BROOKE GLADSTONE: This is On the Media. I'm Brooke Gladstone.

BOB GARFIELD: And I’m Bob Garfield. It is by now all too clear that the 2016 election pried loose myriad hatreds from their hiding places in the fringes of society. This includes, of course, one of history's most recurring and deadly bigotries.

[CLIPS]:

WHITE SUPREMICISTS CHANTING: Jews will not replace us.

FEMALE CORRESPONDENT: Police are investigating yet another act of vandalism at a Jewish cemetery.

FEMALE CORRESPONDENT: New tonight, Jewish community centers around the country have been hit with another round of bomb threats.

FEMALE CORRESPONDENT: Earlier this month, a Chicago area synagogue was vandalized and defaced with swastikas, part of a disturbing trend.

[END CLIP]

BOB GARFIELD: Federal hate crime reports show that incidents targeting Jews increased early in the age of Trump. According to data collected by the Anti-Defamation League, colleges and universities have seen a particular spike in anti-Semitic acts, this alongside growing outrage surrounding the Israeli-Palestinian conflict. Enter the Anti-Semitism Awareness Act of 2018, a bipartisan bill recently introduced in Congress that would force universities to protect Jewish students from anti-Zionist speech or risk losing federal funding, but at what cost to free speech and academic freedom?

Michael Lieberman is Washington counsel for the Anti-Defamation League, one of the principal lobbyists behind the bill. Michael, welcome to the show.

MICHAEL LIEBERMAN: Thanks, Bob.

BOB GARFIELD: Why do we need this?

MICHAEL LIEBERMAN: Well, I think the starting point is that federal civil rights law does not protect religion, Jews, Muslims, Christians and others from religious discrimination. The relevant statute is Title VI of the Civil Rights Act, much less famous than Title VII, which does include religion in the workplace. But Title VI is about federally-funded programs, and religion is not covered, only race, color and national origin.

There is a 2010 Obama-era Dear Colleague, which is a way that the Department of Education provides guidance, and there is a Dear Colleague that said that the, the Obama administration Department of Education will broadly interpret Title VI so that shared ethnic characteristics of Jews, of Muslims, of Sikhs can be investigated. But that's only one administration's interpretation of the law.
The reason the Anti-Semitism Awareness Act is important is because it would codify, at least for religion, the coverage that is now just a thin read of a Dear Colleague letter from 2010.

BOB GARFIELD: Once the government starts to define improper speech and to have sanctions against universities for somehow permitting them, you have suddenly run square into the First Amendment, which permits all sorts of ugly speech, even anti-Semitic speech. Famously, the Ku Klux Klan marched in Skokie in the -- Illinois in the late ‘60s, which was an enclave of Holocaust survivors. So how does this not run into a, a major First Amendment obstacle?

MICHAEL LIEBERMAN: So if the bill did what you are concerned about then we would be opposing it too. Our belief is that even the most hateful speech, even the most anti-Semitic speech, even, in this case, the most harsh criticism of Israel is protected speech, but when you cross the line into harassment, intimidation, unlawful discrimination and you’re couching your language in some kind of anti-Israel or anti-Zionism, that's not okay. You don't have a “get-out-of-investigation free card” because you're couching it in political terms or anti-Israel, anti-Zionism terms.

BOB GARFIELD: I want to read from some of the language in the guidelines: “Making mendacious, dehumanizing, demonizing or stereotypical allegations about Jews as such or the power of Jews is collective, such as especially but not exclusively the myth about the world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.” Then there's a separate one for Holocaust denial and yet a third, the denying of the Jewish people their right to self-determination, e.g., by claiming that the existence of the State of Israel is a racist endeavor. This seems to be banning the expression of certain political views or opinions.

MICHAEL LIEBERMAN: If this legislation used the State Department definition that you've just quoted from as a trigger for investigation, the Anti-Defamation League would not be supporting it. But the plain language of this legislation simply requires the Department of Education to, quote, “take into consideration” that definition, quote, “as part of the Department's assessment of whether an investigation is warranted.”

The State Department definition, Bob, definitely includes protected First Amendment speech but to use the State Department definition, the concept of world Jewish conspiracy, blaming Jews for whatever Israel does, the notion of dual loyalty, these kind of classic stereotypical anti-Semitic memes and Jew hatred, that is useful as a training and technical assistance guide as part of the assessment. That language we are comfortable with, if it’s --

[BOTH SPEAK/OVERLAP]

BOB GARFIELD: If we were in Europe, we might not even be having this conversation because, at least in Germany and I think throughout the EU, there are statutes that make Holocaust denial, for example, illegal, Nazi demonstrations illegal. But we here have near-absolute freedom of speech and it's hard for me to understand how guidelines, even, for legislation that mandates federal investigations of harassment is not putting us on a slippery slope away from First Amendment rights.

MICHAEL LIEBERMAN: Every anti-Semitic act, every anti-racial act, every Islamophobic act on campus is not a federal case and should not be a federal case. First, you have to have harassment that is sufficiently severe, pervasive or persistent so as to interfere or limit an individual's ability to participate or benefit from services. In other words, it’s got to be something really big. It denies a student or a group of students an equal educational opportunity. But even that, Bob, would not be enough to trigger a federal investigation. You have to have a school, administrators, principal, campus president who does nothing about it or ignores it. Those are going to be really rare circumstances, and your concern about a slippery slope is valid but so remote that we feel comfortable with this legislation.

BOB GARFIELD: Is there actually a problem? Are there students who have found themselves harassed, intimidated, bullied, deprived of their educational opportunities who have been unable under existing structures to get help and remedy from their universities?

MICHAEL LIEBERMAN: The legislation is prophylactic. There have been a number of different complaints that have been brought since 2010 under the Obama administration interpretation, the idea of including religious discrimination and possible anti-Zionist activity crossing the line into anti-Semitism. The Anti-Defamation League has not been involved in any of those cases but we believe strongly that it's proper for the Department of Education to be able to be educated on current manifestations of anti-Semitism, so that they know this type of case when they see it and are in a position to do something about it.

BOB GARFIELD: Michael, thank you very much.

MICHAEL LIEBERMAN: Thanks, Bob.

BOB GARFIELD: Michael Lieberman is Washington counsel for the Anti-Defamation League.

The definition of anti-Semitism that would be codified in the Anti-Semitism Awareness Act was not drafted by authors of the bill. It was plucked from Obama administration guidance for investigators to evaluate possible on-campus infractions and that, in turn, was harvested from older guidelines for data basing hate crimes. But the original author, the American Jewish Committee's Kenneth Stern, has told Congress that enacting a law based on his standards would, among other chilling effects, create a cudgel for conservative interest groups to punish universities for tolerating harsh criticism of Israel.

KENNETH STERN: I was the lead drafter of what was then called “The Working Definition of Anti-Semitism.” It was developed particularly for data collectors in Europe after the collapse of the peace process and the eruption of anti-Semitic incidents, but they had no common definition across borders. They had no capacity to really tell people on the ground what to look for. So that was how the definition was drafted. It was never drafted with the intention of chilling speech on American college campuses, and when I saw that started to be how it was abused back in 2010, I started speaking out about it.

BOB GARFIELD: Now, you say “abused.” We just got done speaking to Michael Lieberman of the ADL --

KENNETH STERN: Yeah.

BOB GARFIELD: -- who says that there is no such chilling, that this language happened to be useful for giving investigators a notion of when on-campus harassment or worse rises to the level of government investigation.

KENNETH STERN: The irony is that when I was at the American Jewish Committee, I was a complainant in a Title VI case that was about anti-Semitic harassment of Jewish students at a high school. It had nothing to do with Israel but nobody ever said we needed a definition of anti-Semitism.

What happened was that starting in 2010 you start having Jewish groups on the right of the spectrum that decided to marry the definition with Title VI and they were focusing on complaints that talked about what they perceived to be anti-Israel student activism, what people were teaching in classes and put forward Title VI cases. When they lost those cases, then they tried to get the University of California system to adopt a definition and, when that failed, they’re now trying to get Congress to adopt it. And some of the material that was used back in 2016 when this was first proposed to the Senate, you know, Jewish students aren’t being protected like other students, and they gave examples of things that were chilling speech, when a professor was punished for saying something anti-gay and fired, when a film, the American Sniper, was perceived as anti-Muslim and not allowed to be shown, rather than saying these examples are ones that show a violation of free speech and academic freedom, this will protect us from things we don't like to hear too. And the irony is that a college campus ought to be the location to really dig down deeply into the complexities of the Israeli-Palestinian conflict.

BOB GARFIELD: To have everything on the table under the rubric of academic freedom.

KENNETH STERN: Oh, absolutely! I know professors who teach Jewish Studies who are concerned that if this becomes law they’re going to have people looking over their shoulders in terms of what they’re assigning, the discussions in the classroom. And if your, you know, PhD is in 19^th century shtetl Jewish life and you’re teaching a class on modern Israel and you’re afraid you’re going to get beat over the head for teaching about modern Israel, you’re going to teach about 19th century, right? So it’s going to really harm Jewish students and the whole academic enterprise, in the long run, if it’s passed.

BOB GARFIELD: The second area of concern is the conflation of anti-Semitism with criticism of Israel or denial of a homeland and, with the understanding that sometimes anti-Israeli rhetoric may well be rooted in a deeper anti-Semitism, they’re certainly not synonymous.

KENNETH STERN: Sometimes it is, sometimes it isn't, but what's clear to me is that there’s a debate inside the Jewish community about Israel and where -- beliefs about Israel and Jewish identity. I don't know how that's going to be resolved but I know Congress should not be the body that resolves it. And by taking this definition and enshrining it, it’ll be basically solving that, at least as, as it applies to Jewish students on campus. And I have to tell you, too, I’ve seen Jewish students who are active in pro-Palestinian activities that have been told they should not be able to wear a, a yarmulke, a kippah, that they’re not really Jews, that they’ve been victims of harassment too. The legislation, if it passes, would not protect those Jewish students from harassment on campus but would protect those who are pro-Israel.

I mean, one of the things that came up in the testimony, too, is one of the people who is a proponent said, well, you know, the definition of anti-Semitism changes over time, so do we really want to open up, okay, we have to go revisit what the definition is now and in the future? Do we want to have different competing groups inside and outside the Jewish community lobbying Congress about what to next put in or to take out? Do we want to open up the Pandora's box of other communities that don't have a common idea of what the prejudice is that’s, that’s focused on them? Are you going to have African American groups saying, let’s have a, you know, an akin type of definition; opposition to affirmative action is something that should be considered in seeing where there’s harassment of black students or support for the continuation of Confederate statues, Palestinian groups saying that denial of the Palestinian right to exist and their national self-determination might be seen as anti-Palestinianism. The Pandora's box effect of this would be a disaster.

BOB GARFIELD: We began this segment by reviewing just precisely how outbreaks of anti-Semitism have spiked in the last few years, not only in the United States but around the world, including on college campuses. It’s not a non-problem. However, if not having detailed definitions into Title VI, what solutions are there? What role can the federal government play to protect students in an academic environment from the worst abuses of anti-Semitism?

KENNETH STERN: I'm so glad you asked that because one of the things that really troubles me about this whole attempt to pass legislation that will inherently chill speech is that it makes it less likely to do the things that would actually have an impact on campus. There are very few classes that go into the full breadth and scope and history of anti-Semitism. There are very few classes that will take a conflict like this where people have their passions and their identity and wrapped up around an issue of perceived social justice affecting their thinking and telling students, what happens to human beings when you're in that situation, how hatred applies to the human condition and how anti-Semitism fits among it?

There so many educational opportunities here. My friends who are supporting this legislation say, well, you know, Jewish students need to be safe, to feel safe. Well, my understanding of a college education is that making students feel safe wastes a hell of a lot [LAUGHS] of money from parents and a lot of time on the students. They should be wrestling with really difficult issues. They should be thinking about how they think about things. To be disturbed on a college campus by an idea is a good thing. Nobody wants harassment. The law already protects against that. But by defining ideas that are seen as disturbing or distressing, we’re basically treating students as infants and we’re doing them a disservice.

BOB GARFIELD: Ken, thank you very much.

KENNETH STERN: Thank you so much for having me.

BOB GARFIELD: Kenneth S. Stern, longtime director of the Division of Anti-Semitism and Extremism for the American Jewish Committee, is the executive director of the Justus & Karin Rosenberg Foundation.

[MUSIC/MUSIC UP & UNDER]

BROOKE GLADSTONE: And in other religious news, the Bible. Here’s Attorney General Jeff Sessions speaking Thursday to a crowd of supporters at Parkview Field, a Minor League Baseball stadium in downtown Fort Wayne, Indiana, justifying the policy of dividing families at the southern border.

[CLIP]:

ATTORNEY GENERAL JEFF SESSIONS: Persons who violate the law of our nation are subject to prosecution. I would cite -- you to the apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained, ordained the government for his purposes. Orderly and lawful processes are good in themselves. Consistent, fair application of law is in itself a good and moral thing.

[END CLIP]

BROOKE GLADSTONE: Now, it’s been noted that that very passage was used by American slaveholders to justify slavery but it wasn’t the only passage they favored. They also liked to quote a story from Genesis, Chapter 9, which describes Noah getting naked and dead drunk on wine and then being seen by his son Ham and grandson Canaan in that embarrassing condition. Noah curses Canaan, but inexplicably not Ham, to be forever a slave. And though the Bible never mentions it, slaveholders, nevertheless, held that Canaan, unlike the rest of his family, was black.

This clearly demonstrates the everlasting relevance of the Bible and its infinite flexibility, enhanced by having two completely different gods to choose from, the angry god of the Old Testament and the forgiving god of the New. In our nation, this has proved especially useful for people justifying things that are impossible to justify. They mostly seem to draw their biblical backing from the Old book. Some religious people, of course, object and always have.

Noel Rae, in his book The Great Stain, quotes one such critic: “I love the pure, peaceable, and impartial Christianity of Christ; I therefore hate the corrupt, slave-holding, women-whipping, cradle-plundering, partial and hypocritical Christianity of this land. Indeed, I can see no reason but the most deceitful one for calling the religion of this land Christianity…” That was abolitionist Frederick Douglass, who happens to have a prominent fan who also happens not to like Jeff Sessions.

[CLIP]:

PRESIDENT TRUMP: Frederick Doug -- Douglass is an example of somebody who’s done an amazing job and is being recognized more and more, I notice.

[END CLIP]

BROOKE GLADSTONE: Keep on truckin’, Fred. We need you.

BOB GARFIELD: That’s it for this week’s show. On the Media is produced by Alana Casanova-Burgess, Jesse Brenneman, Micah Loewinger, Leah Feder and Jon Hanrahan. We had more help from Kate Brown and Meg Harney. And our show was edited -- by Brooke. Our technical director is Jennifer Munson. Our engineers this week were Sam Bair and Greg Rippin.

BROOKE GLADSTONE: Katya Rogers is our executive producer. On the Media is a production of WNYC Studios. I’m Brooke Gladstone.

BOB GARFIELD: And I’m Bob Garfield.

* [FUNDING CREDITS] *