Missouri should fight harassment of Jews, not limit criticism of Israel

The Missouri legislature is currently considering House Bill 937, which adopts a definition of antisemitism from the International Holocaust Remembrance Alliance (IHRA), requires all public educational institutions to incorporate this definition into their codes of conduct, establishes a coordinator to refer antisemitism violations as Title VI complaints to the US Department of Education, mandates tracking and public reporting of incidents, and creates K-12 curriculum about Jewish American history.

There is some great content in here, for example, the novelty of creating new K-12 curriculum. Many aspects of Jewish history in the US relate to increasingly distant events, and schools around the nation could use high-quality materials.  It is also valuable to create structures to report harassment and publish data tracking complaints.

Despite its merits, the bill is problematic because its definition of antisemitism conflates harassment against Jewish people with political speech that is not ordinarily subject to legislation regardless of whether some people (like myself) might consider it offensive.

Legislating speech is dangerous whether you agree or disagree with its content

Some statements would be rendered educational conduct violations under Missouri law under the IHRA definition of antisemitism, notably:

1. Referring to Israel’s existence as a racist endeavor.
2. Referring to Israel as currently committing genocide against the Palestinian people.

Whether in agreement with neither, both, or either of these statements, I would like politicians in Jefferson City to focus on harassment instead of speech.  Harassment is staggeringly common for Jewish people in educational institutions, including being subjected to physical and verbal threats, being denied access to public spaces, having religious artifacts destroyed or stolen, having property vandalized notably with hate symbols, and suffering both informal ostracism and formal exclusion from school groups sometimes based on political litmus tests regarding a nation halfway around the world where these individuals do not vote and may never even have visited.  None of this is okay, and we should focus on these urgent problems rather than political speech.

The bill does not prevent all criticism of Israel—the IHRA accepts critique when it is “similar to criticism toward any other country.”  In principle I agree with this line and draw it there too in my personal life.  However, in a legal setting the word “similar” is too ambiguous.  Nothing is ever the same as something else, so when is it considered similar enough?  The answer: Whatever politicians think.  When the bill’s sponsor George Hruza was asked “if, for example, allegations that Israel is committing genocide in Gaza would be considered antisemitic speech under his bill. Hruza said that they would.”  It should be chilling that some types of criticism are already described as out of bounds.

In the first of the above two cases of political speech, I vehemently agree that referring to Israel’s existence as a racist endeavor is problematic. Indeed, doing so is itself racist or, at the very least hypocritical, coming from people in nations like the US. The notion of “Zionism”—that is, “self-determination and statehood for the Jewish people in their ancestral homeland, the land of Israel”—is often discussed as a belief or project that could still be undone rather than completed historical act that resulted in a legal entity. Israel is no more founded on genocide than the US, Canada, or Australia, and no more an ethnostate than most of the world, including nations in Europe that offer ancestry citizenship to many white Americans who have never set foot there while denying equal rights to people of color who have lived within their borders for generations.  Somehow Israel is treated by “anti-Zionists” as an illegitimate nation because it has features that are unfortunate yet go unnoticed or are considered perfectly acceptable for other nations.

Calling Israel’s existence a racist endeavor is in my opinion hypocritical, ahistorical, and frankly racist, but even so, until we are talking about harassment, I’d like to leave the state of Missouri out of it.  I don’t want the Missouri legislature to agree with my personal opinions so strongly that they enshrine them into law—what if the state agrees with me this time but disagrees the next?  And do I really want education professionals disciplined for holding a different opinion?

In the second case of political speech— referring to Israel as committing genocide—many thoughtful people who love and cherish the state of Israel have deep concerns about the Netanyahu government’s actions in Gaza and the West Bank.  About whether these actions constitute genocide, I would personally value everyone having the freedom to engage this question without potentially violating employee conduct.  Netanyahu’s regime becomes only harder to understand let alone justify by the day, and Missouri should not put anyone at risk for having conversations that need to be had.

Supporters claim the Missouri bill does not legislate political speech—sorry, it does

The IHRA definition of antisemitism is more controversial than the authors of the Missouri bill tend to portray.  It is widely used, but being popular doesn’t necessarily mean being right.  The IHRA was not intended for legal purposes but rather to standardize data collection as follows: “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 definition is not so controversial as two of the 11 examples provided to apply it: “[d]enying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor” and  “[a]pplying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”

Interestingly, the authors of the Missouri bill removed two key pieces of the IHRA definition, creating problematic gaps that limit the public’s ability to evaluate the bill properly.

In the first gap, the bill does not list the 11 examples but says it “include[es] its contemporary examples.”  There is no good reason not to list them—there is no engraving cost per word or printing cost per page, no legitimate barrier to transparency by including what is central to the bill’s controversial nature.  The IHRA examples are succinct and require little space.  As a result, the controversial aspect is not available to lawmakers or the public for scrutiny unless they cross-reference a separate document, when they have no reason to believe that is necessary.

Second, the bill’s authors removed a key phrase from the title of the IHRA definition: “non-legally binding”!  Yes, that is correct, the notion that the definition should not be used for legally binding purposes literally appears on the IHRA website before the words “working definition of antisemitism.”  In conversation, some proponents of the Missouri bill refer to the IHRA definition as non-binding and not having the force of law.  However, this statement is objectively true of the IHRA but false of the bill.  I am curious why this very important two-word phrase was removed.  If it was accidental then we should put it back and if it was deliberate, then the bill’s sponsors should be transparent about the reason.  The authors should clarify whether the Missouri bill considers the IHRA definition binding, and in the meantime, only those of us who follow this topic closely would know that it was removed.

The bill is indeed quite binding for establishing a “non-binding” definition.  It has potential employment consequences—evaluating students and employees of educational institutions with respect to their codes of conduct.  If this law passes, it would make educators violate our workplace’s code of conduct if we criticize Israel’s conduct in a way that is not considered “similar” enough to how we criticize other countries’ conduct according to whoever interprets that.  People who work outside the education sector are outside the reach of this law and can say anything they want.

Given that I work in an educational institution, this bill puts me personally in jeopardy.  As an employee of the private institution Washington University, the law would not apply to me immediately, but over time our leadership would naturally consider harmonizing their policies with those of state law any time these policies conflict.  It is telling that the people I see advocating strongly for this bill do not themselves have paid employment in the education sector, and they put other people’s employment at risk with no risk to themselves.

In a bit of presumably unintended humor, the bill states within it that “Nothing in this section shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States or the Constitution of Missouri.”  Okay, so nothing shall infringe upon First Amendment rights except for the part that infringes upon First Amendment rights.

Taken together, Missouri 937 sneaks in prohibitions on criticizing the existence of Israel and even on criticizing the government of Israel—unless the criticism isn’t similar enough to other undefined criticism—which are deeply problematic.  The first of these I believe is offensive but should not violate a code of conduct, and the second of these I would like the option to do myself.

There are alternatives that do not chill political speech

There are options to the IHRA definition, notably from the Jerusalem Declaration on Antisemitism (2021).  The JDA was written in reaction to this ambiguity of conflating criticism of Jewish people on political vs. religious grounds: “Antisemitism is discrimination, prejudice, hostility or violence against Jews as Jews (or Jewish institutions as Jewish).”  They also offer examples, within which they state that is it not antisemitic to criticize Zionism or “argu[e] for a variety of constitutional arrangements for Jews and Palestinians in the area between the Jordan River and the Mediterranean.”

JDA offers a cleaner definition for legal purposes and makes for better conversations.  Conflating “anti-Zionism” and antisemitism gives cover to antisemitic people.  The faulty IHRA definition allows them a free pass to dismiss any criticism of their hateful words and actions—they deflect accountability by trivializing the entire concept of antisemitism.

Other states have addressed antisemitism in educational institutions by treating Israel as one more nation and Judaism as one more religion.  Last month California overwhelmingly passed AB 715, a bill that strengthens anti-discrimination protections based on religion and nationality, removes discriminatory content from curriculum and other materials, and establishes an antisemitism coordinator.  The bill did not codify a definition of antisemitism, instead listing it as one of many forms of religious discrimination within a larger framework.

Let’s fight harassment against Jewish people without an overly expansive definition of antisemitism

The bill we are considering in Missouri has the potential to do some great things, notably:

1. Establishing K-12 educational modules related to Jewish American life.
2. Establishing an enforcement mechanism for harassment.
3. Releasing data on reported incidents.

If we create good curriculum, good reporting structures, and good enforcement mechanisms—and we follow them—then we don’t need more definitions.  Missouri can follow California’s lead, protecting Jewish students rather than consuming oxygen on definitions of antisemitism that chill political speech.

I would personally like to focus on ending the harassment of Jewish students, and believe we are best served by allowing political speech regardless of my feelings about that speech.

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A version of this blog appears in my Substack “What Did You Expect?” @HillaryAngerElfenbein.