Antisemitism and the Law

This course examines how law protects Jews from unlawful discrimination and bias-motivated crime, and where that protection falls short. Students will survey the principal legal regimes relevant to Jewish civil rights, including federal civil rights statutes (Titles VI and VII of the Civil Rights Act of 1964 and 42 U.S.C. §§ 1981–1982), federal and state hate crime laws, and executive and administrative guidance, and will compare these with developments in other jurisdictions, particularly the United Kingdom.

A central aim of the course is to equip students to analyze the conceptual difficulties that arise when anti-discrimination law is applied to Jews: whether Jews are protected as a race, a religion, an ethnicity, or a national-origin group; whether Zionism is part of protected Jewish identity; and whether antizionism is, or can be, a form of unlawful discrimination. Students will evaluate competing legal arguments, weigh them against protections for speech and expression, and assess recent court decisions in the United States and the United Kingdom.

Finally, the course moves from doctrine to strategy. Students will study creative litigation and policy initiatives used to combat antisemitism, including terrorism-financing claims, corporate governance actions, anti-BDS measures, and terrorist designations, and will explore the intersections of Jewish identity with race, sex, religion, and gender. By the end of the course, students should be able to identify the legal tools available to protect Jewish civil rights, critically assess their strengths and limits, and articulate well-reasoned arguments for strengthening them.

Session 1: Mapping the Legal Landscape: Civil Rights Law, Hate Crime Law, and the Problem of Jewish Identity

This session introduces the legal regimes most relevant to protecting Jewish civil rights. Students will survey U.S. civil rights law, including Title VI (federally funded programs, including schools and universities), Title VII (employment), and the Reconstruction-era statutes, 42 U.S.C. §§ 1981 and 1982, as well as federal and state hate crime laws, including the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and the federal prohibition on damaging religious property and obstructing free exercise. We will also introduce the executive and administrative framework, including Executive Order 13899 and Department of Education Office for Civil Rights enforcement on the basis of “shared ancestry.”

The session then turns to the distinctive difficulties of using these laws to protect Jewish victims. Because Title VI does not prohibit religious discrimination, Jewish plaintiffs must often frame their claims in terms of race, ethnicity, or national origin, which raises the questions of whether, and how, Jews are protected under each category. Drawing on Shaare Tefila Congregation v. Cobb, we will consider how courts understand Jewish identity and why that identity does not fit neatly into existing categories. We will close by introducing the question that runs through the rest of the course: whether antizionism is considered discriminatory, and how the answer shapes the availability of legal protection.

Session 2: Arguing for Protection: Zionism, Antizionism, and the Limits of Free Expression

This session examines the legal arguments available for ensuring that Jews receive meaningful protection under anti-discrimination law. We will consider two related approaches. The first treats Zionism, understood as a connection to the Jewish homeland and to Jewish peoplehood, as an integral part of Jewish identity, so that discrimination against Jews because of their Zionism is discrimination against Jews. The second conceptualizes antizionism as an inherently discriminatory ideology, one that singles out and demonizes the Jewish collective. Students will evaluate both approaches in light of the IHRA Working Definition of Antisemitism and recent U.S. campus litigation, including Kestenbaum v. Harvard, where the court allowed Title VI claims to proceed, and StandWithUs v. MIT, where the First Circuit declined to treat anti-Zionist speech as antisemitic harassment.

We will then consider how protections for speech and expression affect these approaches, including the First Amendment limits on harassment law and the standard for institutional liability set out in Davis v. Monroe County Board of Education. Finally, we will analyze the United Kingdom decision in Miller v. University of Bristol, in which the Employment Tribunal held, and the Employment Appeal Tribunal affirmed, that a professor’s anti-Zionist beliefs were a protected “philosophical belief” under the Equality Act 2010. Students will assess the reasoning of that decision, its implications for Jewish students and employees, and what it suggests about the risks of treating antizionism as a protected viewpoint rather than a form of discrimination.

Session 3: Beyond Traditional Civil Rights Claims: Creative Litigation and Policy Initiatives

Traditional civil rights claims are only one tool for protecting Jews. This session surveys creative litigation and policy initiatives designed to combat antisemitism and protect Jewish civil rights. We will examine civil claims under the Anti-Terrorism Act for providing material support to terrorism, including aiding-and-abetting liability after Twitter v. Taamneh and recent suits by October 7 victims against U.S.-based organizations alleged to have supported Hamas. We will also consider corporate governance strategies, including shareholder derivative actions and books-and-records demands that test whether corporate boards are meeting their oversight duties with respect to antisemitism.

The session will also address policy initiatives at the federal and state levels, including efforts to identify organizations such as the Muslim Brotherhood and the Council on American-Islamic Relations (CAIR) as terrorist organizations, and the legal consequences of such designations. Students will study anti-BDS laws and the constitutional challenges to them, along with other legislative and administrative measures. Throughout, we will evaluate the strengths, risks, and constitutional limits of each approach, including concerns about free speech, freedom of association, and due process.

Session 4: Intersections: Race, Sex, Religion, Gender, and Jewish Identity

This session examines how Jewish identity intersects with other protected characteristics, including race, sex, religion, and gender. Beginning with the framework of intersectionality, we will ask how anti-discrimination law handles claims that cut across categories and how those frameworks have been applied, and sometimes withheld, when the victims are Jewish. We will consider how non-Jewish Zionists are protected, including through religious-belief protections and theories of associational discrimination, and what their treatment reveals about whether the law views Zionism as an aspect of Jewish identity or as a political opinion.

We will also consider whether there are similarities between how the law conceptualizes gender and how it conceptualizes Jews: in both cases, the law must grapple with identities that are at once inherited, chosen, experienced, and socially ascribed. Finally, we will address the role that sexual violence against Jews plays in the discrimination and oppression of Jews, both historically and in the aftermath of the sexual violence committed during the October 7, 2023 attacks, and how denial of that violence functions as a form of antisemitism.

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