The Court Is Wrong: Antizionism Is Discriminatory

The First Circuit Is Wrong: Antizionism Is Discrimination Against Jews

On October 21, the First Circuit Court of Appeals dismissed the Title VI claims brought by Jewish students against MIT. Last week, a federal district court in Massachusetts relied on the same reasoning to dismiss a discrimination suit against Harvard.

Both rulings leaned heavily on a now-familiar and deeply flawed refrain: antizionism is not discrimination. This conclusion rests on three mistaken assumptions:

1. Discrimination cannot be political.
2. Discrimination requires consensus.
3. Discriminators must be consciously hateful.

I am a professor of civil rights and constitutional law. I have taught and studied antidiscrimination law for over a decade, and I have spent my entire life learning about how Jew-hatred manifests and evolves. Here is what I know: the First Circuit is wrong. Antizionism is anti-Jewish discrimination.

1. Discrimination Is Often Political

The claim that antizionism cannot constitute unlawful discrimination because it is “political” is legally indefensible. Politics and discrimination have always been intertwined.

Discrimination against women? Political.
Anti-Black racism? Political.
Antisemitism? Political.

The idea that political motivations immunize discriminatory conduct is a radical departure from how antidiscrimination law has functioned for decades.

Misogyny, for example, has always been saturated with political beliefs: that women are inferior, unfit to vote, incapable of professional authority, or meant to remain in the private sphere. These positions are deeply political. Yet when women are denied jobs or education because of such beliefs, the law recognizes this as unlawful discrimination—not political speech.

The same is true of anti-Black racism. It has never been merely personal animus. It has served—and continues to serve—explicit political purposes: preserving economic advantage, consolidating power, justifying exclusion, and reinforcing hierarchies. Across centuries, both anti-Black and anti-Jewish discrimination have been constructed and deployed for political ends.

To assert that antizionism cannot be discriminatory because it is political is to reject the basic legal understanding of how discrimination operates.

2. Discrimination Does Not Require Consensus

Another erroneous theory: that antizionism is not discriminatory because there is no “consensus” defining it as such, or because some antizionists are themselves Jewish.

But discrimination has never required consensus to be legally actionable.

When courts in the 1980s began recognizing sexual harassment as discrimination, many men—and many women—did not see it that way. Some women reported feeling flattered by workplace advances. Many men believed their attention constituted “preferential treatment.” Yet the lack of consensus did not prevent courts from correctly identifying harassment as a form of sex discrimination.

Similarly, not all members of a protected class must perceive conduct as discriminatory for it to be unlawful. If legal protection against anti-Black racism depended on Justice Clarence Thomas’s personal views about racism, many forms of discrimination would cease to exist legally. If women were denied recourse for pornography in the workplace because some female employees welcomed it, Title VII would collapse.

This is precisely why the Supreme Court requires both a subjective and objective inquiry:

• Did the plaintiff personally experience the conduct as hostile?
• Would a reasonable person with the plaintiff’s characteristics do the same?

The law explicitly does not ask whether other members of the group approve, nor whether the perpetrator belongs to the same group. Oncale made clear that same-sex harassment is just as unlawful as opposite-sex harassment.

Consensus has never been the metric for discrimination. It is not one now.

3. Discriminators Need Not Be Hateful

Antizionists often argue that they cannot be discriminating against Jews because they are not antisemites, have Jewish friends, are themselves Jewish, or do not intend to discriminate.

None of this matters under the law.

In hostile environment cases, the perpetrator’s subjective beliefs or intentions are irrelevant. The question is whether the environment is objectively and subjectively hostile to the victim—not whether the harasser thinks it is.

This is essential. If liability depended on an offender’s self-awareness or declared motives, hostile environment claims would almost never succeed. Countless men who create sexually hostile workplaces are genuinely unaware of the harm they cause. Many sincerely believe they are behaving innocently—offering a compliment, making a joke, or asking a coworker out. But the law does not turn on his perception; it turns on hers, and on how a reasonable person in her position would experience the environment. Courts have long recognized this distinction and built hostile-environment doctrine around it.

The power of hostile environment law is its clarity: the victim’s experience—not the perpetrator’s claimed intentions—determines whether discrimination occurred.

To exempt antizionism because its proponents “don’t mean it that way” would undermine the entire structure of antidiscrimination law.

The Bottom Line

The First Circuit’s reasoning is inconsistent with decades of antidiscrimination jurisprudence. Antizionism fits squarely within established legal definitions of discrimination.

It is political.
It is contested.
It is often unwitting.
And none of that has ever shielded discriminatory conduct from legal scrutiny.

Antizionism is not an abstract ideology floating in academic space. It functions, on campuses and beyond, as a mechanism of marginalization, exclusion, and intimidation directed at Jews by demonizing the Jewish collective. That is discrimination. The law should recognize it.