A Missouri law mandating public schools and universities to define antisemitic behavior in their codes of conduct and report those cases to state officials has sparked concerns that it may infringe on First Amendment rights.
House Bill 2061 - Antisemitism in Schools Prohibited - came into effect on August 28.
It requires Missouri public educational institutions to define antisemitism using the International Holocaust Remembrance Alliance (IHRA) Working Definition, including its contemporary examples.
It mandates that educational institutions treat antisemitic harassment or discrimination against students or employees “in an identical manner to discrimination motivated by race.”
Schools and other educational institutions must have a policy defining antisemitism and include it in their codes of conduct for students, faculty, and staff.
Schools must include rules against antisemitism in staff codes of conduct
They must also prohibit antisemitic behavior when it interferes with people’s ability to work, study, visit, or use the school’s facilities, or when it creates an environment of fear or intimidation.
Additionally, regarding defining antisemitism, schools must include rules against antisemitic behavior in their student, faculty, and staff codes of conduct.
They must include consequences for harassing or discriminating against Jewish people, in line with federal anti-discrimination rules under Title VI of the Civil Rights Act.
Before it passed, the bill was changed significantly. Now it only applies in the context of harassment or intimidation and includes the provision that it cannot be “applied in ways that diminish or infringe any right protected under the First Amendment.”
It also includes a specific clause saying that “criticism of Israel that is similar to criticism toward any other country shall not be construed to be antisemitic.”
In order to determine whether speech relating to criticism of Israel is antisemitic, educational institutions are asked to consider whether the speech is explicitly related to public policy or applies “materially inconsistent standards, expectations, or condemnation to Israel as compared with other nations in comparable circumstances.”
The provision only applies when the speech or related conduct also interferes with people’s ability to participate in school activities or creates fear or intimidation.
The law is not new as such; it simply amends the existing state legislation.
The Missouri legislature says that everyone is entitled to equal treatment and equal rights under both the Missouri and US constitutions, and condemns discrimination of any kind.
Antisemitism recognized as a form of discrimination
The new law simply recognizes antisemitism as a form of discrimination.
Does it protect criticism of Israel?
Nevertheless, there has been criticism and concern about whether the new law will infringe upon the right to protest.
Attorney Javad Khazaeli of the law firm Khazaeli Wyrsch told St. Louis Public Radio that “the whole point of this - this is to chill speech.”
“You could come up with absurd outcomes where a Jewish student who criticizes Israel could be deemed antisemitic, and then their university could possibly lose funding over this,” he said.
Attorney Brenda Talent said she is concerned that educational institutions are “going to develop codes of conduct that go too far - that in fact do violate the First Amendment.”
Michael Berg, a St. Louis member of Jewish Voice for Peace, said, “We’re talking about codifying into law a definition of antisemitism which would restrict and punish accurate and necessary criticisms of Israel.
“It’s an attack on the ability to say things that are objectively true.”
When questioned by the St. Louis Post-Dispatch, the sponsor of the law, Rep. George Hruza, said that calling Israel genocidal would count as antisemitic under the law.
“Calling Israel’s actions in Gaza ‘genocide’ does not comport with the situation on the ground, or it is some kind of twisted definition of genocide.
“No other country would be accused of genocide for fighting a defensive war after an unprovoked attack and bending over backward to minimize civilian casualties, only Israel,” he said.
However, Hruza said that such speech, if not used to harm or create fear, would still be protected. The same would be the case for comparing Israeli policy to that of the Nazis.
“HB 2061 explicitly protects free speech, including such abhorrent antisemitic speech. It is when the speech causes harm to others through harassment, intimidation, bullying, or an atmosphere of fear that it becomes an issue for schools to address.
“Free speech ends at the end of one’s nose. When it causes harm to others, it is no longer protected speech.”