Letter to Senators Schumer and Sanders urging them to oppose H.R. 6090 which codifies the flawed IHRA definition of antisemitism

Senator Chuck Schumer

Majority Leader, United States Senate

fax: 202-228-3027

 

Senator Bernie Sanders

Chair, Health, Education, Labor and Pensions Committee

United States Senate

fax: 202-228-0776

 

Dear Senators Schumer and Sanders:

 

We write on behalf of the Middle East Studies Association of North America (MESA) and its Committee on Academic Freedom to express our grave concern about H.R. 6090, the “Anti-Semitism Awareness Act of 2023,” which the House of Representatives passed on 1 May 2024 and which the Senate will consider soon. By incorporating into federal law the flawed IHRA definition of antisemitism and the troubling “Contemporary Examples of Antisemitism” that accompany it, this bill conflates legitimate criticism of Israel, and of Zionism as a political ideology, with antisemitism. It thereby endangers the constitutionally protected right to freedom of speech as well as academic freedom at this country’s institutions of higher education.

 

MESA was founded in 1966 to promote scholarship and teaching on the Middle East and North Africa. The preeminent organization in the field, the Association publishes the International Journal of Middle East Studies and has over 2,800 members worldwide. MESA is committed to ensuring academic freedom and freedom of expression, both within the region and in connection with the study of the region North America and elsewhere.

 

H.R. 6090 purports to further the goals of the U.S. National Strategy to Counter Antisemitism, issued by the White House on 25 May 2023, which deemed it critical “to increase awareness and understanding of antisemitism, including its threat to America,” “improve safety and security for Jewish communities,” and “reverse the normalization of antisemitism and counter antisemitic discrimination.” We are fully aware of, and deeply troubled by, the rising tide of racism, xenophobia, antisemitism and Islamophobia across the United States, and combatting antisemitism and all other forms of racism, bigotry and discrimination is an essential duty of our colleges and universities. However, by explicitly adopting the flawed IHRA definition of antisemitism and its accompanying examples as the only definition of antisemitism to be used by the federal government, including the Department of Education in its investigations of discrimination complaints under Title VI, this bill would actually hinder the struggle against antisemitism and gravely threaten both free speech and academic freedom. We note that the American Association of University Professors and the American Civil Liberties Union share this assessment of the dangers posed by enshrining the IHRA definition in law.

 

As we have pointed out on numerous occasions (see for example here, here and here), the IHRA definition and its accompanying examples conflate criticism of Israel and of Zionism with antisemitism in a way that threatens constitutionally protected freedoms of free speech and inquiry. We believe that requiring the federal government to define antisemitism so broadly and vaguely will have a chilling effect on scholarly and public discussion of international affairs and current events in this country. Indeed, it is likely to have the perverse effect of defining as antisemitism even criticism of Israeli policies advanced by Israeli scholars, or by Jewish students and faculty in the United States.

 

It is worth recalling that the IHRA definition was first developed by the European Centre for Monitoring Racism and Xenophobia simply as a tool for monitoring antisemitic incidents worldwide; it was never intended to serve as a legal definition. We note that Kenneth Stern, the lead author of the IHRA, has, in testimony before Congress and elsewhere, forcefully opposed legislation or policies that conflate criticism of Israel with antisemitism. He has further argued that the imposition of the IHRA definition is particularly inappropriate in college and university settings where it may threaten free speech rights and academic freedom and undermine the mission of such institutions to foster the free and open exchange of ideas and opinions, however controversial.

 

We note as well that in addition to declaring the IHRA definition of antisemitism the only definition to be used by the federal government, H.R. 6090 explicitly rejects the use of any other definition of antisemitism, because doing so allegedly “impairs enforcement efforts by adding multiple standards and may fail to identify many of the modern manifestations of antisemitism.” We find this assertion absurd and point out that distinguished scholars of antisemitism and others have formulated much more coherent, reasonable and productive ways of defining antisemitism and clearly distinguishing it from criticism of Israel and of Zionism. We call your attention to, for example, the Jerusalem Declaration on Antisemitism and the report developed by the Association for Jewish Studies Task Force on Antisemitism and Academic Freedom, neither of whose definitions threaten freedom of speech and academic freedom as does H.R. 6090, which would codify the defective IHRA definition into federal law.

 

Finally, we note that prominent Jewish members of the House of Representatives strongly opposed H.R. 6090. Among them was Representative Jerrold Nadler, who called the bill “misguided,” “political theatrics that do not do anything concrete to stop antisemitism on campus” and part of Republicans’ “politically motivated crusade against institutions of higher education.” Nadler added that “by effectively codifying [the IHRA definition and its examples] into Title VI, this bill threatens to chill constitutionally protected speech. Speech that is critical of Israel – alone –does not constitute unlawful discrimination.” 

 

We therefore call on you to vigorously oppose H.R. 6090, or any bill similar to it that may be introduced in the Senate, along with any other proposed legislation that is likely to exert a chilling effect on teaching, learning and freedom of expression on campus. We further call on you to publicly and forcefully reiterate your commitment to respect and defend the free speech rights and academic freedom of faculty, students and staff at this country’s colleges and universities, including their right to advocate for any cause they wish without fear of intimidation, harassment or sanction.

 

We look forward to your response.

 

Sincerely,

 

Aslı Ü. Bâli 

MESA President

Professor, Yale Law School

 

Laurie Brand
Chair, Committee on Academic Freedom
Professor Emerita, University of Southern California

 

cc: 

 

Senator Chris Van Hollen (Maryland)

 

Senator Dick Durbin (Illinois) 

 

Senator Elizabeth Warren (Massachusetts)

 

Senator Mazie Hirono (Hawaii) 

 

Senator Ed Markey (Massachusetts) 

 

Senator Tim Kaine (Virginia)

 

Senator Corey Booker (New Jersey)

 

Senator Laphonza Butler (California)

 

Senator Sherrod Brown (Ohio)

 

Senator Ben Ray Luján (New Mexico)