House Passes Antisemitism Bill

As protests over the Israel-Gaza war spread across college campuses around the country, the House of Representatives passed the Antisemitism Awareness Act of 2023 (H.R. 6090) in a bipartisan vote this week. The bill would require the Department of Education to “take into consideration” the working definition of antisemitism developed by the International Holocaust Remembrance Alliance (IHRA) when the agency is determining whether a violation of Title VI of the Civil Rights Act has occurred.

The new requirements in the bill are substantially similar to an Executive Order (EO) signed by President Trump in 2019. Under that EO, which remains in effect, all federal agencies must “consider” the IHRA definition when enforcing Title VI. As a result, the legislation passed by the House reflects the Department of Education’s current enforcement practices and will not change how the statute is enforced.

Under Title VI, institutions of higher education that receive federal funding are prohibited from discriminating on the basis of race, color, or national origin. The Department has interpreted the prohibition against national origin discrimination to encompass bias based on shared ancestry or ethnic characteristics or citizenship or residency in a country with a dominant religion or distinct religious identity. Title VI is the principal method by which the Department pursues enforcement action against antisemitism on college campuses.

Over the years, critics have objected to the IHRA definition and accompanying examples, contending that the definition and examples could potentially violate First Amendment provisions protecting freedom of speech and academic freedom. However, if such violations were to occur, both the bill and the EO would be susceptible to constitutional challenges. In addition, to address such concerns, the bill language specifies that the legislation must not be construed to infringe on First Amendment rights.