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Two Steps Back: How HR 35 Fails to Protect California Students

[Jewish students protesting Israeli policy at UC Santa Cruz. Image from] [Jewish students protesting Israeli policy at UC Santa Cruz. Image from]

In August 2012, the California State Assembly passed House Resolution 35 (HR35). Although it is non-binding and carries no immediate legal implications, the resolution seeks to address anti-Semitism on University of California and California State University campuses by encouraging administrators to take greater initiative, including actions against students and faculty who express critical views of Israel. 

Representatives passed the resolution in response to an increase in the severity and frequency of anti-Semitic activities and discourses around the world. HR 35 encourages university administrators to increase “their efforts to swiftly and unequivocally condemn acts of anti-Semitism on their campuses and… to help guide campus discussion about, and promote, as appropriate, educational programs for combating anti-Semitism.” The resolution also commends steps already taken, including the formation of University of California’s Advisory Council on Campus Climate, Culture, and Inclusion, a body that has conducted “[i]n-depth visits with Jewish students and groups on UC campuses to better understand their concerns.”

However, among the ways the resolution seeks to protect Jewish students is to limit criticism of Israeli government policy, placing the resolution in the center of debates about what actually constitutes anti-Semitism, the limits of free speech and the boundaries of academic freedom. Utilizing the European Union Agency for Fundamental Rights' working definition of anti-Semitism as a starting point, the resolution encourages stronger university policies prohibiting anti-Semitic conduct on campus, but does so in a way that infringes upon student rights of free speech and peaceful political action. For example, the assembly commended UC President Mark Yudof and the Board of Regents for their refusal to sponsor Boycott, Divestment and Sanctions campaigns that ”seek to harm the Jewish state.”

After the quick passage of HR35, we witnessed many reactions. Mainly, news of the resolution was followed with a backlash from stakeholders.  Californian Scholars for Academic Freedom wrote an open letter calling the resolution a “clear threat to academic freedom” and a “call upon university administrators to deny First Amendment rights to students and faculty.” The counter-resolution from the University of California Student Association and from student groups also called to protect free speech. Ultimately, the counter-narrative argued that HR35 silenced voices critical of Israeli government policies. While the resolution states that the university leadership should protect free speech, it simultaneously and paradoxically attacked free speech of critics of Israeli policies.

Not only does the resolution stand to stifle free speech, but it also fails to effectively combat anti-Semitism and discrimination in the academic setting. The report’s primary concern – the protection of Jewish students – neglects the majority of student experiences, including those of non-Jews, but also the experiences of Jewish students who do not consider themselves supporters of Israel. As such, the presumably well-intentioned resolution falls short of a constructive contribution to the effort of protecting the academic experience.

The resolution fails to advocate for the protection of Jewish students from anti-Semitic attacks because it lacks an understanding of nuances in the evolving and multi-faceted definition of anti-Semitism. If anything, the resolution strengthened a particular logic that has long underpinned anti-Semitic rhetoric, and indeed the kind of logic that lends itself to xenophobia and prejudice towards any racial, national, ethnic or religious group. The notion is that individuals can or should be associated with the acts of third parties belonging to the same ethnic or religious group. This logic is evident in the resolution’s insistence that a critique of Israel or Israeli policy can be read as a critique of Jews as a whole. 

The resolution perpetuates the problem of anti-Semitism because it conflates Israel and Jewish identity. The authors of the resolution did not create this problematic conflation. For example, Meet the Press host David Gregory recently introduced his guest, Benjamin Netanyahu, as “leader of the Jewish people.” This misnomer went uncorrected by the Israeli Prime Minister. Gregory later clarified himself on Twitter, saying, “Better to say he’s leader of Jewish state.” But Gregory’s misstep and Netanyahu’s silence illustrate a perception that is both common and deliberate: the synonymy of the terms Jewish, Israeli, and Zionist. That Israel has come to represent world Jewry in the minds of many who oppose Israeli policy is therefore not just the result of anti-Semitism, but also a product of Jewish nationalistic rhetoric since the early 20th century.

The resolution references multiple sources to make its case for the need to curb anti-Semitism on campus, one being the United States Commission on Civil Rights (USCCR) report on civil rights regarding anti-Semitism on campus. The report states that “while incidents of threatened bodily injury, physical intimidation, or property damage are now rare, they have been alleged on some campuses,” which contradicts the resolution’s stated claim that the “frequency and severity of incidents of contemporary global anti-Semitism are increasing.”

The USCCR continues,

On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.

USCCR’s recommendation to “distinguish [anti-Semitism] from legitimate discourse regarding foreign policy” and to recognize when anti-Semitism is “camouflaged” demonstrates the nuance and complexity behind anti-Semitism in political and academic discourse. The resolution coauthors fail to grasp this, seemingly placing much of the legitimate and common critique surrounding Israel into the same category as swastika graffiti. 

HR 35 also called upon university leadership to “utilize existing resources, such as the European Union Agency for Fundamental Rights’ working definition of anti-Semitism.” Here, anti-Semitism is defined as

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

The definition is vague, but proposes that anti-Semitism is holding all Jews collectively accountable for perceived transgressions. However, the EU also provides some commentary to elaborate on the definition and this commentary seems to complicate their original proposal. “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor” is also included as an anti-Semitic act.  Here, the implication is that Jews everywhere are collectively victimized by a particular kind of critique of Israel. This is no more than “normative” anti-Semitism – blaming the Jews of the world for the perceived or real wrongdoing of a small number of Jews - turned upside down. This logic borrows the basic assumptions underpinning anti-Semitic rhetoric. However, the authors of HR 35 take this paradoxical understanding of anti-Semitism even further. The resolution’s definition outlines the ways in which anti-Semitism can include criticism of Israeli policy – such as comparing Israel to Apartheid South Africa, comparing Israeli actions to those of the Nazis, etc. This interpretation is a departure from the EU definition, which differentiates between anti-Semitism and comparison with the Nazi regime as well as criticism that can be applied to other countries. The EU also states, “criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic.”

It seems, then, that the referenced definition of anti-Semitism would not include protest against Israeli policy were the critique also to be equally applied to other countries. And yet, as California university students take part in legitimate forms of protest, such as a call for divestment from Caterpillar, the manufacturer of bulldozers used to level Palestinian homes, this resolution places these students’ actions in the realm of anti-Semitism. 

All of this is not to say that criticism of Israel is free of racist prejudice against Jews. Indeed, one of the oldest and most recognized forms of anti-Semitism is the accusation of dual loyalty. Certainly, HR35 could address this form of anti-Semitism without silencing more focused critiques of Israel’s policy. Since the assembly lacked the understanding and ability to differentiate between anti-Semitism and anti-Zionism when Israel is the subject of speech, it has politicized an attempt to curb discrimination on campus and therefore jeopardized future actions by university leadership and future claims of anti-Semitism.

Not only does the resolution fail to reflect the depth of discourse on anti-Semitism, it also serves to label some Jews as anti-Semitic. This, again, is nothing new in the history of Jewish identity politics across the world.  Ironically, many of the early Jewish nationalists accused their anti- and non-Zionist Jewish opponents of holding similar beliefs to their anti-Semitic contemporaries. The legacies of these early debates clearly still echo in today’s political and social contexts. Further, the resolution’s modified definition of anti-Semitism seemingly incorporates particular policies and political interests. Politicizing the issue in this way has made the resolution a missed opportunity to protect students and advocate for a comprehensive relationship between university leadership and the student they serve. 

Universities should be havens for the exchange and debate about ideas and politics, where students, faculty, and the community can experiment with ideas and refine their personal convictions. Naturally, there will be conflict, but academia should be the safest place to engage in these complex and emotional issues. HR35 takes as its intention “to make their campuses safer and more inclusive of diverse students, faculty, and staff,” a critical and noble mission. Yet HR 35 falls woefully short of this task in its limited understanding of anti-Semitism and its failure to extend similar “protections” to students of other identity groups.

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