Leaders Take a Stand Against Anti-Zionism

President Emmanuel Macron of France

President Emmanuel Macron of France

Earlier this week, both President Emmanuel Macron of France and Senator Chuck Schumer of New York made bold statements declaring their support of Israel, definitively condemning anti-Zionism as a modern manifestation of anti-Semitism.

President Macron in a ceremony on July 16 addressed growing religious tensions in French, as well as the French government’s complicity the Holocaust. In an unprecedented declaration, President Macron forcefully asserted that anti-Zionism is a “reinvented form of anti-Semitism,” dispelling any equivocation on the subject. As Professor William Jacobson, author of the Legal Insurrection blog and a member of LDB’s Law Student Speakers Bureau, noted, world leaders are beginning to call out anti-Semitism masquerading as anti-Zionism, and Macron’s refusal to “surrender to the message of hate” is incredibly powerful given the wave of anti-Semitic incidents across Europe.

The significance of the date was not lost on the audience: on July 16th-17th, 1942, over 13,000 French Jews were herded into the Vélodrome d’Hiver (or Vel d’Hiv) stadium in Paris. France’s politicians in the past have denied French responsibility for the Vel d’Hiv roundup, placing the blame on the Germans and the collaborative Vichy regime instead. However, Macron aims to draw attention to the French government’s direct role in the roundup, and to take responsibility for France’s wartime actions in order for the country to move forward. In the wake of rising anti-Semitism in France, President Macron’s statements serve as a strong declaration of support to French Jews.

Senator Charles 'Chuck' Schumer of New York

Senator Charles ‘Chuck’ Schumer of New York

The Senate Minority Leader, Senator Schumer of New York, applauded President’s Macron’s statement on anti-Semitism in his speech before the Senate on Monday, July 17. He praised Macron’s description of anti-Zionism as a reinvented form of anti-Semitism due to its denial of the Jews’ right to a homeland, and he cited multiple historical examples of prejudice towards Jews in Europe. A staunch supporter of Israel, Senator Schumer has also repeatedly advocated against the Boycott, Divestment, and Sanctions movement. In a speech before AIPAC earlier this year, he referred to Israel as a “humanitarian leader in the global community.” He further condemned the BDS movement as a “biased campaign” working to delegitimize the Jewish state. Cognizant of the rise of the BDS movement, particularly on college campuses, Senator Schumer forcefully urged politicians to take action against the BDS movement. New York’s Governor, Andrew Cuomo, signed an executive order in June of last year directing state agencies to divest public funds supporting BDS campaigns against Israel. Ohio, North Carolina, and numerous other states have signed similar bills.

The notion that anti-Zionism often manifests as anti-Semitism is not a new one. President of the Louis D. Brandeis Center, Kenneth L. Marcus has written extensively on the subject of modern anti-Semitism. In about 2004, Israeli politician and worldwide human rights leader, Natan Sharansky, outlined the so-called “3-D Test of Anti-Semitism” to distinguish criticism of Israel from outright anti-Semitic behavior. Under the 3-D Test, criticism of Israel crosses the line into anti-Semitism where it 1) Demonizes, 2) Delegitimizes, or 3) applies it to a Double standard. Variations of this test have been adopted by worldwide bodies including the International Holocaust Remembrance Alliance (IHRA) and the U.S. Department of State.

As Senator Schumer summarized, “the idea that all other peoples can seek and defend their right to self-determination, but the Jewish people cannot; that other nations have a right to exist but the Jewish state does not, that too is a modern form of anti-Semitism, just as President Macron of France said this weekend.”

Victory in South Africa: Anti-Israel Activist Guilty of Hate Speech

South African Jewish Board of Deputies

On Thursday, June 29th, the Equality Court sitting in the South Gauteng High Court of South Africa found Bongani Masuku guilty of hate speech following his comments calling for Jewish lives to be made “hell,” among other incendiary remarks. Over twenty-five years since the end of apartheid, South Africa continues the fight to eradicate discrimination, and the landmark ruling has widespread implications for the global fight against anti-Semitism.

In March 2009, Mr. Masuku, the international relations spokesperson for the Congress of South African Trade Unions (COSATU), threatened students in his speech at Wits University in Johannesburg during the “Israel Apartheid Week.” His controversial statements targeted South African families who had members serving in the Israeli Defense Force, and called for Jews in South Africa to be forcibly “removed” from the country. The South African Jewish Board of Deputies (SAJBD) lodged a complaint with the South African Human Rights Commission (SAHRC) in April 2009, which declared that the defendant’s comments qualified as hate speech, and ordered him to apologize.

However, Mr. Masuku refused to comply. The SAHRC subsequently brought the case to the High Court in order to enforce the ruling where a few days ago Judge Moshidi ruled that the 2009 statements constituted hate speech. Judge Moshidi also dismissed arguments by the Defense that the statements were about Zionists and thus not directed at Jews as a whole. In its press release, SAJBD commended the fact that “in terms of judgment, threats and insults against Jews who support Israel cannot be justified on the alleged basis that such attacks are aimed not at Jews but at ‘Zionists.’”

In his ruling, Justice Moshidi declared that the defendant’s statements violated section 10 of the Equality Act 4 of 2000, the comprehensive South African anti-discrimination law prohibiting hate speech. The Act holds the courts and state accountable for hate speech prevention, and ensures agencies abide by the terms of international and constitutional human rights law. Mr. Masuku must now apologize to SAJBD, the overarching organization for the South African Jewish community, within 30 days.

South Africa’s Equality Court has set a strong example that anti-Semitism, just like all forms of hate and bigotry, is unacceptable.

Further Progress Against BDS: Ohio Takes A Stand

The Ohio House of Representatives Logo

On June 6th, the Ohio House of Representatives initiated a resolution condemning the Boycott, Divestment, and Sanctions Movement (BDS) in response to rising incidents of anti-Semitism in the state. The House expects a vote on the measure in late August or early September of this year.

The House Concurrent Resolution 10 calls for increased economic, cultural, and educational ties between Ohio and Israel. Importantly, the resolution also declares that the goals of the BDS movement are anti-Semitic, “the international Boycott, Divestment, and Sanctions movement is one of the main vehicles for legitimizing anti-Semitism on campus and advocating the elimination of the Jewish state”

The resolution follows the passage of the anti-BDS House Bill 476 that was signed into law in December 2016. Howie Beigelman, Executive Director of Ohio Jewish Communities, stated that while the resolution has no legal standing, it provides an important “message of support” to those affected by the BDS movement.

Support for the bill transcends both political and religious divisions, including the evangelical Christian group, Proclaiming Justice to the Nations (PJTN), among its advocates. PJTN focuses on the “biblical responsibility” of Christians to stand with Jews and Israel.

The primary sponsors of the resolution, Republican representatives Dave Greenspan and Andy Thompson, added that the anti-BDS resolution builds upon the success of the anti-BDS law by taking a stronger stand on anti-Semitism in the face of the rising threat to Jewish students on college and university campuses. Unlike HB 476, the resolution addresses the complicity of university administrators in incidents of anti-Semitism, particularly those related to BDS agitation. As Representative Thompson noted, “…when it comes to college administration, sometimes they seem to be as intimidated as the groups that are being targeted here, so….we are just trying to provide some more backbone to those who would do the right thing when it comes to the climate.”

The resolution comes at a pivotal moment for Jewish university students in light of recent anti-Semitic incidents, including Jewish students being harassed and intimidated on campuses, such as at the University of Wisconsin-Madison, and Jewish student groups being disinvited from campus-wide events at San Francisco State University.

UK Advocates Urge Anti-BDS Legislation After High Court Decision

The British government cannot restrict local governments from engaging in boycotts against Israel, a UK High Court Judge ruled last week, prompting British pro-Israel advocates to call for primary anti-BDS legislation.

UK high court

The UK High Court

The judgment, issued by Sir Ross Cranston, a judge of the High Court, Queens Bench Division, followed a case that challenged policy guidance issued by the UK Department for Communities and Local Government last year. The guidance sought to prevent local governments, like city and town councils, from engaging in policies that support “boycotts, divestment and sanctions [‘BDS’] against foreign nations and UK defense industries” with regards to pension funds. The guidance did not mention Israel specifically. Other European nations, including France, have enacted similar policies.

The case was brought by the Palestine Solidarity Campaign (PSC), a UK group that equates Zionism, the belief in a national homeland for the Jewish people, with “racism, occupation and colonization” and has called for the end of Israel as a Jewish state. The PSC claimed that the Department’s provision restricted their freedom to protest against companies “complicit” in Israel’s occupation of the Palestinian territories. The PSC, an active member of the international Boycott, Divestment and Sanctions (BDS) movement against Israel, was supported in their case by other pro-BDS groups, including the Quakers and the Campaign Against Arms Trade.

In response, the Government argued that allowing local governments to take political stances on the Israeli- Palestinian conflict might “undermine community cohesion at home by legitimizing anti-Semitic or racist attitudes and attacks” in addition to sending mixed messages about British national policy. In it’s argument, the Government noted that, although the such pro-BDS legislation could provoke anti-Semitism in local communities, the anti-Israel and pro-Palestinian movements are not inherently anti-Semitic.

Judge Ross Cranston

Sir Ross Cranston

In his decision, Sir Ross Cranston noted that the political merits of the arguments of the PSC or the government have nothing to do with his judgment and that the decision came from “legal analysis, not political argument.” The Judge explained that Sajid Javid, the Secretary of State for the Department for Communities and Local Government, acted beyond his authority in issuing the guidance. The Judge noted that since the guidance was issued to protect “UK foreign policy or UK defense policy”, Secretary Javid was acting beyond the scope of his authority because the provision was issued for purposes that extended beyond pension and investment regulation.

Despite Cranston’s statement that the political merits of the PSC’s argument had no bearing on the decision, British anti-Israel activists rejoiced at the judgment, with the PSC calling the case “a victory for Palestine, local democracy and for the rule of law.” On the other hand, British pro-Israel leaders are calling for primary legislation to combat BDS in local government. Although prospective, parliamentary legislation would likely ban local councils and other forms of municipal governments from engaging in boycotts based on national origin. Such legislation would promote a broad array of British interests, including community cohesion, reduction of anti-Semitic incidents and the maintenance of a clear and coherent British foreign policy towards Israel and the Middle East. Last year, the British government adopted the International Holocaust Remembrance Alliance’s expansive definition of antisemitism that explicitly states that criticisms of Israel that portray the Jewish state as a “Jewish collectivity” are anti-Semitic.

The Department’s now-defunct guidance had stirred controversy among anti-Israel activists and local government officials across the UK since it was first introduced in 2015. Local government officials had called the guidance “political interference on a huge scale.” Jeremy Corbyn, UK Labour Party Leader and former candidate for Prime Minister, called the guidance “unethical and an attack on local democracy.”  Supporters of the guidance welcomed the provision, calling the behavior the guidance sought to prevent “bad for the local taxpayer and deeply damaging to community relations”, in addition to encouraging anti-Semitism. Over recent years, Corbyn and the UK Labour party supporters have been repeatedly accused of anti-Semitism, particularly after a high-profile Corbyn supporter questioned the need for increased security at Jewish schools and made disparaging comments about Holocaust Memorial Day.

anti-Israel rally 2

Anti-Israel Rally in London, 2014

Furthermore, the BDS movement has gained significant popularity among the British public. The PSC reported that its own polling indicates that 43% of the British public think the BDS movement is a “reasonable” solution to the Israeli Palestinian conflict. This surge in BDS support has reached UK college and university campuses, with the University of Manchester Student Union Senate, the largest student union in the UK, officially endorsing BDS in 2016.

This is coupled with an alarming rise in anti-Semitic incidents in the UK. In February, the Community Security Trust, a British organization that monitors anti-Semitism, reported that anti-Semitic hate incidents had increased by over 36% in 2016, including over 100 incidents of physical attacks. This rise in anti-Semitism has been particularly felt on UK campuses, with over 25% of Jewish students in the UK reported in April that they are worried that they will be the target of anti-Semitic abuse by their peers.

American pro-Israel activists say that last week’s UK judgment is unlikely to have any effect on American anti-BDS legislation. Nearly half of all U.S. states have passed anti-BDS legislation that prohibits state governments from doing business with companies and organizations supporting or engaging in the BDS movement. The U.S. Congress is also currently considering federal anti-BDS legislation.

House Task Force Praises European Parliament Action

capitol

United States Capitol Building

Washington, D.C., June 27th: Today, the U.S. Congress’ Bipartisan Taskforce for Combating Anti-Semitism issued an important letter in support of the European Parliament for its adoption, earlier this month, of the International Holocaust Remembrance Alliance’s (IHRA) definition of anti-Semitism. While applauding the Parliament’s efforts, the Taskforce notes that “more work remains to be done,” and urges all EU-member parliaments to formally adopt the definition – a step that the United States has not yet fully taken, although the U.S. is an IHRA member.

The Louis D. Brandeis Center for Human Right Under Law (LDB) in a press release issued this afternoon commends the Bipartisan Taskforce for Combating Anti-Semitism for its support of the European Parliament’s actions, which mirrors the center’s own statement earlier this month. The Taskforce letter, addressed to Hon. Juan Fernando Lopez Aguilar, Chair of the European Parliament Working Group on Antisemitism, notes the resurgence of anti-Semitic incidents in the United States and Europe, and encourages further action in adopting the IHRA’s working definition of anti-Semitism.

“The Taskforce letter is an important signal for three reasons,” stated Louis D. Brandeis Center President Kenneth L. Marcus. “First, the Taskforce demonstrates that the campaign against anti-Semitism surmounts partisan rancor and garners support from both sides of the congressional aisle. Note that leading congressmen of both parties are underscoring the importance of adopting a definition of anti-Semitism substantially similar to the U.S. State Department’s.” That same bipartisan support was seen in December, when the U.S. Senate unanimously passed Senators Tim Scott and Bob Case’s important Anti-Semitism Awareness Act, which provides Jewish students protection under Title VI of the Civil Rights act and urges the Department of Education to use the State Department’s definition of anti-Semitism.

“Second,” Marcus continued, “the Taskforce letter demonstrates that the United States Congress, as well as the executive branch of our government, will continue to assert strong leadership in the fight against global anti-Semitism.” The timing is significant, in light of recent reports regarding staff departures at the U.S. State Department’s Office to Monitor and Combat Global Anti-Semitism. This Taskforce letter reassures human rights advocates throughout the world that the United States remains committed to the fight against anti-Semitism and other forms of bigotry.

“Third,” Marcus added, “the statement illustrates both strong momentum in the ongoing global efforts to fight anti-Semitism, as well as the substantial amount that remains to be done. The IHRA’s definition closely resembles the State Department’s definition of anti-Semitism, but the department does not have jurisdiction on incidents of anti-Semitism, and U.S. domestic agencies, other than the U.S. Commission on Civil Rights, have not adopted the definition for domestic purposes, which is why legislative efforts like Senators Scott and Casey’s work is so important.

Ongoing efforts continue to implement a national definition of anti-Semitism in light of the growing anti-Semitic incidents on college campuses. Efforts to do so are underway in South CarolinaVirginia, and Tennessee.

Launched in March of 2015, the Taskforce is chaired by eight members of congress, both Democrats and Republicans, who keep their congressional colleagues apprised of anti-Semitic incidents. Members include representatives Nita Lowey (D-NY), Chris Smith (R-NJ), Eliot Engel (D-NY), Ileana Ros-Lehtinen (R-FL), Ted Deutch (D-FL), Kay Granger (R-TX), Marc Veasey (D-TX), and Peter Roskam (R-IL). Today’s letter is bears the signature of 32 Members of Congress: the eight co-chairs as well as Task Force members. Task force members include representative. Grace Meng (D-NY), Jacky Rosen (D-NV), Steve Cohen (D-TN), Debbie Wasserman Schultz (D-FL), Gregory Meeks (D-NY), Lois Frankel (D-FL), Jerrold Nadler (D-NY), Mike Quigley (D-IL), Al Green (D-TX), Albio Sires (D-NJ), Adam Schiff (D-CA), Brad Schneider (D-IL), Ted Lieu (D-CA), Grace Napolitano (D-CA), Brad Sherman (D-CA), Donald Norcross (D-NJ), Gus Bilirakis (R-FL), Jamie Raskin (D-MD), Pete King (R-NY), Josh Gottheimer (D-NJ), Kathleen Rice (D-NY), Alan Lowenthal (D-CA), Brenda Boyle (D-PA), and Jan Schakowsky (D-IL).

The European Parliament adopted the IHRA definition of anti-Semitism on June 1, 2017. Austria, Romania, and the United Kingdom have already done so, but most European Union members have not yet followed suit. As the letter notes, “This resolution…..sends a bold statement to those who foment hatred against Jews: European leaders are aware of the growing trends of anti-Semitism and refuse to tolerate it.”

Please see below for the full text of the Taskforce letter:

Dear Mr. Chairman,

As members of the Bipartisan Taskforce for Combating Anti-Semitism in the U.S. House of Representatives, we applaud the European Parliament’s passage of a working definition of anti-Semitism. We wish to congratulate you and your colleagues of the European Parliament Working Group on Antisemitism for your hard work in building support for this important resolution.

The frequency and scale of anti-Semitic incidents in both the United States and Europe over the past few years has been deeply alarming. From large-scale attacks, such as the 2012 assault on a Jewish school in Toulouse, to smaller but all too common incidents of harassment and vandalism, European Jewish communities often fear for their safety and deserve a strong message of support from their governments. This resolution, which includes a working definition of anti-Semitism adopted from the International Holocaust Remembrance Alliance, encourages European Union (EU) Member States to monitor and prevent anti-Semitic violence and prosecute the perpetrators. It also sends a bold statement to those who foment hatred against Jews: European leaders are aware of the growing trends of anti-Semitism and refuse to tolerate it.

The resolution represents an important step in combating anti-Semitism, but more work remains to be done. Of all the states participating in the International Holocaust Remembrance Alliance, only Austria, Romania, and the United Kingdom have formally adopted the definition. Following the recent passage of the working definition of anti-Semitism, we strongly encourage all EU-member national parliaments to formally adopt the definition and commit to greater action against anti-Semitism. Anti-Semites must understand that there is no place for anti-Jewish bigotry, and European Jewish communities must be reassured that their governments will do all they can to keep them safe.

Last month, the U.S. House of Representatives unanimously passed the Combating European Anti-Semitism Act (H.R. 672), which would encourage greater coordination and partnerships between the United States and European countries to address anti-Semitism. This and other important initiatives for combating anti-Semitism, including efforts to integrate a working definition of anti-Semitism into various aspects of U.S. policy and practice, are top priorities for many members of Congress. We must continue to build on the momentum created by this bill’s passage and the passage of the working definition. We look forward to working closely with the EU and individual member states in achieving the shared goal of protecting Jewish communities and combating anti-Semitism.

Sincerely,

This letter is signed by Task Force Co-Chairs Representatives: Nita Lowey (D-NY), Chris Smith (R-NJ), Eliot Engel (D-NY), Ileana Ros-Lehtinen (R-FL), Ted Deutch (D-FL), Kay Granger (R-TX), Marc Veasey (D-TX), and Peter Roskam (R-IL), as well as Task force members Reps. Grace Meng (D-NY), Jacky Rosen (D-NV), Steve Cohen (D-TN), Debbie Wasserman Schultz (D-FL), Gregory Meeks (D-NY), Lois Frankel (D-FL), Jerrold Nadler (D-NY), Mike Quigley (D-IL), Al Green (D-TX), Albio Sires (D-NJ), Adam Schiff (D-CA), Brad Schneider (D-IL), Ted Lieu (D-CA), Grace Napolitano (D-CA), Brad Sherman (D-CA), Donald Norcross (D-NJ), Gus Bilirakis (R-FL), Jamie Raskin (D-MD), Pete King (R-NY), Josh Gottheimer (D-NJ), Kathleen Rice (D-NY), Alan Lowenthal (D-CA), Brenda Boyle (D-PA), and Jan Schakowsky (D-IL).

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About The Louis D. Brandeis Center: The Louis D. Brandeis Center, Inc., or LDB, is an independent, nonprofit organization established to advance the civil and human rights of the Jewish people and promote justice for all. The Brandeis Center conducts research, education, and advocacy to combat the resurgence of anti-Semitism on college and university campuses. It is not affiliated with the Massachusetts university, the Kentucky law school, or any of the other institutions that share the name and honor the memory of the late U.S. Supreme Court justice.

North Carolina General Assembly Passes Anti-BDS Bill

NC State Capitol BuildingIn late June, legislators from North Carolina’s General Assembly passed House Bill 161, an anti-BDS bill which would seek to punish companies engaged with state business who actively participate in boycott campaigns against the State of Israel. The bill will now be sent to Governor Roy Cooper for his signature. Carin Savel, CEO of the Jewish Federation of Raleigh-Cary, stated that the bill “makes it clear that the State of North Carolina stands with Israel, which has long been an important trading partner of North Carolina.” The bill enjoyed bipartisan support, having been sponsored by both Democratic and Republican senators and representatives.

ABC affiliate Channel 11 in Raleigh, North Carolina, recently wrote in its report on BDS that “supporters of BDS, including activist Linda Sarsour, insist [that BDS] is a non-violent protest against Israel for occupying and colonizing Palestinian land.” Regardless of this insistence, the text of House Bill 161 states that it is the public policy of both North Carolina and the United States as a whole to oppose boycotts as a matter of national trade policy, as “cooperation with Israel materially benefits United States companies and improves American competitiveness…therefore, a company’s decision to discriminate against Israel…is an unsound business practice.”

If signed into law by Governor Cooper, this will be the 22nd anti-BDS law adopted by a U.S. State. Recently, both Kansas and Nevada passed their own anti-BDS legislation. The number of states that have passed anti-BDS legislation is rapidly approaching the halfway mark. States with large and active BDS campaigns, particularly on their college campuses, are facing active pressures against this new form of anti-Semitism. Universities and academic associations, such as the American Studies Association, have been put on the defensive through litigation and legal advocacy against BDS. BDS, along with the anti-Semitism and anti-Israelism it spreads, is being combatted on many stages in the United States. Soon, there will be no home for the anti-intellectual, anti-factual, hate-filled BDS movement in America.

LDB Urges Further Action from UW Madison

Today, the Brandeis Center wrote to University of Wisconsin – Madison (“UW”) Chancellor Rebecca Blank, applauding her administration for castigating the Associated Students of Madison’s controversial April 26, 2017 Student Council (“ASM”) divestment measure, and urging further action from her administration.

UW Madison Chancellor Rebecca Blank

UW Madison Chancellor Rebecca Blank

This past semester, the ASM introduced various versions of BDS resolutions, violating the ASM Constitution & Bylaws in the process and discriminating against and harassing Jewish students and their allies. Though the UW administration castigated the ASM’s April 26 BDS resolution, more must be done to correct the campus environment and discipline certain students. LDB urged action, including:

  • Addressing the statement from former ASM Chair that “All white people are racist.” Such negative racial stereotypes are unacceptable, and is especially damaging to the campus environment when conveyed by a person with official stature, even within the student body. As explained in LDB’s Best Practice Guide, it is necessary for university leaders to exercise moral leadership by expressing their views of difficult subjects.
  • Taking responsive actions consistent with UW nondiscrimination policies and Wisconsin Statute.
  • Requiring orientation and training for all ASM Members on the nature of and different manifestations of anti-Semitism, and the appropriate means of addressing it. Additionally, requiring orientation and training for all new students on the nature of and different manifestations of anti-Semitism, and the appropriate means of addressing it.
  • Updating the “UW Student Handbook, Policies on Accommodating Students’ Religious Beliefs” to include that the ASM Student Council should be accommodating to students’ religious beliefs.
  • Creating more academic and extracurricular programming to raise community awareness about global and campus anti-Semitism, making use of valuable UW resources, such as the UW Hillel and the UW Mosse/Weinstein Center for Jewish Studies.
  • Adopting a uniform definition of anti-Semitism, such as the definition used by the S. State Department or the recently adopted University of California Regents’ Statement of Principles Against Intolerance, in order to avoid and properly identify anti-Semitism should it arise in the future.

The redacted text of LDB’s letter can be found below:

—-
June 21, 2017

VIA EMAIL

Chancellor Rebecca M. Blank
University of Wisconsin – Madison
161 Bascom Hall
500 Lincoln Drive
Madison, WI 53796

Dear Chancellor Blank,

We write on behalf of the Louis D. Brandeis Center for Human Rights Under Law, at the request of our friends at the University of Wisconsin Hillel, to applaud your administration for castigating the Associated Students of Madison’s controversial April 26, 2017 Student Council (“ASM”) divestment measure (hereinafter “Divestment Measure”) and to urge further action from your administration. The Louis D. Brandeis Center is a national public interest advocacy organization dedicated to the civil and human rights of the Jewish people and justice for all.

We appreciate your April 26, 2017 online statement that the Divestment Measure does not control the policies or practices of the University of Wisconsin – Madison (“UW”) or the UW Foundation (“WFAA”) and will not change your approach. You exercised commendable leadership by clarifying your opposition to the anti-Semitic movement to boycott, divest from, and sanction Israel (“BDS”). We further applaud the ASM Student Judiciary for voiding a discriminatory bylaw change at the April 12 ASM meeting, which took place on the Jewish holiday of Passover. The Student Judiciary properly voided the bylaw change; suggested that the former ASM Chair attend tolerance training and apologize for her discriminatory actions; and mandated the incoming ASM Chair to send a letter to the Student Council explaining why her motion to waive the rules was wrong, why the nondiscrimination clause of the ASM constitution is essential, and why Passover is important to the Jewish community.

We urge you to build on this good start, keeping in mind your important observation that Jewish students felt targeted by the ASM’s actions. You say that “UW-Madison values and welcomes members of all faiths and identities,” and we take you at your word. We ask that you demonstrate this with further actions to correct the hostile campus environment created for Jewish students on campus, and prevent such discrimination and harassment from recurring.

The comments made during and in the wake of the ASM meetings demonstrate a lack of understanding and respect for Jewish students and the Jewish religion. Some statements demonstrated gross insensitivity, at best, as well as negative ethnic and racial stereotypes. They include, for example, sweeping offensive generalizations. Jewish students present at the various ASM meetings, and students who attempted to speak up on behalf of Jewish students, felt targeted and harassed. Some of the discriminatory statements and actions that occurred include the following: Continue reading

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Jewish Students Sue San Francisco State University

On June 19, 2017, The Lawfare Project and Winston & Strawn LLP filed a lawsuit on behalf of six students and several members of the Bay Area Jewish community against San Francisco State University (“SFSU”). The complaint alleges that the university has fostered a climate of anti-Semitism on campus, violating the plaintiffs’ constitutional rights to free speech and equal protection, as well as their rights under Title VI of the Civil Rights Act of 1964. President Leslie Wong, the California State University Board of Trustees, and other top administrative officials were named as defendants.

SFSU Anti-Semitism

SFSU Anti-Semitism

The lawsuit was prompted by alleged complicity of university administrators and police officers in the disruption of an April 2016 event, when San Francisco Hillel invited the Mayor of Jerusalem, Nir Barkat, to speak on campus. At the event, audience members were allegedly “subjected to genocidal and offensive chants and expletives by a raging mob that used bullhorns to intimidate and drown out the Mayor’s speech and physically threaten and intimidate members of the mostly-Jewish audience.”

Protesters yelled and chanted “Intifada,” [Arabic for “uprising,” the term “Intifada” has come to mean a call for violence against innocent Israeli civilians. The First and Second Intifadas in Israel resulted in 170 bombings perpetrated by Palestinian terrorists against Israeli civilians between 1989-2008], “Get the [expletive] off our campus,” and “From the river to the sea, Palestine will be free,” [the destruction of Israel entirely] while university administrators allowed the disruption to continue and instructed campus police to “stand down.”

The plaintiffs also allege that Hillel was unfairly excluded from a campus “Know Your Rights” fair aimed at members of vulnerable populations on Feb. 18, 2017.

The complaint contends that the way administrators handled the April confrontation and the most recent exclusion is consistent with other incidents on SFSU’s campus over the years. According to the complaint, “SFSU and its administrators have knowingly fostered this discrimination… SFSU has not merely fostered and embraced anti-Jewish hostility — it has systematically supported … student groups as they have doggedly organized their efforts to target, threaten, and intimidate Jewish students on campus and deprive them of their civil rights and their ability to feel safe and secure as they pursue their education.” Readers may recall how a SFSU professor of ethnic studies, Rabab Abdulhadi, used university tax-payer funds to finance a student trip to the Palestinian territories, where they were met by Leila Khaled, a Palestinian heralded as the first woman to have hijacked an airplane in an act of terror in 1969; or former student Mohammad Hammad, who infamously posted a picture of himself holding a blade on social media, saying: “I seriously cannot get over how much I love this blade. It is the sharpest thing I own and cuts through everything like butter, and just holding it makes me want to stab an Israeli soldier.”

Further, the complaint notes that “no actions were ever taken by SFSU against the disruptive students, no disciplinary charges were ever filed, and no sanctions were ever imposed against the groups or students responsible for committing these acknowledged violations.”

Lawyers for the students hope the case will set a precedent under Title VI, which protects Jewish students from being targeted for their ethnic or ancestral identity. “Title VI of the Civil Rights Act of 1964 is the underpinning of the modern American ethos of equal protection and anti-discrimination. This case isn’t about Jews, it’s about equal protection under the law,” Brooke Goldstein, director of The Lawfare Project, said in a written statement. “If the courts fail to apply Title VI in this context, we are creating a massive loophole that will ultimately be exploited at some point to target other marginalized minority communities. If we refuse to enforce anti-discrimination law for Jews, if we say Jews don’t deserve equal protection, it will erode constitutional protections for everyone.”

SCOTUS Decision Could Impact Freedom of Speech Debate on Campus

On June 19, the Supreme Court decided in Matal v. Tam that the government cannot refuse to trademark potentially derogatory or offensive names, a decision that will likely impact the national debate about hate speech and the First Amendment for decades. This ruling means that though hate speech remains constitutionally protected as a general matter, harassing conduct remains subject to civil rights laws.

The Supreme Court of the United States

The Supreme Court of the United States

The case arose when a rock band known as “The Slants” attempted to trademark their band name with the U.S. Patent and Trademark Office (PTO). The band’s request was denied because the trademark would be in violation of the Lanham Act, a federal statute that includes a “disparagement clause” that precludes the PTO from trademarking names that may “disparage” individuals or groups. The term “slant” is considered an ethnic slur directed towards the Asian community.

The Court unanimously agreed that the “disparagement clause” violates the First Amendment, but was split as to how. The Court unanimously agreed that the trademarks are not government speech but are inherently private speech because they are the mental creation of a private party. Previously, the Court had determined that government speech was not subject to the First Amendment, and in this decision, Justice Alito warned against the danger of applying the government-speech doctrine too liberally.

Supreme Court Justice Samuel Alito delivered the opinion of the Court.

Supreme Court Justice Samuel Alito delivered the opinion of the Court.

Then, Justice Alito was joined by Chief Justice Roberts and Justices Thomas and Breyer in refuting the government’s claims that trademarks were government-subsidized speech, which is not subject to the First Amendment. The Court reasoned that because the filer of a trademark was the party paying a trademark fee, instead of vice versa, this argument was invalid. Then, Justice Alito rejected the government’s argument that a trademark is commercial speech, which is subject to less First Amendment protection. Alito worte that even if it were commercial speech, the denial of a trademark application would not pass the test used to evaluate restrictions on such commercial speech.

In a separate opinion, Justice Kennedy was joined by Justices Ginsberg, Kagan and Sotomayor in determining that the “disparagement clause” was solely unconstitutional because it is an example of the government using its own judgment to discriminate against certain trademark requests, while allowing for others it finds more appropriate, constituting what the Court deems “viewpoint discrimination.” Justice Kennedy concludes by stating that “viewpoint discrimination” inherently violates the First Amendment and its purpose to create a “free and open discussion in a democratic society.”

The Court’s decision builds upon a trend taken by the Supreme Court in recent years to rule in favor of free speech protections, perhaps most notably in 2011, when the Court in Snyder v. Phelps protected the Constitutional right of protesters to use homophobic and otherwise offensive language outside of a military funeral.

Many free speech advocates are calling the Matal ruling a victory for the First Amendment, with the Court further defining free speech jurisprudence that will check government interference with even limited restrictions on free speech. In particular, the Matal decision is being celebrated by the Washington Redskins, the professional NFL team that has been engaged in legal battles since 2014, when PTO refused to renew the team’s trademark over the term “Redskins”, which is perceived to be an offensive slur for Native Americans. Others fear the Matal decision, asserting that it could provide new grounds for hate groups and others looking to trademark names and other materials that could incite hatred or worse for minority groups.

The Court has long upheld that hate speech that rises to the level of harassment- at least in cases of race or gender-based harassment- violates Title VII of the Civil Rights Act. This is unlikely to change going forward, but the Matal decision could further blur the line between what constitutes
Constitutionally protected hate speech and what is speech that is harassing and/or likely to incite public disorder.

The debate around hate speech and the First Amendment is especially pertinent on college campuses, where in recent years administrators, advocacy groups and other stakeholders have argued over what are the appropriate legal steps to take when students are subjected to hateful language by other students. More than half of all American college and university campuses, including many public institutions, have enacted speech codes which seek to limit when and where students can express themselves on campus. This has coupled with a rise in the occurrence of hate-based incidents on campus, including acts of anti-Semitism.

Student protesters at UC Irvine assemble an "apartheid wall" on campus

Student protesters at UC Irvine assemble an “apartheid wall” on campus

In recent years, numerous speeches and lectures organized by pro-Israel students and faculty on college and university campuses have been silenced by protestors. Notable incidents include Jerusalem Mayor Nir Barkat being shouted down by student protestors at San Francisco State University, the physical provocation of an Israeli professor by a student protestor during a private event at the University of Texas at Austin, and most recently last month, the sabotage by student protestors of an event at University of California-Irvine featuring Israeli veteran soldiers with loud chanting, profanity and accusations of genocide. Various state and municipal statutes and university codes of conduct prohibit the disruption of lawful meetings, affirming that the right to freedom of speech does not include the right to deprive others of their First Amendment rights. The Louis D. Brandeis Center for Human Rights Under Law has worked to protect the rights of Jewish and pro-Israel campus communities to safely and peacefully express themselves.

Kansas Governor Signs Anti-BDS Bill into Law

Kansas Governor Sam Brownback

On Friday, June 16, Kansas Gov. Sam Brownback signed an anti-BDS bill barring state agencies from entering into contracts with individuals or companies that boycott Israel. The bill, HB 2409, first passed the Kansas Senate on Wednesday, June 7 in a 39 to 3 vote before passing the state’s House hours later by a vote of 99 to 13. In signing the bill, Kansas follows in the footsteps of many other states, including Texas and Nevada which have both passed similar anti-BDS legislation within the past month.

Although supporters of the Boycott, Divestment, and Sanctions movement claim that the primary motive of the movement is “merely to pressure Israel towards a two-state solution,” in actuality, the BDS campaign delegitimizes the existence of a Jewish state by calling for its destruction. According to the State Department’s definition of anti-Semitism, “denying the Jewish people their right to self-determination, and denying Israel the right to exist” are examples of anti-Semitic behavior.

The bill follows calls from the Kansas Department of Commerce in March to maintain trade relations with the country. According to the department, in 2016 Kansas exported $56,681,800 in total commodities to Israel and imported $83,650,853 from the country. The Department stated in its report to the House General Government Budget Committee that “any company openly boycotting Israel and its products, is openly boycotting a Kansas trade partner and ally.” The bill then defines ‘boycott’ as “engaging in a refusal to deal, terminating business activities or performing other actions that are intended to limit commercial relations with persons or entities doing business in Israel…”

Gov. Brownback, elected in 2011, has shown longstanding support for the state of Israel. As senator from 1996-2011, Mr. Brownback worked to raise awareness of anti-Semitism, writing in the Jewish Press that he stands with Israel, “We are with you as your friends as a wave of anti-Israel and anti-Semitic rhetoric is once again on the rise.” The current bill serves as a testament to his work to promote tolerance in his home state.