University professors’ organization misunderstands the nature of antisemitism

The American Association of University Professors (AAUP) is among the most respected and influential college and university teachers’ organizations in the U.S. Founded in 1915, the AAUP’s stated mission is “to advance academic freedom [and] define fundamental professional values and standards for higher education.”

It is therefore disheartening that the organization has badly failed to comprehend the nature of antisemitism, which, as just reported by CNN, is a growing problem on many campuses.

A new “policy document” by the AAUP’s Committee on Academic Freedom acknowledges the “threat of antisemitism” in a perfunctory half-sentence and then spends two full pages – half its length – explaining it away.

The report, published in the AAUP’s 2022 Summer Bulletin, addresses the “Legislative Threats to Academic Freedom” found in recent statutes, mostly in red states, restricting subject matter and mandating approaches to history instruction in public schools from kindergarten through college. The opening section of the document is devoted to the committee’s rejection of a Florida statute that codifies the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism, imposing financial penalties on school districts and institutions whose practices are found out of compliance.

It is vital for the AAUP to challenge such political interference in curriculum design concerning antisemitism or other subjects, especially when coupled with funding consequences. But the policy document goes further, disparaging the IHRA definition, and actually arguing that antisemitism should not be specifically covered in civil rights legislation.

The IHRA’s 2015 “Working Definition of Antisemitism” has been adopted or endorsed by 37 governments, including the U.S., the European Union, the Organization of American States and numerous non-governmental organizations. Comprising an introductory statement and 11 illustrative examples, the definition is explicitly “non-binding” and was never intended to be legally enforceable.

As explained by Kenneth Stern, one of the principal drafters, the definition was created for purposes of education and data collection, not as a speech or teaching code. Thus, the AAUP committee was quite right to object to the potential “weaponization” of the definition to punish teachers and schools.

It should have stopped there. Instead, the committee went on to mischaracterize the IHRA definition as equating “criticism of the policies of the state of Israel with antisemitism,” intended to protect Israel from “critical examination of [its] history and policies.” This is flatly untrue. Although curiously omitted from the committee’s appraisal, the IHRA unambiguously states that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.”

One of the 11 IHRA examples does note that “applying double standards to Israel” may constitute antisemitism “by requiring of it a behavior not expected or demanded of any other democratic nation.” That should be unobjectionable. A double standard is the essence of discrimination. Is there any question that criticisms of nations and governments may encompass implicit appeals to racism?

Consider the description of COVID-19 as the “China virus,” complaints about Japan’s aggressive export policy, descriptions of social arrangements in Arab and Muslim countries or condescending references to the economic circumstances of African nations. In each of these cases, and others, racial and religious prejudices have been thinly veiled in superficially political terms. The IHRA points out that the same can be true of Israel, depending on the context.

More troubling is the AAUP committee’s gratuitous assertion that antisemitism should not be covered as a “special form of discrimination” in civil rights legislation but addressed only “as religious or race discrimination.” This claim betrays either stunning ignorance or callous disregard for the uniquely protean history of antisemitism, a conspiracy-based ideology that shape-shifts among religious, racial, ethnic, national, cultural, genetic and other hatreds, whichever is most destructive at any particular time.

Moreover, it is not clear that antisemitism is indeed covered by laws prohibiting religious and racial discrimination, at least regarding America’s million or more non-practicing Jews. The Nazis declared Jews racially distinct; there is surely no reason for the AAUP to follow suit.

Objections to “special” forms of discrimination have a sordid history. Until 2020, when the U.S. Supreme Court decided the Bostock case, gay and transgender people were not clearly covered by the Civil Rights Act of 1964. Many liberal jurisdictions therefore passed legislation specifically protecting the LGBT+ community over the protests of those who claimed that gay people were demanding “special rights.”

Ironically, the AAUP committee members teach at universities that recognize numerous forms of discrimination beyond race and religion. The chair is at San Diego State University, which prohibits discrimination based on “age, disability (physical or mental), gender (or sex), genetic information, gender identity (including transgender), gender expression, marital status, medical condition, nationality, race or ethnicity (including color or ancestry), religion or religious creed, sexual orientation, and veteran or military status.” 

The other members’ schools have even more protected categories, such as “parental status (including status as a foster parent),” “domestic violence victim status,” “gender transition status” and use of worker’s compensation, among others.

Given the range of anti-discrimination policies under which most faculty are already working, the call to exclude antisemitism is tone deaf, or worse.

The IHRA definition has its shortcomings; as with most approaches to complex social issues, it may be abused. It should never have been written into law. The AAUP report on “Legislative Threats to Academic Freedom” rightly denounces the Florida legislature’s political interference and statutory weaponization. But the drafting committee had no expertise on defining antisemitism and no competence on writing civil rights laws.

Intellectual life at American universities would be unrecognizable without the AAUP’s efforts for over 100 years. Nonetheless, the Committee on Academic Freedom has unaccountably ventured far beyond its remit, damaging its own credibility and compromising the AAUP’s historic mission.

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery” and a life member of the AAUP.