Reprinted with permission from the September 4, 2024 issue of New York Law Journal. © [2024] ALM Further duplication without permission is prohibited. All rights reserved.

Authored by Brandeis Center Director of Corporate Initiatives and Senior Counsel Rory Lancman.

Courts are beginning to render decisions in the wave of cases filed following universities’ widespread failure to protect Jewish students from discrimination after the October 7, 2023, terrorist attacks in Israel unleashed a torrent of Jew-hatred on college campuses.

The early verdict is encouraging: courts aren’t buying into the widely-abused canard that these protests are merely anti-Zionist, not anti-Semitic—a mostly nonsensical construct that might help anti-Semites sleep better at night but which can rarely withstand rational, let alone legal, scrutiny.

While not the final legal word on the subject, three recent federal district court decisions to one degree or another accept the proposition that for the Jewish plaintiffs in question Zionism is an integral component of Jewish identity. This notion is just obvious to most American Jews, who have a deep religious and ethnic connection to the modern state of Israel. As the Pew Research Center found in its study, “Jewish Americans in 2020,” 80% of American Jews say caring about the state of Israel is an essential or important part of what being Jewish means to them; nearly 60% say they personally feel an emotional attachment to Israel and follow news about Israel at least somewhat closely; and nearly half of American Jewish adults have visited Israel. But it is important that our legal system recognize this essential aspect of Jewish identity.

My colleague at the Brandeis Center for Human Right Under Law, Alyza Lewin, in Zionism – The Integral Component Of Jewish Identity That Jews Are Historically Pressured To Shed, Israel Affairs, 26(3), 330–347 (2020), has explained the connection between Jewish identity and Zionism as follows:

“This determination to return to Zion is the glue that has kept Jews connected for millennia. For centuries Jews have not only prayed facing Jerusalem, they have prayed to return to Jerusalem. ‘L’Shana Haba’ah B’Yerushalayim’ ‘Next Year in Jerusalem’ is heard each year at the Passover Seder and again at the conclusion of Yom Kippur. Jewish prayer contains a daily explicit appeal for the rebuilding of Jerusalem, and for God to ‘bring us back in peace from the four quarters of the earth and lead us upright to our land.’ At a Jewish wedding ceremony, it is customary to break a glass in memory of Jerusalem and swear not to ‘forget thee O Jerusalem . . .’ Even in times of great joy, the Jews recall the destruction of Jerusalem and express the desire to return and rebuild Jerusalem.

Judaism and the Land of Israel are completely intertwined. Over half of the 613 commandments in the Pentateuch are connected to the Land of Israel and can only be fulfilled in the Land of Israel. These commandments relate not only to agriculture in Israel but also to the life of the Nation of Israel in the land. They pertain to topics as varied as the Jewish court system (the Sanhedrin), Jewish kings, the laws of war, and activities in the Jewish Temple. Similarly, over 70 percent of the Talmud relates to Jewish laws that are connected to the Land of Israel. Judaism as described in the Pentateuch and the Talmud assumes Jewish self-determination and envisions a Jewish nation state, complete with a Jewish government, army, court system, welfare and tax structure.

Zionism is as integral a part of Jewish identity as observing the Jewish Sabbath or adhering to kosher dietary rules.”

Thus in mid-August a federal judge in the Central District of California issued a preliminary injunction in Frankel v. Regents of Univ. of California, 2024 WL 3811250 (C.D. Cal. Aug. 13, 2024), prohibiting UCLA from discriminating against its Jewish students whose Zionism is a part of their Jewish religious identity. (Technically, the injunction is applied against the specifically identified defendants who are Regents of the University of California and were sued in their official capacity, following Ex parte Young, 209 U.S. 123 (1908).)

Specifically in Frankel, three Jewish students claimed that the organizers of the anti-Israel encampment on UCLA’s quad established a system of physically blocking Zionist students from entering or crossing the quad to get to class in an adjacent building or access the school library. They did this by erecting wood and metal barriers around the encampment and interrogating the Zionist beliefs of those seeking to cross through it. Those deemed sufficiently anti-Zionist were issued wristbands allowing them to pass through the encampment; those failing the test were blocked from traversing the quad.

The three Jewish students asserted numerous claims, including that their Zionism is a religious obligation (as the court put it, “Plaintiffs here assert that supporting the Jewish state of Israel is their sincerely held religious belief”) for which UCLA could not treat them unequally compared to other students, i.e., UCLA cannot allow Jewish students on account of their Zionism to be denied access to classes, programs, and services that are accessible and available to other students, without violating the “free exercise” clause of the First Amendment.

Each of the students explained in their complaint and in their separate declarations in support of their preliminary injunction request how their religious belief compels—is inseparable from—their Zionism. They describe their participation in core Jewish religious practices, including, for example, observing the sabbath, celebrating Jewish holidays, and attending synagogue services. And they describe their connection to Israel, including the role of Israel in so much of Jewish ritual observance, and their visits to Israel. One plaintiff stated in his declaration, “For me, Judaism is synonymous with supporting Israel. To be a faithful Jew means to support the right of Israel to exist.” Another said, “I consider support for Israel to be both a religious obligation and part of my ethnic cultural identity. Therefore, I cannot in good conscience forswear Israel and its right to exist.”

UCLA was smart enough not to challenge the students on the religious roots of their Zionism, that is, to argue that the anti-Zionism displayed and practiced on its quad is separable from anti-Semitism.

However, in an amicus brief opposing the preliminary injunction, the organization Faculty for Justice in Palestine (“FJP”) jumped headlong into the fray waving the banner against recognizing the encampment’s anti-Zionism for the anti-Semitism that it was. Its principal argument was that some of the encampments most strident participants were Jewish themselves, and thus how can a campaign that includes some Jews be anti-Semitic when it excludes other Jews?

The answer was as obvious to the court as it is to the vast majority of Jews for whom a deep an inextricable connection to Jewish self-determination in the land of Israel is embedded in their Jewish identity: just because some Jews renounce an independent Jewish state doesn’t make it legal to abuse those Jews who refuse to, any more than it would make it ok to discriminate against Jews who keep kosher or observe the sabbath or fast on Yom Kippur based on the fact that some Jews don’t. Simply put, the sliver of world Jewry which is anti-Zionist for their own obscure religious or political reasons—who oppose not merely the policies of this or that Israeli government, but the very idea of a Jewish state in the historic Jewish homeland—cannot delegitimize the contrary belief of all the rest of the world’s Jews and thus deny those Jews the equal protection of the law.

Or as the court’s opening paragraph in its preliminary injunction decision resolved the question in now legendary fashion:

“In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion.”

With that, the court ordered UCLA to not offer classes, programs, and services to any students that are not equally accessible to Jewish Zionist students.

The truth is, Zionism’s centrality to Jewish identity isn’t merely “religious,” as examined in the UCLA case, but is a pillar of Jewish peoplehood that anti-discrimination laws protect on the basis of a shared Jewish ancestry or ethnicity (or on a particular statute’s expansive definition of “race”).

The week previous to the court’s decision in the UCLA case, another federal judge sitting across the country in Massachusetts decided that Harvard University, too, could be held liable for violating the main federal anti-discrimination law protecting students against anti-Semitism, Title VI of the Civil Rights Act of 1964, and for violating its implied covenant of good faith and fair dealing in enforcing its own rules, based on the “severe, pervasive, and objectively offensive harassment” described by Jewish students in the complaint which was rooted almost entirely in attacks on these Jewish students’ Zionism, which Harvard failed to properly address. Kestenbaum v. President & Fellows of Harvard Coll., 2024 WL 3658793, at *5 (D. Mass. Aug. 6, 2024).

The court cited from the complaint some individual components of the cumulatively hostile environment based in anti-Zionism that included student groups the day after the October 7th attack declaring “the Israeli regime entirely responsible for all unfolding violence”; the harassment and physical assault of Jewish students at a “die-in” protest which resulted in two anti-Israel protestors being prosecuted in Massachusetts state court with assault and battery and civil rights act charges; campus anti-Israel protestors regularly chanting and intimidating Jewish students with slogans such as “from the river to the sea,” “free Palestine,” “globalize the intifada,” “long live the Intifada,” and (in Arabic) “water to water, Palestine will be Arab”; a plan announced by a Harvard Law School professor to focus a final exam in torts on the war in Israel; and the vandalizing of posters identifying and calling for the release of Israeli hostages held by Hamas.

While the complaint, and the court, did cite examples of classic non-Zionist related anti-Semitism (a reference to a Jewish student’s nose being “crooked” among other anti-Semitic messages on the Harvard “Sidechat” app), most of the blatantly anti-Semitic conduct cited occurred in the framework of anti-Zionist themed attacks on Jewish students.

Unlike in the UCLA case, the Jewish students in the Harvard case chose not to frame their non-negotiable commitment to Zionism in strictly religious terms, and the Harvard Court didn’t do so for them. Indeed, the complaint relied heavily on decades of Department of Education policy and a presidential executive order that brings Jewish students under the protection of Title VI by virtue of their shared ancestry (their ethnicity), since “religion” is not a protected category under Title VI. See e.g., Deputy Assistant Secretary of Education for Enforcement Kenneth L. Marcus, “Dear Colleague Letter” (Sep. 13, 2004); Assistant Secretary for Civil Rights Catherine E. Lhamon, “Dear Colleague Letter“ (Aug. 24, 2023); Assistant Attorney General Thomas E Perez, “Letter to Russlynn H. Ali” (Sep. 8, 2010); U.S. Department of Education Office for Civil Rights, Questions and Answers on Executive Order 13899 (Combating Anti-Semitism) and OCR’s Enforcement of Title VI of the Civil Rights Act of 1964; Assistant Secretary of Education for Civil Rights Catherine E. Lhamon, “Dear Colleague Letter” (Nov. 7, 2023); Exec. Order No. 13899, 2019.

The Harvard decision is consistent with one issued by the same court in favor of the Massachusetts Institute of Technology (“MIT”) just a few weeks earlier in StandWithUs Ctr. for Legal Just. v. Massachusetts Inst. of Tech., 2024 WL 3596916 (D. Mass. July 30, 2024), where Jewish students described essentially similar anti-Semitic conduct rooted in anti-Zionism, but where the court concluded that the complaint’s allegations against MIT, unlike those made against Harvard, failed to demonstrate MIT’s deliberate indifference to addressing the unlawful anti-Semitic hostile environment on campus, as Title VI claims require.

But make no mistake: the court didn’t dismiss the Jewish students’ anti-Semitism claims over any quibbling about the anti-Semitic nature of the anti-Zionist conduct described in the complaint:

“The court adds some concluding thoughts. The pain and hurt felt by plaintiffs and the Jewish and Israeli students that they seek to represent is genuine and fully understandable. But at bottom, the fault attributed to MIT is its failure to anticipate the bigoted behavior that some demonstrators—however sincere their disagreement with U.S. and Israeli policies—would exhibit as events unfolded. The transgressors were, after all, mostly MIT students whom the school (perhaps naively) thought had internalized the values of tolerance and respect for others – even those with whom one might disagree—that a modern liberal university education seeks to instill. To fault MIT for what proved to be a failure of clairvoyance and a perhaps too measured response to an outburst of ugliness on its campus would send the unhelpful message that anything less than a faultless response in similar circumstances would earn no positive recognition in the eyes of the law.”

These early, somewhat preliminary, federal district court decisions in Title VI campus discrimination cases accepting that primarily anti-Zionist conduct is anti-Semitic in the contexts presented are consistent with prior decisions by regulators, such as the Department of Education’s determination last year that the University of Vermont improperly failed to investigate a variety of anti-Semitic incidents rooted in the perpetrators’ hostility to “Zionism,” and to the Jewish victims’ status as “Zionists,” U.S. Dept. of Educ., Office for Civil Rights, Complaint No. 01-22-2002, The University of Vermont and State Agricultural College, Resolution Letter (Apr. 3, 2023), and the Department of Labor’s guidance on enforcing its “Legal Protections for Religious Liberty in the Workplace” regulations, which explicitly recognizes the connection between Jewish identity and a connection to Israel. U.S. Dept. of Labor, Office of Federal Contract Compliance Programs, Opinion Letter re Legal Protections for Religious Liberty in the Workplace, 41 C.F.R. § 60-50.2, Jan. 8, 2021.

They likewise align with a recent federal court decision in Landa v. Univ. of Maryland, Coll. Park, 2022 WL 2905094, at *7 (D. Md. July 22, 2022), applying Title VII of the 1964 Civil Rights Act, which protects employees from anti-Semitism, holding that punishing an employee for her Zionist beliefs and advocacy establishes a claim of religious discrimination where the employee asserts that “Zionism is a core and fundamental part of her Jewish religious identity” and that “her Zionism is part and parcel of her Judaism.”

They also align with the International Holocaust Remembrance Alliance definition of anti-Semitism (the “IHRA Definition”) and its contemporary examples to the extent they might be useful in assessing evidence of discriminatory intent, including most obviously “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.” Pursuant to presidential executive order No. 13899 (2019), the IHRA Definition is, for all intents and purposes, the law of the land when it comes to Title VI enforcement. (And it is arguably presumptively applicable to Title VII enforcement in that why would different sections of the same act apply different analyses to anti-Semitism claims. The IHRA Definition has also been adopted by numerous state and local jurisdictions.

All of these decisions, regulations, and orders are a welcome affirmation of the law’s recognition of Zionism as a core Jewish identity and a repudiation of the sophistry deployed to reflexively separate anti-Zionism from anti-Semitism and deny Jewish students, employees, and others the protection of anti-discrimination laws.

Rory Lancman is director of corporate initiatives and senior counsel at the Louis D. Brandeis Center for Human Rights Under Law