Washington, DC – Congressman Jamie Raskin (MD-08) today released the following statement on H.R. 6090, the Antisemitism Awareness Act.

“I am a cosponsor of the Countering Antisemitism Act, with Representatives Kathy Manning (D-N.C.) and Chris Smith (R-N.J.), legislation which implements key features of President Biden’s National Strategy to Counter Antisemitism. It would establish the first-ever National Coordinator to Counter Antisemitism, ensure the FEMA Administrator has sufficient resources and personnel needed to carry out the Nonprofit Security Grant Program, and name a senior official within the Department of Education to be responsible for coordinating strategies to counter antisemitism in higher education.

“As we confront the dangerous surge of antisemitism in the United States and around the world, the Countering Antisemitism Act is the legislation we should have voted on this week because it would actually engage the government in productive policy action rather than just immerse us in more rhetorical conflict and confusion over another superficial and symbolic measure.

“With reported antisemitic incidents up by close to 400 percent since Hamas’s terror assault on October 7, we should be focused on implementing President Biden’s National Strategy to Counter Antisemitism to achieve immediate results to protect Jewish students and foster a conducive learning environment for everyone.

“H.R. 6090 would require the Department of Education to continue taking into consideration the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism in enforcing federal civil rights law on campus. The Department of State has used the IHRA’s non-exhaustive ‘working definition, along with examples,’ of antisemitism since 2010. The Department of Education has used it for the last six years, since 2018.

“On May 26, 2016, the IHRA Plenary in Budapest adopted the ‘non-legally binding working definition’ of antisemitism which states:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

“The IHRA ‘definition’ literally does not define antisemitism other than to say, nebulously and inscrutably, that it ‘is a certain perception of Jews.’ It adds that it ‘may be expressed as hatred’ (emphasis added) and made manifest in different ways but still nowhere defines what it is. Thus, the definition falters from the start because it defines antisemitism as a ‘perception,’ and then leaves the elements of that perception completely blank.

“In a legal sense, for the purposes of enforcing criminal law or civil rights law against individuals, the IHRA definition is plainly unconstitutionally vague. It could never withstand a rigorous due process analysis for individual punishment because it does not give a reasonable person particular notice of what the proscribed speech or conduct is in even the most rudimentary sense.

“IHRA compensates for the vagueness of its own definition by offering a series of illustrative examples which have apparently and usefully been taken into consideration for many years now. However, as a matter of legal analysis, illustrative examples do not and cannot cure the vagueness of a legal offense that has never been properly defined in the first place. Moreover, several of the examples themselves introduce new ambiguities and constitutional defects such as overbreadth and viewpoint discrimination.

“Significantly, there are two other competing definitions of antisemitism offered by Jewish organizations, and both of them do substantially better at attempting to define antisemitism for purposes of identifying and opposing it.

“The Jerusalem Declaration on Antisemitism (March 25, 2021) was designed as a response to the obvious failings of ‘the IHRA Definition.’ The authors of the Jerusalem Declaration state:

Because the IHRA Definition is unclear in key respects and widely open to different interpretations, it has caused confusion and generated controversy, hence weakening the fight against antisemitism. Noting that it calls itself “a working definition,” we have sought to improve on it by offering (a) a clearer core definition and (b) a coherent set of guidelines. We hope this will be helpful for monitoring and combating antisemitism, as well as for educational purposes. We propose our non-legally binding Declaration as an alternative to the IHRA Definition. Institutions that have already adopted the IHRA Definition can use our text as a tool for interpreting it.

“The Jerusalem Declaration on Antisemitism then proceeds to define antisemitism this way, treating it as a specific form of racism:

1. It is racist to essentialize (treat a character trait as inherent) or to make sweeping negative generalizations about a given population. What is true of racism in general is true of antisemitism in particular.
2. What is particular in classic antisemitism is the idea that Jews are linked to the forces of evil. This stands at the core of many anti-Jewish fantasies, such as the idea of a Jewish conspiracy in which “the Jews” possess hidden power that they use to promote their own collective agenda at the expense of other people. This linkage between Jews and evil continues in the present: in the fantasy that “the Jews” control governments with a “hidden hand,” that they own the banks, control the media, act as “a state within a state,” and are responsible for spreading disease (such as Covid-19). All these features can be instrumentalized by different (and even antagonistic) political causes.
3. Antisemitism can be manifested in words, visual images, and deeds. Examples of antisemitic words include utterances that all Jews are wealthy, inherently stingy, or unpatriotic. In antisemitic caricatures, Jews are often depicted as grotesque, with big noses and associated with wealth. Examples of antisemitic deeds are: assaulting someone because she or he is Jewish, attacking a synagogue, daubing swastikas on Jewish graves, or refusing to hire or promote people because they are Jewish.
4. Antisemitism can be direct or indirect, explicit or coded. For example, “The Rothschilds control the world” is a coded statement about the alleged power of “the Jews” over banks and international finance. Similarly, portraying Israel as the ultimate evil or grossly exaggerating its actual influence can be a coded way of racializing and stigmatizing Jews. In many cases, identifying coded speech is a matter of context and judgement, taking account of these guidelines.
5. Denying or minimizing the Holocaust by claiming that the deliberate Nazi genocide of the Jews did not take place, or that there were no extermination camps or gas chambers, or that the number of victims was a fraction of the actual total, is antisemitic. 

“The Nexus White Paper, which is not designed ‘as a legal document but rather as a guide for policymakers and community leaders,’ provides another useful substantive working definition, stating that: 

Antisemitism consists of anti-Jewish attitudes, actions or systemic conditions. It includes negative beliefs and feelings about Jews, hostile behavior directed against Jews, and conditions that discriminate against Jews and impede their ability to participate as equals in political, religious, cultural, economic, or social life.

Uniting all of antisemitism’s strands is a persistent demonization that casts Jews not only as “others” (i.e., as intrinsically different or alien) but also as irredeemably threatening and dangerously powerful — as troublemakers, shysters, capitalists, anarchists, communists, sexual degenerates, etc. The elements that make up antisemitism derive from various historical conditions, and in our current time combine to form pejorative claims that include religion, race, culture and politics. They portray Jews as secretive, manipulative, untrustworthy, controlling, and dangerous — as well as responsible for other people’s suffering.

Understanding and addressing antisemitism is important in its own right, and it is a critical part of the broader struggle against all forms of oppression.

Antisemitic behaviors and conditions may emerge from indifference, stereotyping, or the rejection of Jewish perspectives and interests because they are held by Jews. It is even possible to engage in antisemitic behavior, or to promote antisemitic conditions, without holding expressly prejudicial attitudes toward Jews. In some cases, antisemitic behaviors and conditions may coexist with positive attitudes toward certain Jews or Jewish institutions.

Antisemitism can present in different forms; people change it and adapt it to their own social, political, cultural, religious, and historical circumstances. It can be used to target Jews of all races, denominations, gender identities, levels of observance, and political ideologies.

Antisemitism fulfills a social function: It provides an explanation for social disorders. People use it to demonize and fuel the oppression of any minority and all minorities, while fomenting division between Jews and other minorities.

“Just as these three definitions differ with respect to the core meaning of the term ‘antisemitism,’ they also take different positions on the question of whether, when and how expressions of criticism of the Israeli government or opposition to Zionism should be deemed antisemitism, and even some of each group’s own explanations on the matter invite more controversy and doubt rather than producing more certainty.

“The semantic and interpretive morass around defining antisemitism underscores the essential futility of the enterprise of codifying a kind of bigotry in speech and thought, something we have never needed to do, and have never done, in statute. We have multiple laws against acts of race, sex, religious and age discrimination but nowhere do we attempt to codify the general meaning of ‘racism,’ ‘sexism,’ ‘religious animus,’ or ‘ageism,’ for example. The general phenomenon of the contemptuous attitude described becomes recognizable and actionable only in the conduct of a perpetrator committing specific criminal or civilly wrongful actions.

“In this sense, the essential emptiness of the IHRA definition is apparently its appeal. H.R. 6090 directs the Department of Education to ‘take into consideration’ the contentless IHRA Definition (‘a certain perception’), which means the legislation adds essentially nothing to the prevailing common-sense approach Department of Education officials use to understand antisemitism. Because it does not attempt to define antisemitism, the IHRA Definition must draw in practice on the other two definitions, which have a lot to recommend them, or more likely the common sense of the officials implementing Title VI, which is the standard they use along with other guidance to understand and approach racism, sexism and other forms of discrimination. The problem is that there is a Finding in Section 3 of this Bill which says that, ‘The use of alternative definitions of antisemitism impairs enforcement efforts by adding multiple standards and may fail to identify many of the modern manifestations of antisemitism,’ which is of course false and nonsensical. For how could the use of additional definitions reduce the number of cases identified? Fortunately, this finding does not alter the definition in the legislation nor could it exclude any of the relevant characteristics of antisemitism actually enumerated in the other two organizational definitions from being considered because the IHRA definition is a completely open-ended one (‘a certain perception’).

“The effective constraints on this vague definition are, by definition, the constitutional ones contained in the First Amendment. The use of the definition and appended illustrative examples—which can seem vague, overbroad and sometimes viewpoint-discriminatory—do not alter anything in practice that is already being done by the Department of Education to monitor antisemitic harassment on campus. This is the same ‘standard’ already in use. Moreover, for this legislation to pass constitutional muster, courts would have to use the canon of ‘constitutional avoidance,’ meaning that it would have to be interpreted to avoid collision with First Amendment values and boundaries. Thus, if any actual speech is targeted on a viewpoint-specific basis, the Department of Education could not lawfully act against speech on that basis and, if it does, it would have to be deemed unconstitutional. For example, if a university prohibits students from opposing ‘any form of religious or ethnic nationalism except Zionism’ or, in reverse, prohibits students from opposing ‘Zionism but not any other form of religious or ethnic nationalism,’ this would be textbook viewpoint discrimination under the First Amendment. 

“Because the bill does not alter the status quo and simply teases out all the constitutional problems already immanent in governmental use of a standardless standard under Title VI, the Republican Majority again brings to the floor nothing of a positive pragmatic nature in the fight against antisemitism, racism or intolerance. Although the legislation is therefore essentially symbolic, its champions have told Americans it will make a big difference in countering the sickening resurgence of antisemitism in our country, clearly visible from the Charlottesville, Virginia antisemitic riot in August of 2017 to the far-right insurrectionary riot incited by ex-President Donald Trump on January 6, 2021, where a rioter wore a sweatshirt carrying the message ‘Camp Auschwitz, Staff,’ to an anti-Israel protester carrying a ‘Final Solution’ sign at George Washington University just last week to Representative Marjorie Taylor Greene’s tweet yesterday reviving the original antisemitic charge of deicide. But it is hard to believe this bill will make any difference in really combatting antisemitism given that the Department of Education is already using this standard and given the basically meaningless nature of the change. A serious approach to the problem would be to pass the Countering Antisemitism Act, which has bipartisan and bicameral support and would involve concrete administrative steps to implement President Biden’s whole-of-government approach to fight antisemitism.

“At this moment of anguish and confusion over the dangerous surge of antisemitism, authoritarianism and racism all over the country and the world, it seems unlikely that this meaningless ‘gotcha’ legislation can help much—but neither can it hurt much, and it may now bring some people despairing over manifestations of antisemitism a sense of consolation.

“The overriding thing is we need to keep Americans united against authoritarian and fascist forces in our country and abroad. Let’s bring the bipartisan Countering Antisemitism Act to the floor as soon as possible, so we can act in unity and purpose against the truly dangerous threats that are out there. All of the tyrants of the world have converged around ex-President Donald Trump’s openly authoritarian campaign for office—this is the true threat to liberal democracy—and we must act together to oppose the dangerous forces he has unleashed at home and abroad.” 

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