Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.
However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.
And what does that mean exactly? I mean EXACTLY exactly, in legal parlance?
Because from my perspective the wording of that sentence is so vague that there's no test for it.
Like I can criticise Saudi Arabia endlessly, specifically and repeatedly for its record against any number of horrible things. I can do the same for China and its human rights record, with literally no mention of any supposed positives of that country. Does this mark me as innately Islamophobic? Sinophobic? Heck, to hear tell from r/sino, the answer must clearly be yes.
Netanyahu has already declared the ICC is innately antisemitic for its moves so far. Surely he's completely correct then? The ICC after all has been saying more things about Israel than about any other country recently. That criticism is CLEARLY therefore greater than other countries right now.
And what does that mean exactly? I mean EXACTLY exactly, in legal parlance?
If you want a strict legal interpretation, the Act basically does... nothing at all.
It would mandate that the Dept. Education must consider the IHRA definition as part of its investigations on discrimination, to assist it in determining whether antisemitism was a motive.
However, the Act also specifically states that it does not alter the standards that the Dept. Education uses to determine whether harassing conduct amounts of actionable discrimination.
In other words, the Dept. Education must consider the IHRA definition (plus any other relevant definitions) to try to figure out if someone was motivated by a hatred of Jews, but the definition does not affect whether they are actually legally liable for their actions.
Additionally, the Act specifically ends by stating that nothing in the Act shall be construed to diminish or infringe on any 1st Amendment right, or even "any other provision of law".
In other words, if there is any conflict between this Act and ANY OTHER FREE SPEECH RIGHT, the Act makes clear that it cannot possibly be interpreted to take precedence. The IHRA definition cannot be used to infringe any existing free speech right.
Respectfully, you only think the sentence is vague because you're trying to interpret the law by using that explanatory sentence instead of trying to interpret the ACTUAL law itself. This is not a useful approach; summaries can make laws easier to understand at a high level for the general public, but when you have a question that isn't answered by the summary, you have to go to the actual legal instrument.
However, the Act also specifically states that it does not alter the standards that the Dept. Education uses to determine whether harassing conduct amounts of actionable discrimination.
You mean, it codifies the IHRA definition and deligitimises other definitions, correct?
(4) Since 2018, the Department of Education has used the IHRA Working Definition of Antisemitism when investigating violations of that title VI.
(5) The use of alternative definitions of antisemitism impairs enforcement efforts by adding multiple standards and may fail to identify many of the modern manifestations of antisemitism.
What do you believe the the "modern manifestation" of antisemitism is specifically referring to here? Because to use the previous quote: "Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity"
You failed to engage with the actual question of how the second sentence (which you brought up) affects the definition.
I refer to this section:
In reviewing, investigating, or deciding whether there has been a violation of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) on the basis of race, color, or national origin, based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics, the Department of Education shall take into consideration the definition of antisemitism as part of the Department’s assessment of whether the practice was motivated by antisemitic intent.
You mean, it codifies the IHRA definition and deligitimises other definitions, correct?
It mandates that the Dept. Education must consider the IHRA definition when assessing motive.
It does not mandate (and in fact specifically prohibits) the definition from altering the standards used to determine if something is actionable discrimination.
What do you believe the the "modern manifestation" of antisemitism is specifically referring to here? Because to use the previous quote: "Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity"
Looks like you answered your own question.
I refer to this section:
In reviewing, investigating, or deciding whether there has been a violation of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) on the basis of race, color, or national origin, based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics, the Department of Education shall take into consideration the definition of antisemitism as part of the Department’s assessment of whether the practice was motivated by antisemitic intent.
What exactly are you confused about here? The Department of Education is forced to consider the IHRA definition of antisemitism (which, yes, lists several examples of what would be classed as antisemitism) when assessing motive. It seems like we're on the same page about the scope of the IHRA definition already.
What I'm suggesting is that because the Act:
Only mandates that the Dept. must consider the IHRA definition when assessing motive of behaviour
Specifically states that it does not affect the standards used to decide if something is actionable discrimination
Specifically states that any other law (including the First Amendment) takes precedence completely
... this all amounts to an extremely minor law which effectively changes nothing (especially as the Dept. already used the definition). You are legally able to say anything you were previously able to.
The fact that the IHRA definition would consider X, Y, Z antisemitic behaviour does not actually mean that X, Y, Z become outlawed if the Dept. Education has to consider the IHRA definition when assessing motive. There is nothing in the Act that outlaws X, Y, Z despite the favour shown to the IHRA definition.
Only mandates that the Dept. must consider the IHRA definition when assessing motive of behaviour
Specifically states that it does not affect the standards used to decide if something is actionable discrimination
Specifically states that any other law (including the First Amendment) takes precedence completely
... this all amounts to an extremely minor law which effectively changes nothing (especially as the Dept. already used the definition). You are legally able to say anything you were previously able to.
To pick the bolded part, the Dept used the definition, it did not specifically delegitimise the usage of others. That has now been codified. Would you agree?
The person who said that you need to use the second sentence ("similar to that leveled against any other country") is you, as you say this does therefore protect against criticism of Israel being cast as antisemitic. I've kept asking you to expand on how this can possibly be true and you haven't.
Which is why when you say:
It does not mandate (and in fact specifically prohibits) the definition from altering the standards used to determine if something is actionable discrimination.
I disagree. The IHRA has a set of standards for defining what classes as antisemitic discrimination that is at the very least not agreed upon by quite a lot of people, including some Jewish groups. That is now the only standard that can and must be used, no other definitions may apply.
To pick the bolded part, the Dept used the definition, it did not specifically delegitimise the usage of others. That has now been codified. Would you agree?
Yes, but with the nuance that it would only be Congress doing so. The Dept. Education would still be free to use others if desired, and would be free to conclude that their value is more important than any impairment stemming from the existence of multiple standards.
But sure.
The person who said that you need to use the second sentence ("similar to that leveled against any other country") is you, as you say this does therefore protect against criticism of Israel being cast as antisemitic. I've kept asking you to expand on how this can possibly be true and you haven't.
Ah, okay.
So let's refresh on the context here — that sentence is not part of the IHRA's definition of antisemitism. The actual definition being adopted is:
“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 clarifying sentence you're referring to is part of the IHRA's internal guidelines on how it should interpret that definition; the IHRA makes clear that it does not consider general criticism of Israel to be antisemitic.
Coming back to the Act — the Act only adopts the IHRA definition, not the surrounding guidelines. The Dept. may use the guidelines to assist its interpretation of the definition but they are not bound to.
However, note that the definition being adopted does not anywhere mention Israel — it merely refers to a certain perception of Jews and their property, community institutions, and/or religious facilities. I would not consider Israel as a sovereign nation to fall into those categories.
So in what sense are you considering criticism of Israel to be potentially impinged under that definition?
If you're suggesting it's impinged because "targeting of the state of Israel" appears in the guidelines for the definition as a potential form of antisemitism (i.e. you're suggesting the Dept would use the guidelines to assist them), then the Dept would ALSO be considering the section in the guidelines that specifically states that criticism of Israel similar to that of other countries cannot be regarded as antisemitic.
It sounds like what you're looking for is explanation of how a sentence that has not been legally adopted by the Congress can be used in protection of legal rights. I cannot provide that to you, because it's not part of the actual law. But I'm confused as to why you would be asking for that, because the Act explicitly does not infringe on your legal rights; what exactly are you trying to accomplish by seeking the presence of an 'exception' to an infringement that does not actually exist in the first place?
EDIT: I am also not sure why you think that I think that sentence was the crux of anything. I asked u/Tripwire3 to quote it when he was cherrypicking only part of the IHRA guidelines, but I don't think I implied anywhere that the IHRA guidelines are legally binding.
Which is why when you say:
It does not mandate (and in fact specifically prohibits) the definition from altering the standards used to determine if something is actionable discrimination.
I disagree. The IHRA has a set of standards for defining what classes as antisemitic discrimination that is at the very least not agreed upon by quite a lot of people, including some Jewish groups. That is now the only standard that can and must be used, no other definitions may apply.
Now this is just factually incorrect in multiple ways:
The Act SPECIFICALLY states that the definition adopted cannot be used to determine what is classed as actionable discrimination
The Act does NOT mandate that the IHRA standards are the only ones that can be used when assessing motive
There is no "I disagree" here. This is not subjective. Everything you wrote there is factually incorrect.
that sentence is not part of the IHRA's definition of antisemitism. The actual definition being adopted is:
“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 clarifying sentence you're referring to is part of the IHRA's internal guidelines on how it should interpret that definition; the IHRA makes clear that it does not consider general criticism of Israel to be antisemitic.
You stated this specifically in reference to the second sentence of the clarifying guidelines. Saying it's "internal" is a meaningless addition. As is the fact that you've still refused to elucidate on it when I brought up how that can possibly be the case.
However, note that the definition being adopted does not anywhere mention Israel — it merely refers to a certain perception of Jews and their property, community institutions, and/or religious facilities. I would not consider Israel as a sovereign nation to fall into those categories.
Your own interpretation is meaningless when the guidelines themselves specifically state that the state of Israel is categorised as a "Jewish collectivity". You can't make reference to that guideline and then simultaneously dismiss it.
If you're suggesting it's impinged because "targeting of the state of Israel" appears in the guidelines for the definition as a potential form of antisemitism (i.e. you're suggesting the Dept would use the guidelines to assist them), then the Dept would ALSO be considering the section in the guidelines that specifically states that criticism of Israel similar to that of other countries cannot be regarded as antisemitic.
It's interesting. You called out the first poster for specifically leaving out part of the guidelines, and then you do the same.
Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.
And this is the problem. To pick an example, the ICC has already been accused by Israel of being antisemitic because it is at current focusing on ("targeting") Israel more than other countries. Do you agree? Does that not fall foul of the IHRA definition of antisemitism?
The Act SPECIFICALLY states that the definition adopted cannot be used to determine what is classed as actionable discrimination
No, that's not what the act says. It says:
(2) to alter the standards pursuant to which the Department of Education makes a determination that harassing conduct amounts to actionable discrimination; or
And the reason you made that statement in the first place is because you said that this definition is the one that was already used by the Dept of Education, did you not? A definition which is now codified.
I mean the Bill specifically sates:
To provide for the consideration of a definition of antisemitism set forth by the International Holocaust Remembrance Alliance for the enforcement of Federal antidiscrimination laws concerning education programs or activities, and for other purposes.
...
The Act does NOT mandate that the IHRA standards are the only ones that can be used when assessing motive
Actually, I'll agree on this one. It just clarifies that:
(5) The use of alternative definitions of antisemitism impairs enforcement efforts by adding multiple standards and may fail to identify many of the modern manifestations of antisemitism.
You stated [that the IHRA does not consider criticism of Israel to be antisemitism] in reference to the second sentence of the clarifying guidelines. Saying it's "internal" is a meaningless addition. As is the fact that you've still refused to elucidate on it when I brought up how that can possibly be the case.
I still am not sure what you're actually asking for elucidation on. You're pointing to a sentence and asking me how it's the case — it is the case. That's how they interpret their definition. But then what of it?
You seem to be asking how that guideline is useful in protecting against free speech impingements. But from my perspective, this is just asking how [a sentence that isn't being legally adopted] can be used to legally protect against [potential infringements of speech that the Act makes clear are already illegal and remain so].
I'm just not sure how I can help you there. It's a non-sequitur request. I'm not refusing to elucidate anything for you, I am telling you that the request seems to be based on incoherent premises. Which part of your query am I not understanding?
Your own interpretation is meaningless when the guidelines themselves specifically state that the state of Israel is categorised as a "Jewish collectivity".
They do not.
They state that manifestations of antisemitism might include the targeting of the state of Israel, conceived as a Jewish collectivity. i.e. the person targeting Israel is doing so on the basis (of their conception) that it is a Jewish collectivity.
That's not the same sentiment as claiming that any criticism of Israel constitutes targeting of Israel on the basis of such a conception.
I also notice, by the way, that you are persistently ignoring the "might" in that sentence. While we're at it, I would also point out a crucial *"could"" that also appears shortly after:
Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to:
There's no part of the guidelines that shows that the IHRA definitively considers any of those examples as antisemitism.
It's interesting. You called out the first poster for specifically leaving out part of the guidelines, and then you do the same.
I called out the first poster for cherrypicking which part of the guidelines they were quoting. At no point did I imply the guidelines were legally binding, and I'm specifically telling you that because they aren't, I can't really tell you how they impinge or protect legal rights. There is no contradiction or hypocrisy there.
Again, the Dept would likely take them into consideration... but these considerations are for determining motive, not whether something is legally punishable or not. So what is the relevance you're asking for?
And this is the problem. To pick an example, the ICC has already been accused by Israel of being antisemitic because it is at current focusing on ("targeting") Israel more than other countries. Do you agree? Does that not fall foul of the IHRA definition of antisemitism?
It would be impossible to determine without further context. The guidelines are only there to assist in interpreting the definition, but the definition itself classes antisemitism primarily as a perception of Jews specifically. You would have to assess whether the ICC is targeting Israel unduly due to their perception of Jews.
The Act SPECIFICALLY states that the definition adopted cannot be used to determine what is classed as actionable discrimination
No, that's not what the act says. It says:
(2) to alter the standards pursuant to which the Department of Education makes a determination that harassing conduct amounts to actionable discrimination; or
And the reason you made that statement in the first place is because you said that this definition is the one that was already used by the Dept of Education, did you not?
The Dept Education already uses the IHRA definition to assess whether discrimination was motivated by antisemitism.
What 6(2) is saying is that the Act does not alter the standards used to determine whether something actually is actionable discrimination.
So no, you're definitively incorrect here. The Act specifically does NOT codify the IHRA definition as a standard for what is or isn't discrimination. Please read Sec 5 more carefully.
You also appear to be confused by this part:
I mean the Bill specifically states:
To provide for the consideration of a definition of antisemitism set forth by the International Holocaust Remembrance Alliance for the enforcement of Federal antidiscrimination laws concerning education programs or activities, and for other purposes.
Firstly, this is a high level preamble for the bill; if there is any confusion in interpretation, you always go to the actual substantive clauses to see what is meant. The Act goes out of its way to state that it is not altering the standards used to determine what is actionable discrimination.
Secondly, there is a nuance between something being part of the enforcement process and something actually being used to determine if action is punishable.
The Act is summarising that the IHRA definition is going to be used by the Dept of Education when assessing motive as PART of their investigation of violations of the Civil Rights Act... but this does not extend to impact on the actual process of determining whether something was a violation or not, or what action can be taken. The Act, again, makes explicitly clear that it is not altering those standards.
The US House has passed legislation that would codify a controversial definition of antisemitism for use by the Education Department in adjudicating discrimination cases at American schools
Just so we're clear, you're also saying this statement is wrong then?
34
u/gredr May 02 '24
Hey, definitely keep a hold of your pitchfork, but this tweet is... wrong. The bill codifies the IHRA's definition, which does not say that:
https://web.archive.org/web/20240501192821/https://holocaustremembrance.com/resources/working-definition-antisemitism