new avenue of debate when you
say it should cover religion.
Mr. Raskin. Yeah. Okay. I was hoping for yes or no because
I have so little time.
Ms. Nadell. Okay. Yes.
Mr. Raskin. Okay.
Rabbi Cooper. Yeah, I am not sure I would address the issue
as we are here today. I think it would expand it properly so,
but it would be a whole other discussion to come back at
another time.
Mr. Raskin. Okay.
Dr. Trachtenberg. I actually agree with Rabbi Cooper here
that this has actually opened up a larger set of issues that we
need to address, not a simple yes or no.
Mr. Raskin. Okay. Okay.
Mr. Clement. And I would agree. It is complicated. You have
other things, like the Free Exercise Clause and the Religious
Freedom Restoration Act. I mean, there is a lot of things that
make it complicated.
Mr. Raskin. Okay.
Ms. Hagee Parker. Likewise, it is outside the scope of our
organization and its mission.
Mr. Greenblatt. It is complicated. I think it is
complicated as well, but religion should certainly be
protected.
Mr. Raskin. Okay.
Ms. Nossel. I think religion should be protected, but in
ways that are careful to be compliant with other constitutional
and legal provisions.
Mr. Stern. And I would agree with that. It is particularly
about harassment, as opposed to religion.
Mr. Raskin. Okay. It seems like there is a category of
speech that has been heavily contested here which is that
relating to the Israeli government or the Israeli State, in
terms of its anti-Semitic content. But would everybody agree
that, for example, what took place in Charlottesville is anti-
Semitic?
But does anybody believe that, for example, Richard
Spencer, who now seems to be on a nationwide speaking tour,
does everybody agree that he does have a First Amendment right
to appear at least on public campuses? Does anybody think that
he does not enjoy a First Amendment right to speak on public
university campuses? Everybody seems to agree that he does,
okay.
Mr. Greenblatt. Mr. Congressman, unless he incites violence
against people.
Mr. Raskin. Unless he incites violence. Yeah. But in terms
of the content of his speech, that he should not be banned for
that reason. Okay.
So, I want to go to the question that has tormented the
country for a while now about statues of Confederate soldiers,
Robert E. Lee and Jefferson Davis, and so on. I have got no
doubt that the vast majority, or I would dare say all racists
support continuing keeping those there.
But a lot of people who support keeping those statues up
are not racist, right? So, would it not be a problem to use as
indicia of racism whether or not someone supports having those
statues present there? And perhaps----
Mr. Stern. I would agree with that. I mean, my view is not
germane to this exactly, but if you remove all the statues,
people do not see the history. I would rather put them in
context and let them be used as a way to explain why they were
put up in the first place to, you know, support segregation and
so forth----
Mr. Raskin. But back in----
Mr. Stern [continuing]. That would not be a hateful view.
Mr. Raskin. Okay. All right, now let me come to this now.
So, my dear colleague, Mr. Deutch, read the operative
definition that he had. I might even broaden it a little bit
just to say that anti-Semitism is discrimination, prejudice, or
hostility against Jews. It seems like what is getting everybody
into this seared in controversy is the illustrations or the
examples that were offered in the State Department policy.
But does anybody know of an antidiscrimination statute that
has been passed by Congress that includes the illustrations or
examples? Because to my knowledge, there is not one. And so,
does anybody think that those illustrations or examples are
necessary to the definition?
Rabbi Baker. Yes.
Mr. Raskin. Okay. Can you explain, if you would, Rabbi?
Rabbi Baker. Well, the whole idea of the examples was to
show how it plays out in a practical way so people who have a
responsibility to address the problem will understand it.
Mr. Raskin. Right. Let me just cut you off there for a
second, because I have so few seconds left. But when we wrote
the title VII Statute, when we talk about race discrimination
or sex discrimination in the workplace, we lead it broad and we
let the courts work it out, whether or not there is a
discriminatory animus or motive.
So I am just thinking in terms of trying to keep
civilization together here and to keep our unity together, why
would we get into a series of controverted examples that are
going to divide people, as opposed to stating what the
principles are and then allowing those to be worked out in
practice? I do not know, Dr. Trachtenberg.
Rabbi Baker. When Congress passed the----
Mr. Raskin. Let me just go to Dr. Trachtenberg, and I am
happy to come back to you.
Rabbi Baker. Because in 2004, in the Global Anti-Semitism
Review Act, Congress said that anti-Semitism has at times
``taken the form of vilification and Zionism.''
Mr. Raskin. Sure. Okay. So, but I am talking about a
discrimination statute. Dr. Trachtenberg.
Mr. Franks. The gentleman's time is expired, but Dr.
Trachtenberg you can answer.
Dr. Trachtenberg. I am, thank you. Well, the examples are
particularly problematic against the idea of having a
definition which is going to box us in in terms of what anti-
Semitism is, is really at the root of our discussion here.
Mr. Raskin. Thank you very much. I yield back, Mr.
Chairman. Thank you.
Mr. Franks. I thank the gentleman. And now, the gentleman
from Texas, Mr. Ratcliffe, is recognized for 5 minutes.
Mr. Ratcliffe. Thank you, Chairman. I appreciate all the
witnesses being here today. You know, our Nation's college
campuses are supposed to be a marketplace of ideas where
students from all kinds of different backgrounds can learn new
perspectives. Based on everything I have heard, it seemed like
a lot of our college campuses have become bastions of self-
proclaimed political correctness, and that in turn has led to
the outright harassment of some students based on their
beliefs.
And I think that is readily apparent in the treatment of
Jewish students across the country. I refer to the report--I
think it was Mr. Clement, it was in your testimony--about just
this year, 1,299 anti-Semitic incidents from January to
September. I think, again, it is troubling that political
correctness seems to have allowed anti-Semitism to flourish.
But again, I appreciate the thoughtful discussion here from all
the witnesses as we try to get back to having our institutions
of higher education be that marketplace for ideas while also
stemming the rising tide of anti-Semitism. I appreciate all of
your perspectives today.
Mr. Clement, I know one of the things that you focused on
in this Anti-Semitism Awareness Act, and, you know, I read your
anticipated responses to the First Amendment concerns and
regulations of speech. Is it oversimplification to say that
having a definition, as purposed within the Act, is trying to
find that line between speech that is anti-Zionist versus
speech that is anti-Semitic?
Mr. Clement. I think that is what the definition is trying
to get at, Representative Ratcliffe. You know, there is a
particular concern in the context of anti-Semitism that I am
not sure is present in some of the other discrimination
prohibited by title VI, which is you do have this ability for
people to essentially cloak it and say, ``Oh, it is not anti-
Semitic, it is just anti-Zionist.'' And so, I think the
definition is trying to get at that.
You know, the other thing, and I know a couple of questions
have sort of, you know, kind of gotten to the question of do we
really need a definition here? And what I would say to that is,
you know, in the abstract it might be fine to have anti-
Semitism defined on a case-by-case basis over time, but to have
a case-by-case definition you need cases. And one of the things
I think everybody is seeing here is that it is not that there
are not anti-Semitic incidents on campuses, and yet there are
no enforcement actions.
And so, I do not think we have, sort of, the luxury of just
letting, you know, the Education Department sort of develop the
definition over, you know, the course of a number of
enforcement actions. I think, in a sense, we need to jumpstart
the process. And I think the definition is designed in part to
do that, and then in part to guide the discretion of the
Education Department officials.
Mr. Raskin. Well, I think I agree with you. I think there
needs to be a specific point where we can point and have a
determination of where criticisms of Israel cross over into
anti-Semitism. And I go back to that report that is referenced
in your testimony about the 1,299 incidents, and I also go to
Rabbi Cooper's written testimony that the Department of
Education's Office of Civil Rights has never found a civil
rights violation in any claim filed on behalf of Jewish
students.
So, put on your Solicitor General hat. If you were making
this argument to a court, is the fact that you have all these
reported incidents, yet no violations found. It would seem like
that that is a violation of equal protection under the law for
Jewish students based on that type of evidence.
Mr. Clement. I think it would sure be a difficult thing for
any Solicitor General to try to explain, and I think it is the
kind of thing that would give rise to an inference that
something other than just looking for the exact right case and
prosecutorial discretion is going on.
Mr. Raskin. Rabbi, I want to let you weigh in on that as
well.
Rabbi Cooper. Congressman, let me make just two points very
quickly. This definition, you know, had an evolution, starting
with the OSCE, 56 out of 57 countries, of course, minus Russia,
eventually agreeing on, and the evolution down to our
discussion this morning. It is probably the best definition
that we are going to get, and it is the most relevant one.
To really summarize, and I am pleased both Mr. Franks and
the chairman is here. You have the wall-to-wall leadership of
the American Jewish community here. We came, I would say, hat
in hand. We have a problem. We need your help. And I think what
we would respectfully ask for is after the appropriate
deliberations, that with all of the Congressman Raskin and
former professor, all of these important questions that have
been raised, we need to move the ball forward. We hope you will
send this to the floor of the House for further deliberation.
I have no doubt that if it is passed there will be many
challenges, just by virtue of the testimony you heard today.
But you have the entire Jewish leadership of the American
Jewish community coming together united, something that
apparently nothing less than this great committee has been able
to achieve. And we really hope that after the appropriate
deliberation it will be moved forward for a vote on the floor.
Mr. Ratcliffe. My time is expired, Rabbi, but I will tell
you that I agree with that sentiment. And if I was sitting on
the top row, I might have a little more influence in making
that happen. But I appreciate you all being here today.
Chairman Goodlatte. Thanks, gentleman. And I recognize the
gentleman from Illinois, Mr. Schneider, for 5 minutes.
Mr. Schneider. Thank you, Mr. Chairman. Thank you for
calling this important hearing. I want to thank all of the
witnesses today for sharing your perspectives. I do want to
take the prerogative in welcoming in the gallery Lisa Shuger,
who represents the Jewish Federation of Chicago, where I
represent.
As I have listened to the testimony today, the questions, I
cannot help but listen as a Jew. As a parent of Jewish college
students, one current and one recently graduated, I represent a
State in which at least six of our universities have recently
experienced anti-Semitic incidents.
I am, personally, gravely concerned about the recent
significant rise in anti-Semitism on our campuses, in our
communities, in fact, around the world. Mr. Greenblatt, you
said, we must count each and every one of the incidents and
leave none of them to go unanswered. What we are seeing on
campus, I fear, is an increasingly organized, concerted, and
wellfunded effort to create a hostile environment for Jewish
students that publicly express their Judaism as well as their
support for the Jewish State.
It does not take a lot of events or a lot of incidents to
make it difficult for Jews to feel comfortable in the academic
environment where they are, as I think we have all agreed,
seeking the opportunity as every student should have to explore
new ideas, to find their voice, and to reach their own
conclusions. That is what the university is for. But I do worry
about this difference.
So maybe I will start with you, Mr. Greenblatt. Do you see
a difference between free speech and a concerted effort to
create a hostile environment?
Mr. Greenblatt. First of all, Mr. Congressman, thank you
for the question. As a former resident of the North Shore of
the Chicago area, it is nice to see you here today. I think it
is safe to say that there are challenges, again, as I had
stated in my oral testimony from both what the Congressman
Franks called the ``hard right'' and sort of elements of the
militant left. Neither side of the ideological spectrum is
exempt from intolerance.
But whether they are organized campaigns, or they are
spontaneous actions, we need to be clear about the fact that,
again, title VI does not explicitly protect these Jewish
students.
And considering the number of cases we are dealing with on
campus today, the stat that the Congressman Deutch represented
was correct. There were investigations led by the Office of
Civil Rights, Department of Education, case of anti-Semitism.
Zero.
Let me repeat, that number is zero. We believe having a
definition will make it easier for whoever is administering the
office, whether it is indeed Mr. Marcus or someone else, to
ably do their job and ensure that Jewish students have the same
protection that other students have.
It does not preclude political speech. It does not limit
freedom of expression. It simply ensures the definition that we
also worked on is utilized by policymakers and campus
administrators.
Mr. Schneider. Mr. Stern.
Mr. Stern. I just want to share a short anecdote. I was
doing a training for students at Columbia a number of years ago
on anti-Semitism. We started at 7:00 and we were still talking
at 11:00, and they said this was the first time they felt open
to speaking about Israel.
I said, ``Oh that is interesting. Is this the only issue
that you have trouble speaking about openly?''
``No.''
``Your friends at other campuses have a problem, too?''
``Yes.''
Everybody is sort of worried about where they are going to
step into a landmine in the context today. And what I worry
about this legislation is it feeds into that rather than breaks
it down.
I think the answers are not with legislation that is going
to create an additional sense of, you know, these are folks
here and those are folks there. But initiatives that campuses
are lacking on to how do we have these difficult discussions.
There are very few classes on anti-Semitism.
I think if you have more classes on anti-Semitism, students
are going to understand the issues that combine us and divide
us here today much more deeply and it will affect the campus
environment. Those are the things that need to be done, and not
this type of legislation.
Mr. Schneider. Well, I appreciate that, and I agree that we
need more classes on anti-Semitism. I think that would be a
beneficial step forward. But that does not change the fact that
there are efforts on these campuses to make these Jewish
students feel profoundly uncomfortable, unwelcomed. I think it
was you who said putting out a sign, whoever you are, saying,
``You are not welcome here.'' I have been to campuses where the
signs say, ``Hate is not welcome here.'' I think that is a much
better sign.
Mr. Stern. That is right. And the question is, how do you
help administrators? And you know, Mr. Greenblatt has said
that, too, in his testimony: how do you help them think through
cultivating that environment in which you have the capacity for
students to be wrong, to say what they think, but then others
to identify what is hateful and then to teach about it?
There should be no question that Israel and Palestine, as
contentious as that is, should be an ideal subject for getting
students to think about how do you deal with the competing
narratives and competing histories? How do you look at
identity? How do you look at the equities, and so forth? Rather
than just feed them into, if something is said about Israel
that is anti-Zionist, that that is anti-Semitism and that ends
the matter. It should be the beginning of the questions, not
the end of it.
Mr. Schneider. Right. Rabbi Cooper, my time is expired
but----
Rabbi Cooper. Just very quickly. Classes alone and
dialogue, as welcome as they are, will not protect your kids on
campus. And when there is an incident--and we have now heard
over the last few hours, there are many--we need the help of
our government to ensure that Jewish students are afforded the
same protections as everyone else on campus.
Mr. Nadler. Will the gentleman yield for a second?
Mr. Schneider. I will yield.
Mr. Nadler. Okay, great. I just want to make clear for the
record that a mistaken statement a moment ago. Not every Jewish
group supports this bill. I have a letter here, for instance,
from J Street U opposing it, and there are groups that do not
support the bill and the groups that are. So, I just wanted to
clear that up for the record. Thank you.
Mr. Schneider. My time has expired. I wish I had more, but
I will yield back.
Chairman Goodlatte. The chair thanks the gentleman and
recognizes the gentleman from Colorado, Mr. Buck, for 5
minutes.
Mr. Buck. Thank you, Mr. Chairman. Dr. Trachtenberg, quick
question. In 2013, did you sign a petition to boycott a
conference at the Hebrew University in Jerusalem, and did the
petition state that the Hebrew University is deeply complicit
in the occupation, settler colonialism, and apartheid?
Dr. Trachtenberg. Yes.
Mr. Buck. I cannot hear you.
Dr. Trachtenberg. Yes, I did.
Mr. Buck. Okay. And did you also vote for the Modern
Language Association to boycott Israel?
Dr. Trachtenberg. I am not a member of the Modern Language
Association.
Mr. Buck. But did you vote for a boycott of Israel with
that group?
Dr. Trachtenberg. I would not have had the capacity to vote
for it because I am not a member of the MLA.
Mr. Buck. So, that is a no?
Dr. Trachtenberg. No.
Mr. Buck. And Mr. Clement, I wanted to ask you a question.
And I guess I want to respectfully point out something that my
colleague, Mr. Raskin, said. He said that all racists are in
favor of keeping the Civil War monuments, to paraphrase, and
that indicates something to me that is deeply troubling. What
he is really saying is that racists have to be white in this
country. There is no such thing as a black racist that might
want to take down those monuments. And I think when we look at
this issue, we look at it through our own lens, through our own
bias.
And that is what, I think, we are really struggling with
here, is how do we respect the Constitution and at the same
time deal with a deeply troubling issue on college campuses,
and that is the issue of anti-Semitism, and bigotry, and
hatred.
And my understanding is that there is a Supreme Court case
in 1999 that gave us a definition, the Davis case, and I just
want to quote that and then ask you a question. It found that
``peer-on-peer harassment in the educational context is so
severe, pervasive, and objectively offensive and that so
undermines and detracts from the victim's educational
experience, that the victim students are effectively denied
equal access to an institution's resources and opportunities.''
If that is the Supreme Court definition, why do we not use
that definition in this bill and instruct the Department of
Education to proceed in that way?
Mr. Clement. So, Representative Buck, I think that is, you
know, a very fair question and I think that what I would say is
that right now I assume that in administering, you know--it is
slightly different context, title VI versus title IX, and the
like--but I would assume that that is in fact the standard that
the Education Department is using right now in administering
title VI----
Mr. Buck. Well, it sounds like it is not using any
standard, because it has not done any work in this area, in
this desperately needed area.
Mr. Clement. Well, but I think there is two issues to keep
separate. And one is, what is the level of conduct that rises
to the level of harassment? And then, the second question is:
if there is harassment, then title VI still does not prohibit
it, if it is not on the basis of race, national origin, and the
like.
And so, what we are really struggling with in this
particular context is to try to get a definition of anti-
Semitism that will work for the motive part of the inquiry.
I do not think this bill is designed to really move the
needle on what level of harassment is necessary to sort of
bring a title VI action. And I think, though, as I have tried
to suggest, that, you know, that question probably has much
more to do with the First Amendment than the question of how we
define anti-Semitism.
And I would say, from a First Amendment perspective, we are
much better off having government officials with a definition
than without a definition.
And just to refer to, just for a second, the statistics we
have heard a lot about. So, there are zero cases currently
being brought. Now, in the event that the reason zero cases
have been brought is because not one of the cases that they
investigated rose to the level of harassment under the Davis
case, then that would be an acceptable result from a First
Amendment standpoint. That would be the reason these cases are
not being brought, is that they do not rise to the level of
harassment.
Now, I strongly doubt that is what is going on, and if the
question is, if some subset of these hundreds of cases rose to
the level of harassment, and they were not being brought
because of some confusion about what constitutes anti-Semitism,
that is the problem. That----
Mr. Buck. I am going to interrupt you just for a second,
because I want to get Mr. Greenblatt's view on that. Which is
it? He just gave you two options.
Mr. Greenblatt. Well, I cannot say definitively because I
am not familiar with every case----
Mr. Buck. Sure you can.
Mr. Greenblatt. I do not know all the cases they are
looking at, but I can say, indeed, it is, you know, it would be
reasonable to look at those cases and determine whether or not
the lack of a definition prevented the office from doing their
job effectively with respect to these specific incidents where
Jewish students are affected.
Mr. Buck. Thank you. My time is up, and I yield back.
Chairman Goodlatte. The chair recognizes the gentleman from
Georgia, Mr. Collins, for 5 minutes.
Mr. Collins. Thank you, Mr. Chairman. You know, I think
this has been an issue in discussion, listening to, you know,
putting nine people on the panel and all going at it. Wow, this
is like throwing the ball and having us run and seeing who wins
at the end of the day.
But it has been good to discuss this because this is one of
the things, anti-Semitism and other forms of discrimination,
are abhorrent everywhere. It does not matter where they are
located, and this is an issue that is particularly troubling
when bigoted acts and harassment prevent students from
basically accessing education.
But I want to focus back because I think--I look like I am
probably the last one here--to going back to one of the
arguments that I have heard about that is against this in many
ways is the First Amendment issue. This is a First Amendment
issue.
Mr. Clements, you have been in front of the Supreme Court
more than any of us here, and also by the way my Legislative
Director, Sally Rose Larson, who took Constitutional Law for
undergrads, she says hello, but she is also glad she is not
here. She did not want to be tested on this. So. We appreciate
that.
Mr. Clement, you have argued these cases and I think you
might be in need to discuss this. I want to discuss it from
this level. Title IV of the Civil Rights Act prohibits
discriminatory conduct, not speech. Correct?
Mr. Clement. Title VI, that is right. It is directed at
harassment, as we were discussing.
Mr. Collins. Okay. What role does the evidence of
discriminatory speech play in analyzing allegations of a
violation of the Civil Rights Act?
Mr. Clement. And that is where the Wisconsin v. Mitchell
case makes quite clear that evidence of--including speech--can
be used for an evidentiary purpose. And so, even though I
think, you know, in Wisconsin v. Mitchell, you had nine Supreme
Court justices that are very protective of the First Amendment,
they unanimously held that you can use speech in that kind of
evidentiary way.
Mr. Collins. To show the intent that we are talking about
here?
Mr. Clement. Right. Exactly.
Mr. Collins. Okay. So, let's continue on in this process.
In consideration of potential violations of Title VI stemming
from discriminatory-motivated harassment, how does one
distinguish between the protected speech and the nonprotected
conduct?
Mr. Clement. I think that is where it is really the
harassment test that has to do the work. Because, you know, the
Supreme Court has basically said that, you know, that there is
a different level of protection for conduct as opposed to
speech.
And when you have conduct that rises to the level of
harassment, you know, I think it is common ground that it is
perfectly permissible to say that we are going to prohibit the
harassment if it is motivated by race, national origin, or
anti-Semitism. And then, it is just a matter of trying to
figure out whether that is, in fact, what motivated the
harasser.
And in that inquiry, then you cannot take into account
speech. It does not raise a First Amendment problem, by virtue
of unanimous Supreme Court. And it just seems that in figuring
out whether the speech, the conduct, sometimes it could be a
combination of both; you know, somebody spray paints a swastika
on somebody's dorm room, and that is probably more conduct than
speech. But all of that can then be used in order to make a
determination whether the harassing conduct was anti-Semitic
and, therefore, violates title VI.
Mr. Collins. Many times, in looking at this, you know,
there is a concern in many circles of are you, you know, in
crossing over this area, especially in hate crimes or other
things, are you criminalizing the thought? I am not sure if a
definition, in the sense that we are talking about here with
this Act, actually goes that far. And what you are saying, with
this definition, impinge on this First Amendment right or some
of the list of horribles that have come from several on the
panel today?
Mr. Clement. I do not think it would, and I think maybe one
way to think about the difference is this would be a very
different situation if this was a proposal to say that the
following anti-Semitic speech will be prohibited, and here is
the definition. But that is not what this law does. It takes an
existing framework that only reaches conduct that rises to the
level of harassment based on a certain level of motivation, and
then uses this as a way of figuring out what motivation counts.
Mr. Collins. And where it does not seem to be working at
all. Since we are not seeing this being brought forth. Although
we are seeing out in the world very evidently, we are not
seeing it brought in these cases.
Mr. Clement. That is exactly right. Look, in the abstract,
one could say that maybe we do not want a definition written
into the statute and we would prefer to do it case by case and
have courts develop it, but you need cases.
Mr. Collins. Right.
Mr. Clement. And I think what we are seeing here is that
there are no cases that are allowing us to develop a definition
through the judicial process. And so, it makes sense why
Congress would want to step in here, even if it would not
necessarily feel like it needed to step in in some other
context.
Mr. Collins. And I appreciate the other witnesses. I do
have one last question because it was brought up earlier
concerning--your testimony concerning this--into what was put
into this. As it is shifting to this legalization, the Anti-
Semitism Awareness Act, includes a savings clause. And
hypothetically, without the savings clause, in your opinion,
would it violate the First Amendment, and if so, why?
Mr. Clement. I think this would be perfectly constitutional
without the savings clause for the two principle reasons that I
have given.
One is that it essentially is not a direct regulation
speech, but only essentially an evidentiary test for the
motivation for harassment.
And second, because the definition actually serves First
Amendment values. I just think the savings clause, you know, to
the extent that with any statute, somebody can come in and say,
``Well, maybe it is going to, even though it is not
unconstitutional on its face, maybe it will be applied in the
wrong way.'' And I think the savings clause gives some
additional sort of comfort that that is not the way that the
statute would be applied.
Mr. Collins. Well, I thank the panel today, and all nine
opinions have served well to know that you can apply it pretty
much any way from any angle that you want. But I think it has
been a good discussion.
I agree with my friend from Texas just a few minutes ago,
this is something we need to, I think can move forward on
without infringing on the First Amendment rights, which was the
overall issue, and bring some clarity that may be lacking at
this point today. But that is the reason we move forward. That
is not simply because we have questions that we should not move
forward, it is the very fact that we have questions that I
believe should move this forward. And with that, Mr. Chairman,
I yield back.
Chairman Goodlatte. The chair thanks the gentleman. I want
to thank all the witnesses. This has been an excellent hearing.
I think we have helped to shed a lot of light on a very
important issue. I am deeply concerned about what is happening
to Jewish students on college campuses, and I think that we
need to work together to find the right approach to make sure
that the forces are brought to bear, including the U.S.
Department of Education, to solve this problem. And I am sure
this dialogue will continue. But all of you have made a great
contribution today, and I think you have helped to educate the
members of the committee.
So, this concludes today's hearing, and I, again, thank all
of you for your participation. And, without objection, all
members will have 5 legislative days to submit additional
written questions for the witnesses or additional materials for
the record. And with that, this hearing is adjourned.
[Whereupon, at 1:01 p.m., the committee was adjourned.]