[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




                               before the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                            NOVEMBER 7, 2017


                           Serial No. 115-45


         Printed for the use of the Committee on the Judiciary    

        Available via the World Wide Web: http://www.govinfo.gov

 32-325                 WASHINGTON : 2018             

                          COMMITTEE MEMBERSHIP
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                            C O N T E N T S


                            NOVEMBER 7, 2017
                           OPENING STATEMENTS

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     3
The Honorable John Conyers, Jr., Michigan, Ranking Member, 
  Committee on the Judiciary.....................................     4


Rabbi Baker, Director, International Jewish Affairs, American 
  Jewish Committee
    Oral Statement...............................................     6
Dr. Pamela Nadell, Patrick Clendenen Chair in Women's and Gender 
  History, President, Association for Jewish Studies, American 
    Oral Statement...............................................     8
Rabbi Cooper, Associate Dean, Director Global Social Action 
  Agenda, Simon Wiesenthal Center
    Oral Statement...............................................     9
Dr. Barry Trachtenberg, Rubin Presidential Chair of Jewish 
  History, Director, Jewish Studies Program, Wake Forest 
    Oral Statement...............................................    11
Paul Clement, Partner, Kirkland & Ellis LLP
    Oral Statement...............................................    13
Sandra Hagee Parker, Chairwoman, Christians United for Israel 
  Action Fund
    Oral Statement...............................................    15
Jonathan Greenblatt, CEO and National Director, Anti-Defamation 
    Oral Statement...............................................    16
Suzanne Nossel, Executive Director, PEN America
    Oral Statement...............................................    18
Ken Stern, Executive Director, Justus & Karin Rosenberg 
    Oral Statement...............................................    20



                       TUESDAY, NOVEMBER 7, 2017

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The committee met, pursuant to call, at 10:00 a.m., in Room 
2141, Rayburn House Office Building, Hon. Bob Goodlatte 
[chairman of the committee] presiding.
    Present: Representatives Goodlatte, Sensenbrenner, Chabot, 
Issa, Franks, Gohmert, Jordan, Poe, Marino, Collins, DeSantis, 
Buck, Ratcliffe, Gaetz, Biggs, Rutherford, Handel, Conyers, 
Nadler, Jackson Lee, Deutch, Cicilline, Raskin, and Schneider.
    Staff Present: Shelley Husband, Staff Director; Branden 
Ritchie, Deputy Staff Director; Zach Somers, Parliamentarian 
and General Counsel; Paul Taylor, Chief Counsel, Subcommittee 
on the Constitution and Civil Justice; James Park, Minority 
Chief Counsel, Subcommittee on the Constitution and Civil 
Justice; and Veronica Eligan, Minority Professional Staff 
    Chairman Goodlatte. Good morning, the Judiciary Committee 
will come to order and, without objection, the chair is 
authorized to declare recesses of the committee at any time. We 
welcome everyone to this morning's hearing on Examining Anti-
Semitism on College Campuses.
    Before I give my opening statement and before Mr. Conyers 
gives his, I am going to yield to him, so he can say a word 
about the tragedy that occurred in Texas over the weekend. The 
gentleman is recognized.
    Mr. Conyers. Top of the morning and I thank you, Mr. 
Chairman. Welcome all nine witnesses, all-time hearing. And the 
distinguished gentleman from Wisconsin, Mr. Sensenbrenner. Let 
me just say, briefly, that before discussing the important 
topic of today's hearing, I want to raise another issue that we 
must, unfortunately, confront with urgency.
    On Sunday, a gunman shot and killed 26 churchgoers in 
Sutherland Springs, Texas. We now know that information 
concerning his court martial for domestic abuse should have 
been submitted by the Air Force to the National Instant 
Criminal Background System. He should have been prevented from 
purchasing firearms from licensed gun dealers via the Brady 
background check system.
    Yesterday, before this information came to light, I wrote 
to you, Mr. Chairman, requesting that the briefing planned for 
our members tomorrow afternoon by ATF on the issue of bump 
stocks be expanded to include the FBI to discuss the background 
check issues related to Sutherland Springs, and that the 
briefing be conducted as a formal hearing open to the public.
    Now that we have even more information that there has been 
a breakdown in the implementation of our background check 
system, I ask respectfully that we include relevant officials 
from the Department of Defense and the Air Force. And I 
believe, as I think you do too, we should proceed quickly to 
learn what happened and the public deserves to hear answers 
    Therefore, sir, I renew my request and expand it concerning 
tomorrow's briefing, and I thank you for this opportunity.
    Chairman Goodlatte. If the gentleman will yield?
    Mr. Conyers. With pleasure.
    Chairman Goodlatte. I thank the gentleman for his comment 
and I share his concern about having an effective NICS system 
and that data about domestic violence go into that system, 
including data that may be developed as a part of our military 
tribunal system. Therefore, we will look into a briefing on 
that subject. Whether it can be accommodated quickly enough to 
be done tomorrow or not we will have to see. But my plan is to 
proceed with the briefing by the ATF.
    If we cannot incorporate the other into that briefing, we 
will do it another time and we will certainly take under 
advisement your request that there be a public hearing. I think 
that it is important that we get as much information to be as 
informed as possible and that is where we stand right now.
    Mr. Conyers. I thank you for your interest.
    Mr. Sensenbrenner. Will the gentleman yield?
    Mr. Conyers. Yes, sir.
    Mr. Sensenbrenner. I thank the gentleman from Michigan for 
yielding. I was the one who was insistent in putting the 
instant check system and the Brady Bill, which was passed and 
signed by President Clinton in 1993. And, at that time the 
legislation was drafted, I made the point that the National 
Instant Check System would only be as good as the data that was 
put in to it.
    And it took about 5 years to appropriately automate and 
input records, not only for felony convictions, mental 
incompetency adjudications, as well as, domestic violence legal 
action. And, you know, we found that one State kept all of 
these records in boxes of 3-by-5 cards located in every county 
courthouse. That took a while to, you know, finally automate 
    So, you know, I do not think we can blame the law for the 
failure of these, the transaction of the shooter to be 
identified and the sale being denied. I do not think we can 
blame the system which we set up almost 25 years ago because 
the system has worked in hundreds of thousands of cases.
    I think we have to blame the Air Force for not doing what 
was necessary to let the system be able to identify this 
gentleman when he came and purchased the firearms that he ended 
up using in a truly horrific killing.
    Particularly, as people were in church trying to, you know, 
express their freedom of religion and worship God by their own 
    So I think we have to identify, you know, why this failure 
was. And it is not just the Air Force; it could be any clerk of 
court anywhere in the country that could have done that. And I 
think this has got to be a lesson that when you have got 
something that is disqualifying that has been adjudicated by 
the court, get it into the system and get it into the system 
right away. I thank you gentlemen for yielding.
    Mr. Conyers. I thank you both.
    Chairman Goodlatte. I thank you gentlemen. I thank both Mr. 
Conyers and Mr. Sensenbrenner for their observations. I want to 
return to focus on the important matter that is before us 
today. But we will proceed with a briefing tomorrow and we will 
add additional information or a separate briefing depending on 
what time allows.
    Mr. Conyers. Thank you.
    Chairman Goodlatte. I now recognize myself for the purpose 
of an opening statement.
    Racism, sexism, and anti-Semitism among other forms of 
animus are abhorrent whenever they appear, including on 
America's college campuses. While our Federal civil rights laws 
have long addressed discrimination based on race, sex, and 
ethnicity, a debate is ongoing whether anti-Semitism on college 
campuses warrants a unique response compared to how harassment 
based on race or sex, for example, is addressed. This hearing 
will examine that question among others.
    There is widespread bipartisan condemnation of anti-
Semitism, which I have said is abhorrent and does not reflect 
core American values of equality and religious freedom.
    I am also concerned about the so-called, BDS Movement. An 
effort that through boycott, divestment, and sanctions seeks to 
end international support for Israel. It took just 11 minutes 
for the United States to recognize Israel after it formally 
declared independence in 1948. And ever since then, the United 
States and Israel have had a strong relationship based on 
shared democratic values and common security interests. I will 
do everything I can to ensure that relationship remains strong. 
There are those who disagree in various ways, of course, 
including student faculty and administrators on college 
    I will also do everything I can to ensure their right to 
speak is protected under both the First Amendment to the United 
States Constitution and free speech principals generally. It is 
in that spirit in welcoming all perspectives that I have 
convened this hearing today.
    When do speakers, scholarship or student protesters that 
are harshly critical of Israel constitute anti-Semitism? What 
is the nature of anti-Semitism on college campuses today? Has 
the Department of Education in the past or today adequately 
examined allegations of anti-Semitism on college campuses?
    How does existing law address harassment based on anti-
Semitism? What impact would some other approaches have on 
freedom of speech, student relations, and academic freedom? And 
what precedents would they set, good or bad? Those are just 
some of the questions I look forward to discussing with today's 
witnesses. It is now my pleasure to recognize a ranking member 
of the Judiciary Committee, the gentleman from Michigan, Mr. 
Conyers for his opening statement.
    Mr. Conyers. Thank you, Mr. Chairman. I welcome the 
witnesses and I wanted to mention that today's hearing on 
Examining Anti-Semitism on College Campuses is apparent of a 
continuing discussion that our Judiciary Committee has had on 
the confluence of our twin interests: protecting equality of 
opportunity and freedom of speech in institutions of higher 
    Our particular focus today is on anti-Semitism, one of the 
most ancient forms of prejudice that, unfortunately, not only 
continues to exist, but in some places, has even seen 
resurgence in recent years. As we hear from our distinguished 
panel of witnesses, I would like for us to keep several points 
in mind for context.
    To begin with, anti-Semitism on college and university 
campuses, like other forms of invidious discrimination against 
students, remains a very real concern. According to the Anti-
Defamation League, as of September 30th, anti-Semitic incidents 
increased by 67 percent in 2017 compared to the same period 
last year. And there was a significant surge in these incidents 
after white supremacists marched in Charlottesville, Virginia 
last August during which some of those marchers shouted, ``Jews 
will not replace us.''
    Additionally, the league reported a disturbingly high 
number of anti-Semitic bullying and vandalism incidents in K 
through 12 schools and college campuses across the United 
States. In recent years, other reported incidents included the 
vandalism of campus property with swastikas and the passing out 
or posting of leaflets with white supremacists and anti-Semitic 
content on campuses.
    In light of the foregoing, I wholeheartedly support the 
Department of Education 2010 guidance interpreting title VI of 
the Civil Rights Act of 1964 so as to protect Jewish students 
and other religious minorities from discrimination. This 
guidance rightly clarified that while title VI, which prohibits 
discrimination on the basis of race, color, or national origin 
in programs that receive Federal funding, does not included 
religion as a protected characteristic. It does prohibit 
discrimination against members of religious minorities if it is 
based on an actual or perceived, shared ancestry or ethnicity.
    Although this guidance dates from the Obama administration, 
the Trump administration so far seems inclined not to change 
this interpretation. And I would encourage the current 
administration to continue to keep it in effect.
    Finally, while we must ensure a campus learning environment 
free from discrimination, we must also be careful not to stifle 
legitimate, if hard edged and even offensive, political debate 
on controversial topics. The vigilant protection of the right 
to free speech is a fundamental hallmark of a democracy and of 
academic freedom. Indeed, other than in the context of speech 
that amounts to objectively severe or pervasive harassment and 
in a few other limited circumstances, the remedy for bad speech 
is more speech. Equality and free speech are not and must not 
be pitted against each other as if they were opposing values. 
Both values are essential to our democracy and to ensuring a 
free society.
    And in closing, I thank the chairman for holding this 
important hearing, and I look forward to the testimony of our 
esteemed witnesses. Thank you.
    Chairman Goodlatte. Thank you, Mr. Conyers. We welcome our 
distinguished witnesses. And if you all would please rise, I 
will begin by swearing all of you in. Please raise your right 
hand. Do you solemnly swear that the testimony that you are 
about to give shall be the truth the whole truth and nothing 
but the truth so help you God? Thank you.
    Let the record show that the witnesses answered in the 
affirmative, and please be seated.
    This is a wonderfully distinguished panel. All of you have 
excellent professional and academic credentials. You might not 
be surprised to learn that because there are nine of you, I am 
not going to give all of those details about each of you. So, 
these introductions are on the brief side. But they are, 
nonetheless, important.
    Our first witness is Rabbi Andrew Baker. Director of 
International Jewish Affairs at the American Jewish Committee. 
Our second witness is Pamela Nadell, Director of Jewish Studies 
Program at American University. Our third witness is Rabbi 
Abraham Cooper, the Associate Dean and Director of the Global 
Social Action Agenda of the Simon Wiesenthal Center.
    Our fourth witness is Barry Trachtenberg, the Michael R. 
and Debra K. Rubin Presidential Chair of Jewish History at Wake 
Forest University. Our fifth witness is Paul Clement, a partner 
at Kirkland and Ellis, LLP. Our sixth witness is Sandra Hagee 
Parker, Chairwoman of the Christians United for Israel Action 
    Our seventh witness is Jonathan Greenblatt, the CEO and 
National Director of the Anti-Defamation League. Our eighth 
witness is Suzanne Nossel, the Executive Director of Pen 
America. And our ninth witness is Ken Stern, the Executive 
Director of the Justice and Karen Rosenberg Foundation.
    Welcome to all of you. Your written statements will be 
entered into the record in their entirety and we ask that you 
summarize your testimony in 5 minutes. To help you stay within 
that time there is a timing light on your table. When the light 
switches from green to yellow, you have 1 minute to conclude 
your testimony. When the light turns red, that is it. Time is 
up. And it signals your 5 minutes have expired.
    Rabbi Baker, welcome. You can begin.



    Rabbi Baker. Thank you, Mr. Chairman, Ranking Member 
Conyers. In my work at AJC and at the OSCE, I have focused on 
Europe and the problem of anti-Semitism there. While the number 
of incidents and their severity are much greater than here in 
America, there are important parallels that have bearing on 
addressing anti-Semitism in this country, and in particular, 
with the situation on our college campuses.
    This has much to do with the essential first step of 
understanding the nature of anti-Semitism and the importance of 
defining it. Fifteen years ago, we saw a surge in incidents. We 
also saw a new form of anti-Semitism whereby the State of 
Israel was demonized, where its basic existence was being 
challenged. This affected the lives of European Jews 
themselves. They were frequently conflated with Israel and 
subject to verbal and physical attacks as a result. Merely 
giving voice to their own pro-Israel views could subject them 
to social intimidation and personal harassment.
    In 2004, the European Monitoring Centre, The EUMC conducted 
its own survey on anti-Semitism, collecting and evaluating data 
and conducting personal interviews with Jewish leaders. At the 
time, few countries bothered to identify hate crimes, let alone 
specify those that were anti-Semitic. A majority of the EUMC's 
own monitors did not even have a definition of anti-Semitism to 
guide them.
    Meanwhile, the personal interviews and the study revealed 
the level of anxiety and uncertainty that had not been seen in 
decades. The EUMC acknowledged the need for a clear, 
comprehensive, and uniform definition to strengthen the work of 
its monitors. Help governments in understanding and responding 
to the problem and to make sense of the pessimistic predictions 
of the Jewish leaders surveyed.
    In the fall of 2004, the EUMC director invited me to 
present her with a definition of anti-Semitism. We began with 
the contributions of academic experts in the field, they were 
shared with other scholars and practitioners around the world, 
until a final draft document achieved consensus. It was my 
responsibility to negotiate agreement on a final version with 
the EUMC.
    And so, in March 2005, it issued what has come to be known 
as the working definition of anti-Semitism. A core paragraph 
with examples. And let us also be clear: the purpose of this 
definition and of the EUMC itself was not just to assist 
monitors in filing reports, it was to make a difference in the 
day-to-day safety and security of Jews and of all Europeans, to 
increase understanding to raise awareness. Yes, to be used by 
civil society and government monitors, but also by law 
enforcement, by justice officials, and educators.
    References to anti-Semitism with regard to the State of 
Israel were both the most important and the most controversial 
in this definition. Anti-Israel animus was behind many of the 
physical attacks on Jewish targets. Even as government 
authorities frequently dismissed them as political acts, the 
extreme verbal attacks had their own corrosive impact on Jewish 
community security.
    The examples were designed to bring clarity to this new 
form of anti-Semitism. For those who feared it could inhibit 
critical debate, the definition also stated one should take 
into account the overall context and also that criticism of 
Israel similar to that level against other countries cannot be 
regarded as anti-Semitic.
    Over a decade has passed since this definition is issued 
and we can see why using it can become valuable. Demonstrations 
in some European cities started as anti-Israel and became anti-
Semitic. Police need to be prepared for this. So, the 
definition is part of police cadet training in the UK and it is 
now included in a newly published OSCE guideline on Jewish 
community security.
    An arson attack in a synagogue in Germany was determined 
not to be anti-Semitic because of the political views and 
religious affiliation of the attacker. In Austria a call to 
kill Jews was deemed not anti-Semitic for the same reason. 
Thus, the Austrian and German ministers of justice include the 
definition in training police and prosecutors and judges.
    In May 2016, IHRA, the International Holocaust Remembrance 
Alliance adopted the definition. It has since been adopted by 
the governments of the UK, Romania, Austria, Germany, and 
Bulgaria. Earlier this year, it was recommended for use by the 
European Parliament and the OSCE Parliamentary Assembly.
    The U.S. Government has its own record of use. The global 
Anti-Semitism Review Act of 2004 called on the State Department 
to appoint a special envoy and stated that anti-Semitism has, 
at times, taken the form of vilification of Zionism, the Jewish 
National Movement, and incitement against Israel. It called on 
State to report on acts of anti-Semitism around the world. In 
that report and in a subsequent one, the working definition was 
employed. I am an advocate for using it if we are to be 
successful in combating anti-Semitism, we must first understand 
it. We must define it.
    Some said it would be used to stifle criticism of Israel, 
but there is ample evidence in Europe that public criticism of 
Israel is even more vocal than a decade ago. But there is also 
a recognition of the very real problem of anti-Semitism as it 
relates to Israel and the dangers it poses to the Jewish 
community. This ought to be instructive when addressing anti-
Semitism as it appears on college campuses.
    Finally, in the OSCE I am often joined by colleagues whose 
mandates cover other forms of intolerance against Muslims, 
Roma, Christians. Some people said adopting a definition of 
anti-Semitism would lead to demands of other definitions. But 
that has not happened. Those problems are no less serious than 
anti-Semitism and the need for governments to address them is 
every bit as critical.
    Chairman Goodlatte. Rabbi Baker, your time has expired.
    Rabbi Baker. Thank you.
    Chairman Goodlatte. If you could sum up in a sentence?
    Rabbi Baker. My last sentence, even though the 
representatives of vulnerable groups are not saying they need a 
definition, unlike anti-Semitism, those other forms of 
prejudice are easy to recognize it is sadder still that they 
are so prevalent. Thank you.
    Chairman Goodlatte. Dr. Nadell. Am I pronouncing that 
correctly? Thank you. Welcome.


    Ms. Nadell. Thank you. There, got it. Thank you. Thank you, 
Mr. Chairman, ranking member, and distinguished members of this 
committee for inviting me today.
    As a scholar of American Jewish History and also as 
President of the Association for Jewish Studies the learned 
society for scholars in my field, I know that our countries 
encounter with anti-Semitism began in 1654 when 23 Jews landed 
in New Amsterdam and its governor tried to expel what he called 
this deceitful race of hateful enemies and blasphemers. Had he 
succeeded, perhaps we would not be here this morning.
    But he failed, and since then Jewish immigrants have come 
to America from around the world and called our Nation home. As 
citizens, American Jews enjoy the same right to freedom of 
speech that allows others to voice their contempt for the 
Jewish people and the Jewish religion.
    Anti-Semitism, a malevolent ideology has waxed and waned 
across the landscape of American History. The political moment, 
economic dislocations, social forces, the movies in their 
heyday, and social media in ours set its volume control. We are 
all, by all accounts, sadly, at one of those moments where the 
volume on anti-Semitism in American life is turned way up.
    When violent protestors chant, `Jews will not replace us,' 
American Jews are rightly fearful. The hard evidence about the 
rising numbers of anti-Semitic incidents is indisputable. But 
today's hearing is about the climate of anti-Semitism on 
campus. And it was triggered by those who have pointed to our 
colleges and universities as `hot spots of anti-Semitism and 
anti-Israel bias.'
    Are campuses really hot beds of anti-Semitism? Or, are they 
places where Jews, one minority among many, meet from time to 
time, stupidity, insensitivity, and prejudice? Is anti-Semitism 
so pervasive on the campus that it has created a hostile 
climate for Jews?
    Social scientists find that when Jewish students are handed 
a list of anti-Semitic statements, nearly three quarters 
confess that they were exposed to at least one of those 
statements in the past year. But the same students do not 
characterize their campuses as anti-Semitic.
    Instead, they report that they feel safe there. When they 
do experience discomfort as Jews, they trace it to the 
stridency of both sides of the Israel-Palestine debate. While 
that debate can devolve into anti-Semitism, such political 
speech is not ipso facto anti-Semitic.
    Students say that anti-Semitic expression comes mostly from 
their peers, not from their professors or the administration. 
One study even recognizes that we have, `more noise than 
accurate information about what is really happening on campus 
around anti-Semitism.' Students surveyed are smart. They 
recognize that anti-Semitism is a significant problem in 
American society, but they do not characterize their campuses 
as anti-Semitic.
    The research confirms my own impressions and also what I 
hear from my Association for Jewish Studies, colleagues 
teaching around the country. Unquestionably, there are 
explosive incidents. `Death to Israel and to all Jews' posted 
on a Jewish student organizations Facebook page. But deplorable 
incidents do not prove that the campus is ripe with anti-
    You may have heard that recently on my own campus 
Confederate flags affixed with cotton stems were posted on 
bulletin boards just as we were launching our new Antiracist 
Research and Policy Center. But you may not know that many of 
those flags were affixed to the bulletin board of the Center 
for Israel Studies.
    When such revolting racist incidents occur, the response 
from the university leaders is forceful and swift. We hold 
townhalls. We issue statements of condemnation. We offer 
students counseling and opportunities for healing. We launch 
investigations. Perhaps there are campuses where administrators 
respond differently to such events. But I believe them to be 
the exception.
    Are anti-Semites targeting the college campus? 
Unfortunately, yes. Do Jewish students encounter anti-Semitism 
there? Sadly, yes. Is anti-Semitism act the epicenter of campus 
intolerance as one report claims? Has it created a climate of 
fear that impinges upon Jewish student's ability to learn and 
experience college life to the fullest? My impression, just by 
social science research and my Jewish studies colleagues an 
unequivocal, no. Thank you.
    Chairman Goodlatte. Thank you, Rabbi Cooper, welcome.


    Rabbi Cooper. Thank you, Mr. Chairman; Mr. Conyers, good to 
see you. Distinguished members.
    In the past several years, Jewish students on certain 
college campuses, not all, but a large number have been 
subjected to unprecedented levels of anti-Jewish sentiment, 
leading many to feel uncomfortable participating in Jewish 
campus life or other campus activities whose participants are 
especially hostile to Jewish students.
    Jewish students often cannot table their organizations at 
student event fairs without being physically surrounded and 
shouted down by extremist anti-Semitic campus organization. 
They cannot bring speakers to school like every other student 
group and gender and racial and ethnic group can, because the 
speakers have and will be heckled into silence.
    They are often reluctant to run for student government at 
some schools because they have seen the numerous times in just 
the past few years that Jewish students have been called out 
because they are Jews and often excluded from student 
government expressly due to their involvement in Jewish life on 
    These incidents of hate and intimidation are widespread and 
impacts on campuses with large and small constituencies. They 
impact on Jewish support groups like Hillel and Jewish 
fraternity member of AEPi. This even led the Simon Wiesenthal 
Center to create an app, CombatHateU, to ensure individual 
students they can report these incidents immediately and they 
are not alone.
    Mr. Chairman, we are here today seeking the committee's 
help because too often university administrators have been 
tolerating a level of harassment and intimidation of Jewish 
students that they would never dream of allowing against other 
demographic groups because they know, until now, there are no 
consequences. The Department of Education does not protect 
Jewish students the same way that it protects other groups.
    The failure of schools and Federal Government to protect 
Jewish students on campus from harassment is one of the most 
pressing issues for the American Jewish Community. That is why 
the Simon Wiesenthal Center and every mainstream, credible 
Jewish organization in the Nation, some of whom are here today 
came together last year to demand equal protection under the 
law for Jewish students. And as you know, that is why the 
Senate passed the bill unanimously.
    Mr. Chairman, I brought a few recent illustrations. This 
one posted by a professor at Rutgers University. Others from 
the University of Houston, University of California at 
Berkley--I will submit them later--that show us in real time 
what is going on on the campuses.
    While this is a destressing national phenomenon, permit me 
to delve into the events in my own State of California. Instead 
of giving the examples that are already quoted, let me just say 
that the few anti-Semitic incidents, some of them that are 
reported at University of California.
    Jewish students on many campuses from coast to coast report 
severe, persistent, and pervasive harms at the hands of anti-
Israel activist. That harassment often includes physical and 
verbal assaults, destruction of property, bullying and 
intimidation, denigration, discrimination, and suppression of 
speech. And often takes place regardless of the victim's 
personal feelings on Israel.
    Jewish students report fearing displaying their Jewish star 
necklaces, wearing their Jewish sorority and fraternity 
letters, or sometimes even walking to Hillel for Shabbat 
dinner. The problem had become so severe that University of 
California then President Mark Yudof commissioned a fact 
finding team to interview Jewish students on seven UC campuses 
in order to objectively assess the campus climate for them.
    According to the team's report, Jewish students were 
indeed, `confronting significant and difficult climate issues 
as a result of activities on campus which focused on Israel, 
its right to exist, and its treatment of Palestinians.'
    The team found that on every U.C. campus they visited, 
`Jewish students described an environment in which they felt 
isolated and many times harassed and intimidated by students, 
faculty, and outsiders.' Despite the undeniable hostile 
environment that many Jewish students experienced at UC 
California complaints filed under title VI of the 1964 Civil 
Rights Act on behalf of Jew students on three campuses--U.C. 
Irvine, Santa Cruz, and Berkeley--were unceremoniously 
dismissed on the same day in August 2013.
    Mr. Chairman, usually members of the clergy go on very, 
very long and look for a dispensation from the good Lord for 
the clock. I will instead just cut to the chase of the last two 
paragraphs. Had OCR officials used the State Department's 
definition in identifying the basis of the harassment that 
targeted Jewish students, they would have recognized the anti-
Semitism at the heart of it.
    Instead, OCR's lack of an adequate understanding of anti-
Semitism has effectively denied Jewish students equal 
protection under the law and left them uniquely vulnerable 
among their peers. That is why we ask you and your colleagues 
to support our request and to move this legislation forward. 
Thank you, Mr. Chairman.
    Chairman Goodlatte. Thank you, Rabbi. Dr. Trachtenberg, 


    Dr. Trachtenberg. Thank you. Thank you, Chairman, Ranking 
Member Conyers, and members of this committee. It is an honor 
to be here today to testify on the issue of anti-Semitism on 
college campuses. I am grateful that you are soliciting a wide 
range of voices on this important subject, because the right of 
students and faculty to express diverse views is precisely what 
is at stake in the current attempts to limit campus speech.
    It is increasingly common to hear reports that a new anti-
Semitism threatens to engender students on a scale not seen 
since the second World War and the Holocaust. Studies from 
several major organizations have sounded the alarm that anti-
Semitism is a clear and present danger while a number of 
commentators have argued that yet another war against the Jews 
is upon us.
    However, they are motivated less by an actual threat facing 
American or world Jewry than they are part of a persistent 
campaign to thwart debates, scholarly research and political 
activism that is critical to the State of Israel.
    The truth is that the old anti-Semitism, such as we saw in 
Charlottesville this summer where torch-bearing marchers 
carried Nazi and Confederate flags and chanted, ``you Jews will 
not replace us,'' and murdered a protester is still live in the 
United States and requires vigilant and persistent resistance.
    Legislation such as the Anti-Semitism Awareness Act, 
however, is not a genuine attempt to contend with actual anti-
Semitism. But rather is an attempt to quell what are in fact 
protective acts of speech that are vital and necessary to the 
scholarly missions of educational institutions and to the 
functioning of democratic societies.
    It is a factual distortion to characterize campuses in the 
United States as hot beds of new anti-Semitism. A recent study 
by researchers at Stanford University reported that while 
depictions of rampant anti-Semitism are widely reported in the 
press, they do not represent the actual experiences of Jewish 
students at the campus level.
    They discovered that campus life is neither threatening or 
alarmist. In general, students reported feeling comfortable on 
their campuses and more specifically, feeling comfortable as 
Jews on their campuses.
    Much of the testimony you will hear today is likely to 
argue that anti-Semitism is at crisis levels. I urge you to be 
skeptical of such claims. First, many of the stories that get 
wide circulation contained factual distortions and are 
misrepresented in the media. Second, many studies are based on 
a definition that defines criticism of Israel as inherently 
    Rather, students who engage in speech that is critical of 
Israeli policy are largely motivated by their concern for 
Palestinian human rights. They are not motivated by anti-
Semitic speech, but its opposite: a desire to end racial and 
religious discrimination of all kinds. It is profoundly 
difficult to create a definition of anti-Semitism for 
legislative purposes. The root of current debates in anti-
Semitism lie in a seemingly intractable problem of how to 
critique Jewish collective power in a way that does not 
immediately resonate with a long history of anti-Semitism.
    Throughout the last thousand years of European history Jews 
were regularly characterized as an incommensurate and 
exceptional element who sought to undermine the established 
religious, political, and economic order. In each of those 
moments, Jews were imagined as a united group that possessed 
power and authority far beyond their actual numbers.
    Yet in 1948 with the founding of Israel as the solution of 
anti-Semitism, the situation changed dramatically. For the 
first time a significant number of Jews gained actual, not 
imaginary power. Today the State of Israel has borders, police, 
courts, a military, a nuclear arsenal, political parties that 
are mostly representative and somewhat democratic system of 
    Like all other states its actions must be permitted to be a 
matter of public debate and discourse both within the Jewish 
community and outside of it. It is speech that is critical of 
Israel still strikes many as inherently anti-Semitic. The 
problem is we are still learning how to talk about Israel's 
actual political power in ways that do not immediately echo 
much older and anti-Semitic depictions of imaginary Jewish 
    This is not only on account of the long history of anti-
Jewish hatred in the west, it is also because as we see in a 
legislative initiative such as these to characterize any speech 
that is critical of Israel as intrinsically anti-Semitic has 
been a highly effective tool employed by those who uncritically 
support every action of Israel and see to stigmatize all 
    It would be ill-advised for Congress to establish legal 
authority on the definition of anti-Semitism that is so deeply 
contested. To insist that Israel cannot be protested or 
objected to, to mandate that collective Jewish power cannot be 
analyzed or debated, or to concluded that Jews--because they 
were once victims of humanities greatest genocidal crimes--are 
somehow immune for becoming perpetrators of violence against 
other people's reinforces the anti-Semitic believe that Jews 
are fundamentally different people.
    Most dangerously of all, attempts to broaden the definition 
of anti-Semitism to encompass phenomena that are clearly not 
anti-Jewish can only make it more difficult to recognize, 
isolate, and oppose actual anti-Semitic hatred when it does 
appear. Thank you.
    Chairman Goodlatte. Thank you. Mr. Clement, welcome.

                   STATEMENT OF PAUL CLEMENT

    Mr. Clement. Thank you, Mr. Chairman, Mr. Conyers. It is a 
pleasure to be here. It is a particular privilege to be here 
representing the ADL, Wiesenthal Center, APAC, and the Jewish 
Federations of North America.
    There are at least three kinds of issues floating around 
the room this morning: one is the extent of the problem; two is 
the policy wisdom of addressing it with a clarifying definition 
of anti-Semitism; and the third is whether providing that 
definition raises problems under the First Amendment. The 
others on this panel are much better situated to address the 
first two issues.
    So I will direct my remarks only to the third issue, and to 
say as emphatically as I can, that providing a definition along 
the lines that the Anti-Semitism Awareness Act would do does 
not raise First Amendment problems for three basic reasons.
    One, is that this Act is not a speech code, but simply 
provides a definition that will allow the Education Department 
to use, potentially, speech--but only for evidentiary 
purposes--in evaluating whether or not harassment is motivated 
by anti-Semitism.
    Second, that a definition here serves First Amendment 
values, it does not harm them. One way or another, government 
officials are going to be looking in to this question, and I 
think it serves First Amendment values for them to have a 
definition that guides their mission.
    And, third, but I think, frankly, least importantly the 
fact that the Act has a savings clause.
    So on the first of these points that it is not a speech 
code, I think it is very important to understand that this Act 
does not take any speech and make it illegal or impermissible.
    So somebody, just like they can do today, can engage on 
campus in the most abhorrent anti-Semitic speech and the 
Education Department will not take action against them just for 
that. But, if they couple that abhorrent speech with say a 
physical attack on a Jewish student, then this Act and the 
Constitution allow the use of that anti-Semitic speech to 
demonstrate the motive of the person engaged in the harassment.
    And the First Amendment clearly permits that. Which is to 
say that this is not even controversial in the sense that when 
speech is not prohibited, but only is used for evidentiary 
purposes, the First Amendment is not offended. The Supreme 
Court laid down that rule in Wisconsin v. Mitchell which was a 
unanimous decision. There were not that many things that Chief 
Justice Rehnquist and Justice Blackman agreed on, but this was 
one of them: no First Amendment problem. And that is just what 
the definition does here. It guides the Education Department in 
the evidentiary use of speech to allow them to decide whether 
or not something is anti-Semitic.
    The second major reason I do not think there is a First 
Amendment problem here is that what we have here is a 
clarifying definition. And providing a definition to government 
officials who, one way or another, are going to be looking at 
speech, providing a definition serves First Amendment values. 
The First Amendment generally abhors government officials 
looking at speech with unfettered discretion. But that is 
essentially the status quo.
    Whatever Congress does here, if Congress does nothing it is 
still going to be the Education Department's position that 
title VI forbids harassment motivated by anti-Semitism. So, the 
question really boils down to whether the Education Department 
officials are going to make that judgment without a definition 
or with a definition. And I certainly think it serves First 
Amendment values to guide that discretion.
    I think the one area of the First Amendment for a while 
that government officials had no guidance was the obscenity 
area where the Supreme Court, at least for a while, famously 
had the ``we know it when we see it'' test. I do not think 
anybody thinks that was the finest chapter in the Supreme 
Court's First Amendment juris prudence.
    And, really, right now the status quo is anti-Semitism. 
Well, the Education Department officials will know it when they 
see it, or at least we hope they will because they have no 
guidance, no definition guiding their work. And that is what 
this law could change.
    Mr. Conyers, you made the point about being concerned about 
First Amendment values in this area and I certainly share that 
concern. I do think, though, that the First Amendment issue in 
this area is largely what is the standard for harassment? If 
that is a hair-trigger and anything that offends anyone is 
harassment, then I do think there will be First Amendment 
problems. But I take the current law to be that the harassment 
standard is the same standard the Supreme Court laid down in 
the title IX context in Davis v. Monroe, but one way or 
another, this law does not change it.
    So if you want to make that more demanding to protect First 
Amendment values, you could do that. If you want to make it 
slightly less demanding, you could do that. But all this law 
does is take whatever the existing standard is and provides a 
    Just two last thoughts. One is I know the chairman has 
raised the question of why a definition here when you do not 
have a definition in other contexts? I do think that if there 
were a real doubt about what constituted racist speech, or 
there was some argument people were using to cover raciest 
speech we would want to have a definition.
    And in the same way, uniquely in this context, somebody can 
say something anti-Semitic and say, ``Oh, do not worry about 
it. It was just anti-Zionist. It was not anti-Semitic.'' And 
so, this definition really tries to address this problem.
    The last thing I will say is we also have a savings clause 
in this law. I think that is, frankly, the least important 
reason though that there is not a First Amendment problem. 
Thank you.
    Chairman Goodlatte. Thank you. Ms. Parker, welcome.


    Ms. Hagee Parker. Thank you, Chairman Goodlatte, ranking 
member Conyers and distinguished members. My name is Sandra 
Hagee Parker, and I am here on behalf of Christians United for 
Israel Actions. We represent 3.8 million members whose sole 
purpose is to stand united on behalf of the Jewish State and 
its people.
    In 2008, CUFI on campus was established aiming to educate 
students about Israel and arm them with the truth because the 
lessons learned in classrooms today become the policies in the 
public square tomorrow. And within these classrooms, 
intellectual discourse, academic freedom, and the freedom of 
speech are sacrosanct and essential to achieving tolerance and 
understanding among divergent groups. Despite this, within 
increasing regularity, Jewish students, Jewish groups, and 
those who support them find themselves having these sacred 
rights abridged.
    This past summer, a group of students from San Francisco 
State University filed a lawsuit alleging its school knowingly 
fostered anti-Semitic discrimination and a hostile environment, 
which had been marked by violent threats to safety of Jewish 
students on campus. Student Jacob Mandel experienced hostile 
behavior, which was ignored by the university despite a 
complaint being filed. He stated, ``I felt scared to be a Jew 
on campus. I felt as if the university did not want me there 
because I was Jewish and as if we were not allowed the same 
rights as other organizations on campus. I felt like a second 
class citizen because I was Jewish.''
    Brian Landry, a student at UC Davis wrote the following 
this past week in the California Aggie Newspaper, ``As a Jewish 
student I have seen my fair share of anti-Semitic actions on 
campus. I have had foul and intolerable words yelled at me 
while I am studying because I had a sticker of Israel on my 
    When Arab-Israeli Diplomat George Deek came to speak on 
campus, anti-Semitic students shouted `death to Jews' at my 
friends and me. What I have not seen is an open statement from 
the school about any of these events. But what is more 
frustrating is that due to the lack of exposure and punishment 
for these acts, other students do not know what happened.''
    We cannot change what we are not willing to confront. 
Infiltration of this behavior without confrontation has led to 
its normalization. So much so, that those who experience this 
discrimination often feel reporting it is a waste of time due 
to the regularity at which it occurs and complicity with which 
it is encountered. So pervasive is this harassing behavior that 
it spills over to non-Jewish individuals.
    Many of our CUFI students have personally experienced that 
mere standing with Jews or the Jewish State has resulted in the 
same hostility. For instance, at the University of New Mexico, 
a CUFI student had rocks thrown at them while tabling with an 
Israeli flag. They were also spit upon.
    At George Mason, a CUFI student wearing a CUFI T-shirt was 
confronted in their cafeteria, cursed, and yelled at in front 
of several hundred students and told that she was disgusting 
and a baby killer. That student is now too frightened to wear 
the shirt again. This behavior is not meant to provide a 
legitimate critique. It is harassment aimed to silence and shut 
down the prospective of Jewish students and those who support 
    Allowing this behavior to shut down free speech is at odds 
with the free thinking and safe environment our Nation's 
colleges strive to create. Students and administrators alike 
should be able to distinguish between a valid critique of a 
nation and anti-Semitic behavior cloaked as opposition to 
Zionism. Providing a standard by which to judge these acts, no 
more chills free speech in the presence of a thermometer 
prevents the temperature from rising. Both sides of the 
argument deserve to be heard, but at present, one side is using 
the First Amendment as both a sword with which to inflict harm 
and a shield with which to protect itself from the consequences 
of its actions.
    Valid intellectual discourse of equal access to education 
should not be mutually exclusive. And the exercise of free 
speech is not an affirmative defense for harassment. The First 
Amendment does not relieve schools of their obligation to 
ensure that their students receive equal protection under the 
law. As Kenneth L. Marcus, President Trump's present nominee 
for Assistant Secretary of Civil Rights in the DOE has stated, 
``The U.S. Department of State has developed excellent tools 
for addressing anti-Semitism in every country other than the 
United States.'' So, why not hold ourselves to the same 
    And despite Stanford's 2017 study concluding it was a 
problem, anti-Semitism was problematic enough at Stanford 
University that its student body took it upon itself to pass a 
resolution against anti-Semitism and within it included the 
same definition used by the State Department for guidance.
    Anti-Semitism is not a Jewish issue, it is a human issue. 
Jewish identity and ancestry continue to be a target whether 
one is male or female, Conservative or Liberal, religious or 
agnostic. History has already shown us what happens when good 
men and woman do nothing in the face of such evils. Not to act 
is to act. Thank you for your consideration and your time.
    Chairman Goodlatte. Thank you, Ms. Parker. Mr. Greenblatt, 


    Mr. Greenblatt. Thank you. Good morning, Chairman 
Goodlatte, Ranking Member Conyers, and members of the 
committee. I am Jonathan Greenblatt, CEO and National Director 
of the Anti-Defamation League. I deeply appreciate the 
opportunity to participate in this timely hearing on anti-
Semitism on college campuses.
    I would like to use my time this morning to highlight the 
trends we are seeing including the rise of anti-Semitic 
incidences on campuses and the impact of unprecedented outreach 
and recruitment by organized hate groups on campus. Then, 
provide suggestions to some potential responses.
    As the Congressman Conyers noted, the ADL's been tracking 
anti-Semitic instances in America since the 1970s. Our annual 
audit, which we are now doing on a quarterly basis, provides a 
snapshot of this national problem and helps our professionals, 
at our headquarters in New York and our 26 field offices around 
the country, identify trends and craft responses.
    Data drives policy and our audit has led us to draft the 
first model hate crime law in the U.S. Today that hate crime 
law has been adopted by the Federal Government and 45 states 
around the country, including the District of Columbia. And the 
Federal Hate Crimes Statistic Act of 1990 is also based on the 
idea that we must count each and every bias motivated crime and 
teach police in communities how to respond to them.
    New audit data released last week as, Congressman Conyers 
noted, detailed a 67 percent increase in the first three-
quarters of this year over the same time period last year. In 
fact, we have already recorded more anti-Semitic incidences in 
2017 then we saw in their entirety of 2016. I am talking about 
acts of harassment, vandalism, and violence directed against 
Jewish individuals and institutions. These numbers are compiled 
by my team of professionals with each reported incident 
verified before we log it. This is not about rumors or 
rhetoric. This is about hard facts.
    Anti-Semitic incidences indeed spiked after the Unite the 
Right rally in Charlottesville. Until late 2016, such white 
supremacists were not active on college campuses. But starting 
in the fall of last year, they began a much more open effort to 
spread their message and recruit at colleges and universities.
    Last year at this time, the ADL had tracked nine incidences 
of white supremacist activity on college campuses. This year, 
for the same time period--that is two months into the academic 
year--we have tracked 80 such incidences. Nearly a tenfold 
increase year over year.
    But anti-Semitism cannot be attributed solely to extremist 
on the right. Neither side of the political spectrum is exempt 
from intolerance. We have seen a rise in anti-Semitic rhetoric 
coming from a radical left wing viewpoint as well. One often 
rooted in extremely hostile views on Israel that can cross the 
line into anti-Semitism.
    Now, there is nothing wrong with criticizing particular 
policies of a specific elected government in Israel. That 
happens all the time, and it is not anti-Semitism. Just as 
criticizing policies of the Trump administration or the U.S. 
Congress does not make you anti-American. That is not what we 
are talking about.
    But whether it originates on the fringes of the left or the 
extremes on the right we have seen real cases of anti-Semitism 
surge at colleges and university. Our audit documented 118 such 
anti-Semitic incidences this year, compared to only 74 in the 
same period last year. That is nearly a 60 percent increase.
    Our written statement outlines a number of those 
incidences. I do not have time to get into them this morning. 
But when we identify a problem, we also believe we have a 
responsibility to propose solutions. Our statement highlights 
an effective response on anti-Semitism that we saw in the 
University of California system.
    And we believe at the ADL that the enactment of this Act--
legislation that was approved unanimously by the Senate--would 
be an important step forward to address discrimination against 
Jews. It would also have positive implications for Muslims, 
Sikhs, and members of other religious groups when 
discrimination is based on the group's actual or perceived 
shared ancestry or ethnic characteristics.
    As an agency that serves as a fierce advocate for the First 
Amendment, let me reinforce Mr. Clement's claim: this would not 
compromise freedom of speech, period. It would provide guidance 
to the Department of Education and the Department of Justice on 
whether to investigate anti-Jewish discrimination in instances 
in which anti-Israel activity crossed the line in to targeted, 
intentional, and unlawful discriminatory intimidation and 
harassment of Jewish students.
    Our statement also provides several additional policy 
recommendations. Number one: first, we recommend training and 
outreach programs for administrators, faculty, staff, and 
students on best practices and protocols to respond to hate 
speech, extremism, anti-Semitism, and bigotry.
    Second, we recommend that education on the parameters of 
First Amendment free speech rights. Hate speech may be 
protected, but administrators and student leaders have a moral 
responsibility to address the accompanying impact. And while 
the First Amendment protects hateful speech, it does not allow 
for harmful speech intended to incite violence.
    Third and final, we must recognize that there are no 
simple, complete solutions to this problem. And the issue of 
anti-Semitism and all forms of bigotry must be addressed long 
before the college years. The government has responsibility to 
provide funding for antibias, antiracism education initiatives 
in K through 12 schools to inoculate our children from 
intolerance before they ever get to the university.
    In closing, I deeply respect the opinions of the experts at 
the table, but let me just say, because this legislation 
balances free speech considerations with the surge of 
discrimination, the ADL and all other major Jewish 
organizations, the communal leadership are unified in their 
support of this Act. Thank you very much for your leadership. I 
look forward to your questions.
    Chairman Goodlatte. Thank you. Ms. Nossel, welcome.


    Ms. Nossel. Chairman Goodlatte, Ranking Member Conyers, and 
members of the committee thank you for the opportunity to----
    Chairman Goodlatte. You may want to turn the microphone on.
    Ms. Nossel. Thank you for the opportunity to testify today 
on anti-Semitism on campus.
    PEN America stands at the intersection of literature and 
human rights to protect open expression in the U.S. and 
worldwide. Our mission is to unite writers and their allies to 
celebrate creative expression and defend the liberties that 
make it possible.
    We work extensively on issues related to campus free 
speech. Our fall 2016 report in Campus For All, diversity, 
inclusion, and freedom of speech U.S. universities sets out a 
comprehensive analysis of the tensions that rise from colleges' 
dual imperatives to make campuses hospitable learning 
environments for students from all backgrounds while 
maintaining uncompromising protections for freedom of speech. 
It is our view that these two missions can and must coexist.
    PEN America is now working with university leaders, 
faculty, and students around the country to help address these 
strains by facilitating in depth dialogues among diverse stake 
holders and promoting concreate approaches to make the campus 
an open environment both for all people and for all ideas. We 
are alarmed at the rise of anti-Semitic speech inactions on 
campus that fellow participants in this hearing have 
documented. We applaud the committee for leadership on this 
    As an organization dedicated under our charter, both 
dispelling hatreds and defending the hampered transmission of 
thought we are firm in the belief that countering the spread of 
hatred must and need not impair free expression protections. 
Consistent with that commitment we have several related 
concerns with the Act.
    This hearing takes place at a moment of pressing threats to 
free speech on campus. Including efforts to disinvite and shout 
down speakers. Hateful speech that intimidates members of 
historically vulnerable groups. And efforts to deter, silence, 
and punish speech. Amid these encroachments, it is imperative 
to avoid allowing even well-intended measures to legitimize 
newly restrictive parameters for expression.
    It is not difficult to conceive of scenarios, a model U.N. 
debate expressing resolutions targeting Israel, speeches by 
Israeli leftists are an event featuring breaking the silence, a 
group of former Israeli soldiers who oppose their government's 
policies in which speech could meet the definition of anti-
Semitism contained in the act without being anti-Semitic at 
    While such speech alone might not amount to a civil rights 
violation, alongside other incidents and expression, it could 
form part of a claim of harassment thus subjecting the speaker 
to investigation and potential disciplinary action.
    Many college students are finding their political voice for 
the first time, exploring modes of activism, and feeling their 
way to causes that they will champion throughout their lives. 
Students are supposed to experiment and should not live in 
peril that an errant political chant, speaker invitation, or a 
remark could trigger a civil rights claim.
    One might argue the rule of reason read into the act would 
ensure that it would only be applied where the speech in 
question bore signifiers of anti-Semitic intent or sentiment. 
But the campus environment today is highly charged. We have 
seen in the context of title IX and other controversies that 
expression that may seem anodyne, satirical, artistic, or 
purely academic can trigger an intense reaction in the hothouse 
environment of a polarized campus.
    The Israel-Palestine conflict is among the most contentious 
subjects of campus debate. In this environment, any new weapon 
to counter offensive speech is vulnerable to misuse. We have 
seen that even claims of harassment that ultimately judged 
meritless can pose enormous strain on individual witnesses, 
responsible administrators, and the campus as a whole.
    Alongside rising anti-Semitism other forms of hateful 
speech are also surging. Many groups have identified slurs and 
insults that they believe are not fully recognized for their 
derogatory character. These include cartoon images of religious 
figures, depictions of members of historically marginalized 
groups by those outside of the group, and the invocation of 
lesser-known stereotypes or slurs.
    If this Act is passed, we should not be surprised if other 
historically vulnerable groups ask for similarly expanded 
protections. The campus is already a minefield when it comes to 
speech. New viewpoint specific restrictions will render it even 
more dangerous for those who dare express controversial ideas.
    Finally, having reviewed the very thoughtful testimony of 
my fellow witnesses, we submit that we do not see evidence that 
the problem of rising anti-Semitism derives from the current 
definitional confusion nor that an expanded definition will 
address the concerns we all share. While many witnesses cite 
similar practical measures they believe can be effective, I am 
not sure any of us can be confident that this definitional 
change will actually help solve the problem we are confronting.
    Finally, the U.S.' approach to free expression is the most 
protective in the world, a proud distinction. Whereas Holocaust 
denial is banned in much of Europe, it is considered protected 
speech here, best answered not by investigations or 
prohibitions but by counter speech. If the Anti-Semitism 
Awareness Act were to pass, the U.S.' claim as a global 
standard bearer against viewpoint-based restrictions on speech 
would be blunted.
    PEN America is eager to work with the committee to advance 
constructive steps to help address anti-Semitism and bigotry 
while upholding robust protections on free speech. To this end, 
we have also included in our written testimony a copy of 
``Wrong Answer: How Good Faith Attempts to Address Free Speech 
and Anti-Semitism on Campus Could Backfire.'' A new PEN America 
white paper that analyzes the Anti-Semitism Awareness Act as 
well as a recent spate of campus free speech laws in the 
States. Thank you again for the opportunity to testify.
    Chairman Goodlatte. Thank you. Mr. Stern, welcome.

                     STATEMENT OF KEN STERN

    Mr. Stern. Thank you. Thank you. Chairman Goodlatte, 
Ranking Member Conyers, and all the honorable members of the 
committee. It is my pleasure to be here today, my honor to 
represent the Justus and Karin Rosenberg Foundation which works 
to combat hatred and anti-Semitism with a special focus on the 
    From 1989 to 2014, I was the American Jewish Committee's 
expert on anti-Semitism, and over those years I worked with 
many college presidents and on a variety of initiatives about 
bigotry, anti-Semitism, and anti-Israel animus. One project was 
to train over 200 college presidents on a manual of how to 
manage campus bigotry. Every one of these projects stressed 
that approaches which promote academic freedom are more likely 
to work on campus and those that explain it away or harm it 
will actually make the problem worse.
    Let me give you one quick example. In 2007, when the 
British University and College Union, the UCU adopted a 
resolution advancing an academic boycott of Israel, some in the 
American Jewish community said Americans should boycott British 
academics in return. That approach, of course, would violate 
academic freedom because ideas should be evaluated on their 
merit not on the nationality of their proponents.
    I have worked with over 400 university presidents who 
signed the New York Times ad that essentially said if the UCU 
was intent on violating fundamental academic principles and 
dividing the academic world into two, Israelis who should be 
shunned, and everyone else, then count their universities as 
Israelis too.
    That approach worked because it underscored the importance 
of academic freedom and free speech and I dare say not one 
president would have signed that ad that said, ``let's do a 
counter boycott.'' And that is one of my main concerns about 
the anti-Semitism Awareness Act. By under cutting academic 
freedom and free speech, it, too, would do great harm to the 
academy and to Jewish students and to faculty teaching Jewish 
and Israel Studies.
    I was the lead drafter working along with my colleague Andy 
Baker who did the great politicking of the working definition 
of anti-Semitism in which the State Department definition is 
based. It was drafted, as Rabbi Baker said, with European data 
collectors upmost in mind and not to chill or regulate speech 
on American campuses.
    In recent years, some Jewish groups and individuals began 
filing title six complaints based in part on assertions that 
anti-Israel expressions transgressed the definition and when 
all those cases lost. They tried to get the University of 
California system to adopt the definition and when that failed 
they turned to lawmakers. As a Jewish communal official 
acknowledged, this type of legislation would open the door for 
other groups to seek legislatively enshrined definitions too.
    Let's imagine African American groups asking for a 
definition of racism from consideration under title VI 
targeting political expression deemed racist. Would it include 
opposition to affirmative action? Would it include opposition 
to removing statues of Confederate leaders? Imagine a 
definition designed for Palestinians. If denying the Jewish 
people the right to self-determination is anti-Semitism, then 
should not denying the Palestinian people the right to self-
determination be anti-Palestinianism?
    Furthermore there is an internal and frequently distasteful 
debate in the Jewish community as to who is included in the 
family and who is not based on whether they are Zionists. We 
know for sure, and we have heard today, of Jewish students who 
are Zionist who have sometimes suffered and suffered severely, 
but Jewish students who are anti-Zionists have been called 
traitors, have been called capos by pro-Israel Jews and told 
they are really not Jewish at all.
    Now, whether you can be an 18 year old anti-Zionist and 
inside the Jewish community is not a debate the Congress should 
decide. But by adopting this definition, Congress would do so 
by labeling anti-Zionist Jews anti-Semites. Additionally in the 
last few months, we have seen students exercising a heckler's 
veto over speakers considered conservative or racist. Support 
for Israel as seen on some campuses in a similar vein.
    Congress should not be creating something akin to a 
presumption that if a pro-Israel event is targeted it is 
because of anti-Semitism rather than political disagreement. 
The focus on Israel also ignores other challenges to Jewish 
students today, such as Albright campus organizing and the 
mistaken views that because Jews are largely white they cannot 
be victims of hatred.
    Here is what concerns me most. Some groups empowered by a 
congressional endorsement of the definition for campus 
application will hunt speech they believe transgresses it and 
then press administrators to either suppress it or condemn it, 
threatening title VI cases. We want administrators and other 
campus officials to conduct surveys on campus climate to offer 
full semester classes on anti-Semitism to find new ways to use 
education to break down the binary thinking around the Israeli-
Palestinian conflict.
    We want universities to cultivate an environment in which 
all student Jews included feel comfortable saying what they 
think even if their ideas are not fully formed and they might 
be wrong. But when an administrator is effectively told, as 
they will be by the general counsels, that they will be 
evaluated on how well the police react to anti-Israel political 
speech, that will likely be their only focus.
    As we have heard today, the working definition was recently 
applied to campus in the United Kingdom. See how that worked 
out. An Israel apartheid week event was canceled as violating 
the definition. A Holocaust survivor had to change the title of 
the campus talk after an Israeli diplomat complained. And most 
disturbing an off-campus group got a university to investigate 
a professor for violating the definition and article she had 
written years ago. The university ultimately found no basis to 
discipline her, but the exercise itself was chilling and 
    My fear is we simply enshrined this definition to law, 
outside groups will try to suppress rather than answer 
political speech they do not like. The Academy, Jewish 
students, and faculty teaching about Jewish issues will all 
suffer. Thank you very much.
    Chairman Goodlatte. Thank you, Mr. Stern. We will now begin 
with the questioning of the witness and I recognize myself.
    Rabbi Baker, you write in your written testimony that ``if 
we are to be successful in combating anti-Semitism, we must 
first understand it. We must define it. It is a complex 
phenomenon. It has changed over time. It presents itself in 
both new and traditional forms.'' To some, however, that the 
phenomenon of anti-Semitism changes over time presents itself 
in different forms over time would counsel against codifying 
any particular definition of anti-Semitism.
    How is a definitional codification approach compatible with 
the concept of discrimination that changes over time?
    Rabbi Baker. Thank you, Mr. Chairman for the opportunity to 
expand on this. The fact is that there is I think a core 
understanding of what anti-Semitism is about. But the way it is 
manifested, the way people encounter it will vary from time and 
    It does not mean that one day to the next it has changed or 
would change dramatically. I think the idea of a definition, 
and in fact this working definition that was developed first 
with great difficulty to achieve consensus among Jewish experts 
and organizations around the world and then to find its use in 
the UMC and in other bodies in Europe, really began with 
acknowledging those traditional aspects of anti-Semitism.
    They may, as Dr. Nadell said, wax and wane over time. We 
understand that but we should explain and define them for 
people to be clear on this. The idea of conspiracy theories 
against Jews, what other elements motivate this hatred. But 
also to recognize, as we have seen in more recent times, for 
example, Holocaust denial is itself a form of anti-Semitism.
    It would not have been part of a definition a century ago, 
but it is critical now. And finally, when we speak about anti-
Semitism as it relates to Israel. And I think that is something 
more and more people have come to recognize not just Jews who 
have experienced it in Europe or now here in the U.S. and on 
college campuses.
    Chairman Goodlatte. Let me interrupt.
    Rabbi Baker. That is okay.
    Chairman Goodlatte. Since I only have 5 minutes. Thank you 
for that.
    Rabbi Baker. You are welcome.
    Chairman Goodlatte. I get your message. Dr. Nadell, I was 
pleased to see that Kenneth Marcus an advocate for the use of 
the State Department's definition of anti-Semitism in 
addressing anti-Semitism under title VI was nominated by the 
President to head the Civil Rights Division of the Department 
of Justice which would enforce title VI.
    I expect, and I guess I will ask if you expect, that Mr. 
Marcus, if he is confirmed to that position, would use the 
State Department's definition of anti-Semitism in addressing 
anti-Semitism under title VI. And if so might it be best to 
wait and see the results of using such a definition before 
Congress were to codify it into statutory law.
    Ms. Nadell. Thank you, Mr. Chairman. I very much agree that 
I think it would be very useful to find out how this is going 
to be applied in different situations rather than passing 
legislation to decide something that we do not know how it will 
play out. So, I agree with you, I think your suggestion is a 
good one.
    Chairman Goodlatte. Mr. Greenblatt, would you care to 
comment on that same question?
    Mr. Greenblatt. I think we need to keep in mind that the 
attempt to ensure that Mr. Marcus or other officials simply can 
consult the definition, would make it easier for them to do 
their job effectively. So, rather than having Congress wait, I 
would encourage you to proceed expeditiously with this process 
so that Mr. Marcus can be an effective advocate and public 
servant at the Department of Education.
    Chairman Goodlatte. Dr. Trachtenberg, Rabbi Baker wrote in 
his written testimony that unlike anti-Semitism, other forms of 
prejudice and group hatreds are easy to recognize. Do you, or 
any of the other panelists for that matter, disagree with that? 
That is, cannot and do not all forms of hatred change with the 
circumstances and the times?
    Dr. Trachtenberg. Thank you for your question. I think we 
always have to pay attention to context when we are looking at 
any particular one incident, and we need to investigate it 
    When we think about the State Department definition which 
seeks to codify what anti-Semitism is, it is such a flawed 
definition that it can virtually encompass any particular act 
without any real regard for context although it pretends that 
it does.
    For example, the State Department definition claims that 
stating that a particular Jewish person has more loyalty to the 
State of Israel than they do to their own country is 
necessarily an example of anti-Semitism. Where the truth is, 
that is one of the fundamental premises of Zionism, and if you 
go back and look at the statements say of Theodore Hertzel, who 
really what is considered the founding text of Zionism, he 
argued very clearly that Jews are one people and therefore it 
is useless for them to be patriots to the countries in which 
they reside.
    So there is times when a statement like that is contained 
in the definition of the State Department would actually 
undermine the founding premises of Zionism itself.
    Chairman Goodlatte. Thank you. My time is expired, but Mr. 
Stern I was intrigued by a portion of your testimony that I do 
not think you talked about in your oral testimony. And that is 
would you elaborate on the points that you make with regard to 
something you call ``Pandora's Box?''
    Mr. Stern. Thank you. Thank you, Chairman Goodlatte. And 
the issue is that once you open up this capacity for having an 
official definition, then I suspect any organization that 
represents other groups that are concerned with things on 
campus would want a definition too.
    I mean, again, to look at affirmative action as I mentioned 
before, if somebody on campus says, ``There should be no 
affirmative action,'' you could understand how an African 
American student might hear that as, ``I do not really belong 
here.'' And that is something that the university should take 
responsibility for in looking at the campus culture.
    But you would have groups, I would think, at that point 
saying, ``Wait a minute, this is an issue of something that 
makes students feel uncomfortable and want to codify that 
too,'' under title VI the OCR should look at that as a 
condition specifically. And I think you can find other types of 
examples with other types of groups down the road----
    Chairman Goodlatte. My time is expired so I do not think we 
are going to do it at this point.
    Mr. Stern. But that is the point.
    Chairman Goodlatte. But I get that from your point.
    Rabbi Cooper. Mr. Chairman.
    Chairman Goodlatte. Yes, Rabbi Cooper.
    Rabbi Cooper. If I may? I just want to bring back in focus 
as to why we are here this morning. The United States, through 
its agencies, has failed many Jewish students who went through 
extreme situations of anti-Semitism. We are here because we 
need your help to address that. And I think that needs to be a 
    Secondly, just, with permission, the idea that a dual 
loyalty or being more loyal to a state other than the nation 
that we have been born into is inherent in Zionism which was 
just stated by another speaker cannot go unchallenged. It is 
simply, it is not true, it is not accurate, and it is cannon 
fodder for anti-Semites.
    Chairman Goodlatte. Thank you. The chair now recognizes the 
gentleman from Michigan, Mr. Conyers, for his questions.
    Mr. Conyers. Thank you, sir. This has been a very unusual 
situation. As an African American, I keep thinking about what 
if we were looking at the question of race from this 
perspective? And I have four questions here. But I think 
instead I will just ask each one of you who chooses to take 
just a few sentences to sum up any last considerations that you 
would leave the House Judiciary Committee with, and I will 
start with you, Rabbi Baker.
    Rabbi Baker. I think the Anti-Semitism Awareness Act would 
provide guidance that would explain what anti-Semitism is about 
to people who need to know. It would go beyond what you 
mentioned, Mr. Conyers, in the 2010 guidance that potentially 
can be changed in a new administration that would underscore 
the fact that title VI should be used to address anti-Semitism 
on college campuses.
    Mr. Conyers. Dr. Nadell.
    Ms. Nadell. Thank you. I think the Anti-Semitism Awareness 
Act is problematic if there is a way to see it referred to with 
Kenneth Marcus and perhaps that is the way to go, but for now 
it will label anti-Israel actions on campus as anti-Semitic, 
and it will quash free speech. And that is a mistake.
    Mr. Conyers. Thank you. Rabbi Cooper.
    Rabbi Cooper. Congressman Conyers, we know each other for a 
few decades. And just to summarize: the American Jewish 
community wall-to-wall is here this morning because we need 
your help. And as a leader in the civil rights movement and 
along with the chairman we are here because we have a defined 
problem. You have heard the statistics from the Anti-Defamation 
League. They are quite shocking. What is happening here is 
happening in real time. And those who refuse to recognize the 
problem of anti-Semitism, well it is kind of like inviting 
people from the Flat Earth Society to a hearing about NASA.
    Mr. Conyers. Thank you. Dr. Trachtenberg.
    Dr. Trachtenberg. Thank you. What I would say as a comment 
that I hope you leave with today is to listen seriously please 
to what the faculty who work in the field of Jewish studies are 
asserting. What you have heard from the president of the 
Association for Jewish studies just to my right, as well as 
from myself.
    And for many, many other faculty members who have studied 
this issue very, very carefully using rigorous scientific 
methods, the question of anti-Semitism is a highly contested 
one and it is a topic that we do not believe that should be 
addressed with the Anti-Semitism Awareness Act. And I think you 
should trust professors and universities to contend with these 
issues as they arise on their campus and allow us to teach our 
students unimpeded. Thank you.
    Mr. Conyers. Thank you, sir. Attorney Clement.
    Mr. Clement. Mr. Conyers, I would just like to follow up on 
your analogy to the race context. And I would think if we had a 
dynamic on our college campuses where we felt like the existing 
title VI prohibitions against harassment on the basis of race 
were being under enforced because people kept on saying when 
they were accused of harassment on the basis of race that they 
had some white supremacy symbol, and that this was an anti-
African American but it was all in service of this symbol, that 
we had a consensus that that was wrong, that we could amend the 
definition, and restore an adequate prohibition of harassment 
on the basis of race. And it would not raise First Amendment 
problems, because it would only be triggered by harassment.
    Mr. Conyers. Thank you. Chairwoman Parker.
    Ms. Hagee Parker. Thank you, Ranking Member Conyers. I 
would just like to underscore that while I understand and 
appreciate that academics study the problem, it is our students 
who are living the problem. They are the ones that are having 
the rocks thrown at them. They are the ones that are having the 
vitriol spoken to them. And the academics of Stanford did an 
extensive study that said, for the most part, Jews felt safe. 
The students of Stanford took it upon themselves to pass a 
resolution doing large in part what we are advocating here for 
    Mr. Conyers. Thank you. Attorney Greenblatt.
    Mr. Greenblatt. Not an attorney Mr. Conyers, let me dispel 
    Mr. Conyers. Director Greenblatt.
    Mr. Greenblatt. What I would simply say is that the Anti-
Semitism Awareness Act from a First Amendment perspective will 
not squash free speech. It will not chill freedom of 
expression. But I would also encourage you as you reflect upon 
the views of academics who live with the privilege of tenure in 
the ivory tower and listen to those of us who work on Main 
Street, the ADL, the American Jewish Committee, APAC, Jewish 
Federations in North America, all the major Jewish communal 
organizations support this legislation.
    Mr. Conyers. Thank you. Director Nossel.
    Ms. Nossel. Thank you. We agree that there is a serious 
problem does not mean that the solution is right in front of us 
is the correct one. I think here we have to keep in mind the 
law of unintended consequences. We risk fueling the fire of 
contentious debates and opening the door to other restrictive 
measures that would chill speech, even if they do not violate 
the First Amendment. We have practical measures we all agree on 
that can be reinforced and that is where I would suggest that 
we focus.
    Mr. Conyers. Thank you. Director Stern.
    Mr. Stern. Thank you. Five quick points. One is I agree 
with Dr. Trachtenberg that you should listen closely to the 
people that are teaching on the campus, especially on these 
issues. They are the ones that I think have the closest feel of 
the pulse.
    Secondly, this type of legislation I think will be a black 
hole that will suck away all the other things that we really 
want campuses to do to deal with their environment, to deal 
with their teaching. This will be the preferred answer and the 
focus rather than all those other things.
    Third, I think Jewish students are suffering in many places 
around the Israel-Palestine conflict because there is a great 
binary. Justice is seen all on one side or all on the other 
side. Legislation like this, rather than breaking down that 
binary, will add to it to the detriment of Jewish students. 
Fourth, I disagree with something in Rabbi Cooper's written 
statement where he talked about protecting vulnerable Jewish 
    I teach on the campus, too. I have taught a class on anti-
Semitism at Bard College. I do not think the Jewish students 
that I come into contact feel themselves as vulnerable and want 
to be protected. They want to be engaged and have their 
thinking shaken up by having the full capacity to look at these 
issues from every possible way.
    And fifth, I really worry about the instinct to monitor 
speech. We have seen the outside groups creating dossiers 
online. We have seen what is happened in the U.K. If I am a 
Jewish Studies professor and I am going to be monitored for 
whether I teach something that transgresses this definition I 
am going to say why should I bother, I would rather teach about 
18th century Judaism rather than Jews today and that is going 
to be harmful.
    Mr. Conyers. Thank you, all. I am going to examine this 
conversation we have had this morning very carefully.
    Chairman Goodlatte. Thank you, Mr. Conyers. The chair now 
recognizes the gentleman from California, Mr. Issa for 5 
    Mr. Issa. Thank you, Mr. Chairman. Rabbi Cooper, in your 
experience: I am assuming you have experience discussing with 
college administrators or response to these anti-Semitic 
incidents and what have you learned?
    Rabbi Cooper. Well we have had at our Museum of Tolerance 
in Los Angeles a lot of interaction with primarily California-
based U.C. and Cal State administrators, people up and down the 
line, including some of the campus police; there is been a lot 
of exchange. There have been, you know, seminars and 
discussions. What has been lacking and what we hear back from 
people who have, let's say, been burned once or twice by 
incidents that they did not anticipate, is they lack a context.
    They are looking for a basic definition to give them a 
context on campus to guide them. In my written and verbal 
testimony, I spoke at some length about President Yudof when he 
was the head of the U.C. system spent an enormous amount of 
time on this problem, not because it was theoretical, but 
because the students at the bottom of all of this were not 
being protected by the system. And he tried, I think mightily, 
to come up with ways to begin to correct that situation. But 
the fact that we are here today before this important group of 
legislators here in the House indicates that we do need help.
    That context, as Mr. Clement so brilliantly presented it, 
simply is that it is a definition that will help trained 
college administrators, chancellors, and the rest to apply the 
existing context and rules to a situation in which Jewish kids 
have been subjected to the kinds of behaviors that brought us 
here today.
    Mr. Issa. So, you would not say that that there is an 
unwillingness to protect, but a lack of training? Is that a 
fair assessment? Because I see it as their most of the 
administrators are not taking measures to protect.
    Rabbi Cooper. I think a lot of administrators in their own 
training never heard the introduction of the term anti-Semitism 
along all the other areas of protected groups, minority groups, 
agenda groups that have to be protected. It simply never 
entered the lexicon until these incidents came forward. And it 
was clear from our interaction with the people and let's give 
them the benefit of the doubt that they were well-meaning and 
wanting to address it. They did not really know where to begin.
    In addition there are many individuals on campuses on 
various levels who actually believe that Israel is an 
exceptional state--i.e. an apartheid state, a racist state--
guilty of all sorts of crimes in which their own personal 
biases do enter in to the way in which they respond to 
situations on campuses. But overwhelmingly I do not think it is 
ideologically driven. I think it is something that is 
relatively new. They are not quite sure how to proceed.
    Mr. Issa. Well, you know, Rabbi you know it is been a long 
time since I went to college. But in those days, it was a 
simpler time. This would have been very clear--yeah. Do not 
look at me as how much simpler--but it was a simpler time. We 
would have looked at it. We would had the '67 war, the '73 war 
actually occurred during my college period. Today it seems like 
we are involved with lots and lots of issues, every sort of 
politically correct speech and so on.
    How do we in Congress initiate a process that prioritizes 
the unique characteristics of anti-Semitic behavior, lest we 
begin a process and end up caught up in the dozens of other 
politically correct things that we sometimes talk about how 
people refer to people? You know, somebody can refer to a woman 
in an incorrect way, another race, or religion, in an incorrect 
way. And they are often categorized as though all of them are 
equals. And none of them are good, but how do we in Congress 
initiate a process that put a priority on this type of hate 
speech based on its history and its pervasiveness?
    Rabbi Cooper. I would just make two points and perhaps also 
Mr. Clement will want to. The two points I would make is number 
one we are not looking to put the Jewish student at the head of 
the line. We are looking to include Jewish students within the 
context of the commitment on every campus against intimidation 
or creating a place where you can exchange ideas. And there is 
not a single organization represented here that, in fact, ever 
handed the State of Israel a moral blank check for specific 
actions or policies that it is taken. So, I think that is a 
simply a false issue.
    The other point here also is for us to understand it is a 
more complex time and a lot of these controversies are part of 
global campaigns against the State of Israel, against the 
Jewish people. They are sort of parachuted into campuses which 
is one of the reasons why so many university administrators 
seem so clueless about how to deal with it. But when you have, 
God forbid, the next outbreak and we pray it will not come in 
the Middle East especially now with social media, but even 
before, the same mantras you will hear on the streets of Gaza, 
you will hear on the campuses. And those attacks will not be 
about Israel. They will be talking about Hitler was right and 
death to the Jews.
    Mr. Issa. Thank you.
    Chairman Goodlatte. The chair recognizes the gentleman from 
New York, Mr. Nadler for 5 minutes.
    Mr. Nadler. Thank you. Mr. Stern, it is clear to me, at 
least I have been following this for a good long time, that 
there is a real problem on some campuses, and I think most 
people would agree with that. But the Anti-Semitism Awareness 
Act would require only that the Department of Education 
    It says, ``The Department of Education should take into 
consideration the definition of anti-Semitism as part of the 
Department's assessment of whether whatever was going on was 
motivated by anti-Semitic intent.'' Supporters note that the 
definition is not dispositive of whether title VI has been 
violated. That, therefore, that should eliminate any concerns 
about a chilling effect on free speech. What is your response 
to that?
    Chairman Goodlatte. Use your microphone.
    Mr. Stern. My response is that you know inherently is 
disingenuous. When you prioritize a certain definition, it has 
the weight of having Congress behind it compared to any other 
definition they can consult.
    And, you know, I am really not as concerned, although I am, 
about the two, three, or four, or five cases that may come up 
under this. I am more concerned about the day-to-day impact on 
the campus, by the fact that administrators will be told to 
look at this and monitor speech, and people from outside as 
they have with these early title VI cases and with these 
websites focusing on dossiers of professors and students will 
say, you know, hunt the speech.
    And if you cannot suppress it, like the Israel apartheid 
week type of thing you ought to at least condemn it. So, you 
will give incentives to chill speech when I think on campus 
what we really need is to cultivate an environment that does 
exactly the opposite, that brings out all the different sides 
of the conflict and----
    Mr. Nadler. Counter-speech.
    Mr. Stern. Counter-speech and use education to do it now.
    Mr. Nadler. So, would it ever be appropriate for the 
Federal Government to define anti-Semitism for the purposes of 
title VI?
    Mr. Stern. I do not think so or for any other type of 
bigotry because then you----
    Mr. Nadler. So, it is not that this definition is too 
broad. You do not think there should ever be a definition?
    Mr. Stern. I think there are problems with the definition 
of using it for campus. Because again, you know, denying Israel 
the right to exist is something you do not want to have in the 
venue of the U.N. for the president of Iran to say and that 
should be objected to. An 18-year-old on a college campus who 
is trying to figure out a Jewish student whether I am Zionist, 
whether I am anti-Zionist, whether I am tribal, whether I am 
universal. They have to have the right to explore those ideas.
    Mr. Nadler. Now without referencing a definition of law, 
how should the Department of Education identify and investigate 
anti-Semitism and enforce title VI?
    Mr. Stern. I actually brought a case when I was at AJC for 
high school students in Binghamton, New York, Vestal school 
district, where the kids were being harassed--had nothing to do 
with Israel. But I can tell you nobody asked me to look at the 
motivation, what these people really thought about Jews. Nobody 
looked at the definition.
    What they looked at was whether these kids were being 
identified as Jews and harassed as Jews, and they were. 
Wisconsin v. Mitchell basically says the same thing. It is not 
the motive that is the problem. It is this selection of 
somebody to be a victim in a particular circumstance. And I 
think that is how you approach it.
    Mr. Nadler. In the last 7 years since the DOE issued its 
guidance, how would you evaluate the department's enforcement 
efforts regarding anti-Semitism?
    Mr. Stern. You know you are talking about specific cases. I 
think the cases, that at least I was aware of had problems they 
certainly had some indicia of actions that were problematic, 
but they also rely very heavily on protected speech.
    So I have no capacity at this point to say at a particular 
case they should have done something differently on those 
cases. And those cases that were brought, again, contained 
complaints about classes, about text, about campus speakers, 
about other programs. And I think they were rightly concerned 
about filing title VI violations on those situations.
    Mr. Nadler. Thank you. Mr. Clement, if enacted, what 
protections would the Anti-Semitism Awareness Act provide for 
students on campus that are not already provided for in the 
current law?
    Mr. Clement. I think, Mr. Nadler, they would provide the 
protection of having the enforcement agency empowered with the 
definition. So, I do not know that this is----
    Mr. Nadler. All right, the enforcement agency could do 
whatever it could already do, but they would be guided by 
    Mr. Clement. That is right.
    Mr. Nadler. Okay.
    Mr. Clement. That is right. And I think it would facilitate 
the whole process.
    Mr. Nadler. Let me go into the next question.
    Mr. Clement. Sure.
    Mr. Nadler. Critics of the Anti-Semitism Awareness Act 
argue that even if you are correct that the Anti-Semitism 
Awareness Act does not violate the First Amendment, it could 
still have a chilling effect on political speech on campus. How 
would you respond to that?
    Mr. Clement. I would respond to that by saying the key to 
ensure that title VI, not just for anti-Semitism but for all of 
the things that it prohibits, the key to making sure that it 
does not have a chilling effect on speech is to make sure that 
the test for harassment is sufficiently robust and consistent 
with our First Amendment values.
    But the rest of it, I think is mistaken. I mean, when 
someone suggests that this is going to stop a professor from 
lecturing on a topic in class; that just mistakes what the 
standard is for finding harassment under title VI.
    Mr. Nadler. Lastly, Mr. Stern, Mr. Clement argues that the 
Anti-Semitism Awareness Act does not raise constitutional 
concerns because it contains a saving clause, more importantly, 
because it addresses conduct-like harassment rather than 
protected speech and it simply adds definition to an existing 
prohibition in the law. How would you respond to that?
    Mr. Stern. I would say two things. First, I disagree 
because in the application of it in particular it will be 
problematic. Mr. Clements has also said the saving clause are 
pretty much useless as Suzanne Nossel said as well. I know the 
Foundation for Individual Rights in Education has also done a 
very thorough analysis of this. In my view, they are the 
experts on this and they have concluded without question that 
this would be unconstitutional.
    Mr. Nadler. My time has expired. I thank you.
    Chairman Goodlatte. I thank the gentleman. The chair now 
recognizes the gentleman from Florida, Mr. Gaetz, for 5 
    Mr. Gaetz. I thank the chairman, and I would like to begin 
by bragging about my State of Florida. I am so proud that in 
response to some of the student government associations 
endorsing the BDS movement, the State of Florida passed 
legislation that divests our State of any entities that are 
participating in the BDS movement. That is legislation built on 
the landmark work of my colleague Mr. Deutch during his service 
in our State legislature when he ensured that our State 
divested from companies that were engaging with Iran in their 
nuclear program.
    Rabbi Cooper, I want to drill down specifically with you 
since you mentioned student government associations. Are there 
any commonalities, methods, tactics, practices that groups are 
using to influence student government associations to pass BDS 
resolutions? And to what extent with those methods or tactics 
be impacted by the Anti-Semitism Awareness Act?
    Rabbi Cooper. Well I am not an expert on the student 
associations but when you read about what is going on, by the 
way not only in the United States, but also what is going on in 
Canada, in which you have activists who are exercising their 
First Amendment rights; let's say, who are anti-Israel, have a 
pro-Palestinian agenda, they get involved with student 
government. They stay involved. And many times they have 
leadership roles.
    Where this Act would help is when Jewish students are 
called out at meetings of the student government including at 
UCLA, not small colleges up in Canada as well. When Jewish 
students are called out, and they are basically told you do not 
belong in student government because in effect it is still 
loyalty. You do not really have a loyalty to the United States. 
Your loyalty is to a foreign entity Israel, and therefore you 
should be booted off the board. And there are other obviously 
kinds of actions that could be taken in terms of funding; 
certain kinds of speakers will get it, certain activities will 
get it.
    But I would say overall that if was just a matter of 
student activism, then the most important message we can send 
through Hillel and AEPi and all the other groups is make sure 
Jewish kids stay involved in student government. But when you 
have, as we have now had numerous examples, where Jewish kids 
are called out and say you do not belong here because you are a 
Jew, that student would be able to go to an administrator, and, 
if necessary, to the Department of Education to get redress.
    Mr. Gaetz. Mr. Greenblatt, from the Anti-Defamation League 
standpoint, how do you parse that distinction between 
legitimate advocacy that we can combat with other legitimate 
advocacy and speech that would run afoul of this act?
    Mr. Greenblatt. Thank you. I think it is really important 
to keep in mind that all this legislation does is require in 
the plain language that the definition be consulted by 
administrators when a case has brought. This does not mandate 
that they do anything. This does not handcuff them. This does 
not limit free speech. It simply says when an issue is brought 
to their attention that they consult the definition.
    Now, again, I think, as stated by another one of the 
witnesses, they we need to determine that there is indeed 
harassment taking place. But having a definition that codifies 
what is indeed a very complex problem would not in any way 
shape or form prohibit or, again, handcuff administrator to 
prevent free speech.
    Mr. Gaetz. I found the data that you have provided in your 
written testimony regarding the frequency of anti-Semitic 
events rising particularly troubling on college campuses. To 
what extent do we tie that solely to the activity on a college 
campus versus perhaps some nefarious forces influencing 
students as early as high school? Because I am starting to see 
more and more folks advocating for BDS-type advocacy which in 
my mind is modern day anti-Semitism at the high school level. 
Are you able to draw a nexus there?
    Mr. Greenblatt. So, Mr. Congressman, I think that is a very 
good, and I think it is an important question. So, there are 
two parts to it. To the first part: if we try to understand 
what is the causality and the increase in anti-Semitism I think 
extremists from both sides feel emboldened for different 
reasons vis a vis the political climate. And so, that is 
creating the conditions in which we are seeing an uptick in 
activity. And that is not something that is a function of some 
academic treatise. That is the reality and what we are seeing 
all around the country.
    But to your point, yes, I would agree that antibias, 
antihate content in schools, particularly at the high school 
level, can be an antidote to intolerance and that is another 
area that I think we should explore.
    Mr. Gaetz. Thank you, Mr. Chairman. I yield back.
    Chairman Goodlatte. The chair thanks the gentleman. The 
chair recognizes the gentlewoman from Texas, Ms. Jackson Lee, 
for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. To the 
ranking member, this is a very, very important hearing. And, 
Rabbi Cooper, I think it is important that students or young 
people and that any language that particularly suggests they do 
not belong here. I believe we are obligated to protect them and 
to protect their space of learning.
    So you have me committed on the idea that our young people 
must be protected. So, as I query, I am trying to find the 
comfort level, Mr. Stern, on the idea of the protected speech.
    And I am graduated from the University of Virginia Law 
School. You can imagine my horror as I talked to the president 
of the university just a week ago to reinforce the horror that 
occurred as they came uninvited to the campus and walked along 
a very sacred area for students while those students who had 
arrived early were looking out of their dorms or windows or 
standing on the front lawn--if anybody knows the structure of 
the University of Virginia--in complete horror and fear. I 
imagine amongst those students might have been Jewish students, 
African American students, Hispanic students, and others.
    And how tragic it is that rather than words of comfort, of 
course, there were words that came from the highest ranking 
office in the land that there were good people on both sides or 
both sides had violence.
    So, I think it is important that we use our approach to 
also be teachers. Because, at the same time, a young student at 
the American University became the first African American 
student happened to be a woman, president of student 
government, and then there was a series of hanging nooses and 
bananas to intimidate. And so, I think the question in this day 
and time is how do we educate and protect our students and 
provide free space and free speech for our academics?
    So, let me go to Mr. Clement who is raising the legal 
arguments here. Mr. Stern made a valid point of the hunt. So, I 
would not want to have a professor feeling that they were 
hunted if they had several viewpoints that I do not agree with 
but several viewpoints of the issues dealing with Israel, i.e. 
denying the Jewish people the right to self-determination and 
saying they should not have their own land, and as well other 
criticisms that would be waged against Israel but could be 
waged against others.
    So, how would I protect that professor who wants to engage 
in a deliberative and maybe provocative lecture and who may be 
either overtly or hidden have some negative views, conspicuous 
or nonconspicuous views about Israel and they are in an 
academic setting?
    Mr. Clement. Well, Representative Jackson Lee, I think that 
there is no fundamental incompatibility between free speech and 
free space. And I think the critical question in determining 
where to strike that balance is what do we think constitutes 
harassment and what do we think constitutes just free speech? 
And under existing law, as I understand it, there is a pretty 
demanding standard before we treat something under title VI as 
    But under title VI there is two questions. A, is there 
harassment that rises to that level? And then, second, even if 
there is, was it motivated by one of the forbidden bases under 
title VI: race, sex, national origin? And the Department is 
taking this position that anti-Semitism is a forbidden motive. 
And, really, all this legislation----
    Ms. Jackson Lee. And is it tied to criticism of a country. 
You do not have a right to exist. You do not have the right to 
your own land. Israel should not exist.
    Mr. Clement. And there is a variety of ways to try to 
define that term. This is the same definition, obviously, the 
State Department has already approved. I do not mean to dodge 
the question, but I think the way to protect free speech is in 
part to make sure we have the right definition for harassment.
    But once we have that, boy, it seems hard at least from a 
First Amendment standpoint to think that it is better to not 
have any definition of anti-Semitism, especially when it is 
obviously a contested term, and especially when at least some 
people seem to be taking cover and say, ``I can do anything I 
want and I do not have to worry about being labeled anti-
Semitic, because I will just be able to say, `No I am just 
anti-Zionist.' ''
    Ms. Jackson Lee. Mr. Greenblatt, could you quickly just, I 
have participated in your anti-hate outreach with the Anti-
Defamation League. I think they are some of the best in the 
country. And I also believe very keenly--and I am going to ask 
Mr. Stern questions so I am going to end quickly, and I thank 
the chairman for his indulgence--but I truly believe the 
investment in K to 12 is crucial and that the crisis of America 
is that we are not teaching anti-hate in the early years.
    As told to me by an African American family that went to 
McDonald's, and another child who happened to be white. Little 
child looked at them in horror, and was afraid of them as they 
came into the McDonald's. How can we deal with that? And then 
finally, Mr. Stern, if you could finish your answer to the hunt 
question, and how do we protect these students dealing with 
legislation like this which I hope to consider? Mr. Greenblatt 
would you quickly answer that?
    Mr. Greenblatt. Thank you very much for the question. I 
would say quickly, number one, let's be clear this definition 
does not prevent students or faculty or administrators from 
criticizing particular policies Israeli government. It does not 
do that. It simply defines when it becomes, indeed, anti-
Semitism which, indeed, often happens and needs to be dealt.
    With respect to training and education, Congresswoman I 
could not agree more. We need to, as a government, ensure that 
at all levels our kids are immunized from intolerance at the 
earliest age. It is an ounce of prevention really can go a long 
way to dealing with this disease of bigotry.
    Ms. Jackson Lee. I abhor----
    Chairman Goodlatte. Gentlewoman, your time has expired.
    Ms. Jackson Lee. Mr. Chairman I appreciate----
    Chairman Goodlatte. Mr. Stern could answer the question.
    Ms. Jackson Lee. I thank you. I abhor anti-Semitism. And so 
I do not want to foster it. I want to stop it.
    Mr. Stern. Right. Thank you. And very briefly: one thing I 
put my written testimony is that I have worked with various 
college presidents over the years. The first manual that we put 
out there was a situation that came up a hypothetical. A banner 
is put out of a window that says, you know, so and so, you fill 
in the blanks, not welcome here. There is no policy against 
banners out of dorm windows. What do you do? The president of 
New Paltz said, ``I would put out a larger banner from my 
office saying, `everybody welcome here.' ''
    We want anti-Semitism classes so students can understand 
what we are talking about as opposed to having a definition 
sitting on high. We want programs to give students the capacity 
to discuss these difficult issues when their senses of identity 
are wrapped up in something of perceived social justice. We 
want to use education as much as possible.
    What I worry about the hunting situation is it is going to 
chill speech; faculty members, for sure. But also think about 
students. When I was working at a national Jewish organization 
that had a pro-Israel policy, and I am a Zionist, I was mostly 
concerned with those students who were supporters of Israel.
    As a college professor, I am also concerned about Jews that 
are anti-Zionist, and they are left out in the cold here and in 
fact made targets. We have websites that go and hunt them and 
put dossiers on there. I think this will only encourage that 
type of activity.
    Mr. Franks [presiding]. And the gentlelady's time has 
expired. I now recognize the gentleman from Arizona, Mr. Biggs, 
for 5 minutes.
    Mr. Biggs. Thank you, Mr. Chairman, and I appreciate all 
the panelists being here today. This has been very interesting 
an important topic. And Dr. Trachtenberg talked about the 
potential for this definition to be interpreted overly broadly. 
And Mr. Greenblatt talked about this is a consultative 
definition. And so, I would like to inquire specifically about 
the definition. And I will go to you Mr. Clement.
    Providing a definition may be a good idea, it may be 
consistent with the First Amendment as you have argued and 
testified to today. My question is: is this the right 
definition? As some have indicated earlier in their testimony, 
is it potentially vague or can be interpreted overly broadly? 
Or is it clear and concise enough? Could it be worded better? 
If so, how? So if you could provide your opinion on that 
    Mr. Clement. So thank you for the question, Representative 
Biggs. I would say that there are probably other people on the 
panel who are better able to sort of have a debate about 
whether it is, you know, exactly the right definition. I am not 
sure that, you know, that it is necessarily the platonic 
    I do think, though, that it has the virtue of being a 
definition that the government is already using, as one of my 
sort of co-panelists said, it is a bit ironic that we are 
essentially willing to use this definition with every country 
on the planet except ours.
    But I guess the one thing I really have uniquely perhaps to 
contribute from a First Amendment perspective is, especially 
given that it is just a consultative definition and does not 
purport to be the definitive definition--you know, in the law 
sometimes you have definitions that say the following term is 
and sometimes you have definitions that say the following term 
includes--and this is more in the softer second version. I 
think particularly because it has that character, it sure beats 
the alternative from a First Amendment perspective which is no 
definition at all.
    Mr. Biggs. And I appreciate that. And I guess that is my 
question. I mean, is anybody on the panel think they have a 
better definition than this definition? I am inquiring to the 
entire panel. Dr. Trachtenberg.
    Dr. Trachtenberg. I am going to speak to that. It is not 
clear to me that----
    Mr. Biggs. Your microphone.
    Dr. Trachtenberg. Sorry. It is not clear to me, as Mr. 
Stern said, that a definition is required in this way. I mean, 
I teach entire courses on anti-Semitism and they go on for 15 
weeks, and we talk about this shifting definition of anti-
Semitism. You know, in the past it was based on religious 
assumptions about Jews as Christ-killers, and the Middle Ages 
Jews were repeatedly accused of seeking to recrucify Christ 
through all sorts of different methods and that led to anti-
Semitic caricatures of Jews.
    There are questions about Jews sexuality, whether Jews were 
even human beings or not. In the modern period, we saw it as a 
racial distinctions of Jews. You know, are Jews fundamentally 
biologically different? We saw it grounded in notions of race. 
There are questions of Jews as capitalist schemers or 
revolutionary subversives.
    So, this is what we teach to our students. Settling on one 
definition that is going to apply to all circumstances is just 
too broad and too vague and should not be the basis of 
    Mr. Biggs. But, I mean, I do not want to get into a debate 
with you because----
    Dr. Trachtenberg. Sure.
    Mr. Biggs [continuing]. I have other questions to ask. But, 
I mean, one of the things you have said previously today is 
that this is a very broad definition. Well, if you are going to 
make it a definition it would seem to me that is consultative 
in nature, it would it would by its nature become a broader 
definition that would allow for the movement of society as we 
see the impact of that definition as they are using it as a 
consultative idea as opposed to a very strict binding concise 
definition. Which is why I was asking you if there is any 
better definition that may be out there?
    Time goes by fast in 5 minutes. But I was going to come 
back and ask, and I will ask, Mr. Clement and to anyone else as 
well, do you know of any judicial opinion that provides 
definition of anti-Semitism even if not in a holding in its 
    Mr. Clement. I have not come across such a definition.
    Mr. Biggs. Okay. All right. And so, I guess I am going to 
go ahead and yield back the balance of my time since I am under 
10 seconds.
    Mr. Franks. And I thank the gentlemen and I recognize the 
gentleman, Mr. Deutch, from Florida.
    Mr. Deutch. Thank you, Mr. Chairman. First of all, I 
introduced this bill because I met with Assistant Secretary of 
Education for civil rights and asked how many ongoing 
investigations into cases of anti-Semitism were they pursuing? 
And the answer was zero. Number one. Number two, I appreciate 
all of the academic discussion and the references to the 
definition. Let me just read it for the record.
    ``Anti-Semitism is a certain perception of Jews which may 
be expressed as hatred toward Jews. Rhetorical and physical 
manifestations of anti-Semitism are directed toward Jewish or 
non-Jewish individuals and/or their property, toward Jewish 
communities, institutions, and religious facilities.'' That is 
the working definition then goes on to include contemporary 
examples and a fact sheet.
    Let me address some of what we have heard today. One, that 
any criticism of Israel would be anti-Semitic under this. It is 
not true. Everyone understands that that is not the case. That 
is number one.
    Number two, that Jews because once they were victims are 
immune from criticism, one, while I am offended by that, that 
has nothing to do with this piece of legislation. Three, that, 
somehow, this is really some effort to go after Jewish anti-
Zionists is the reddest of red herrings. And four, the 
suggestion was made that we have to look at all different 
sides. There are not all different sides to anti-Semitism. 
There are not.
    And the comment that was made that I find the most 
compelling is that a college campus is where students are 
trying to find their voice. I could not agree more. But here is 
the question: in all of this talk about free speech which we 
hold dear and which we have to be careful of this legislation, 
any legislation, would not violate or curtail.
    In all of that discussion, what is been missing is a 
discussion of the free speech of Jewish students who do not 
feel free to speak out. They do not feel free to support Israel 
openly. They do not feel free to join student government and 
talk about their Judaism and their involvement in their Jewish 
community. And there are examples time and time again.
    One last thing about this. I understand that if you look 
only in terms of numbers across all campuses, that while some 
of our academics here say, ``It is not a problem; I do not see 
it in my classroom. I do not see it on my campus. I do not hear 
about it.'' And then, 118 anti-Semitic acts relative to the 
number of students on college campuses may not seem that great.
    Why should we not be concerned about every one of those 
individuals and their ability to sustain and fight back and 
have a Department of Education that is willing to investigate 
those kinds of attacks? This one is really hard sometimes for 
me to understand. We know what is happening on college campuses 
and, yes, I am concerned about professors being able teach. I 
    But I also know that college students, like my own and 
their friends, who are on campuses who actually see what is 
happening, who will avoid parts of campus--I have heard from 
their friends--will avoid parts of campus because they are 
afraid if they are wearing a Jewish star that they are going to 
be shouted down. That is not students finding their voice. That 
is one student using his or her voice to stifle the free speech 
of that other student. Yes, Rabbi Cooper?
    Rabbi Cooper. Congressman Deutch, I just want to come again 
to this visual, because it is in real time. This was posted by 
a professor at Rutgers University on his Facebook page. We have 
a young girl, 19 years old, who went to Rutgers because she 
wants to get her degree in food science.
    This is the guy she is going to have to go and sign up for 
because right now there is absolutely no price to pay, there is 
no red line, nothing about someone in a position of 
responsibility who openly expresses such vile hate. And there 
is nothing to protect that freshman from pursuing her course.
    Mr. Deutch. And Mr. Goodlatte, am I so off base here? Have 
we been going down the wrong path, worrying about the 118 cases 
so far of anti-Semitism so far this year?
    Mr. Greenblatt. Congressman, you are dead-on. I mean, 
again, I know some people teach courses over the course of 15 
weeks. The ADL has been tracking this for over 100 years, and 
data does not lie. And what you pointed out, about the 
definition, is exactly correct.
    This does not inhibit the ability of an individual, 
student, faculty, or otherwise to criticize necessarily policy, 
but it does acknowledge, as that definition does--that 
definition, by the way, that was done in consultation with 
leading experts from academia and communal organizations, and 
it is used by our embassies around the world to track anti-
Semitic incidences.
    So, some might not like it in its abstraction, but in its 
practicality, I would submit to this committee it has been 
vital to our State Department doing its work to protect Jewish 
communities around the world.
    Mr. Deutch. Mr. Chairman, I appreciate it. Before I yield 
back, I would just finally make one last point. Again, 
criticism of Israel, Israel's government, and Israel's policies 
are more than fair. They are welcomed here just as they are in 
Israel. But when you take the position, it is one thing to 
criticize those policies, but when you take as your position 
the very suggestion that Israel, as a nation, does not have a 
right to exist.
    And you then try to impose that to shut down others, that 
is not a student fighting his or her voice. That is students or 
others on a college campus using their voices to silence others 
in a way that is wholly unacceptable, which this definition is 
simply trying to address. And I yield back, thank you.
    Mr. Franks. And I thank the gentleman, and I now recognize 
myself for 5 minutes. It was my turn, just for the record.
    This has obviously been a very compelling hearing here 
today for me. As it happens, a very good friend of mine is in 
the audience, Dr. Gary Bauer, who is the head of the Christians 
United for Israel, which I have been involved in that for a 
long time. And I think that he is perhaps the greatest friend 
of Israel in the Western World. So, I mean, the opinion is 
pretty high there. And certainly, I identify with so many of 
the comments here today.
    Some of us are deeply committed to the State of Israel and 
to the Jewish people. And consequently, when we are dealing 
with the area of anti-Semitism, which as obvious to any 
observer, has grown in a profound way in recent days, I would 
suggest to you that whether it is from the hard, hard right or 
the militant left, there are things that have come forward in 
recent days that are very disturbing and cry out for a 
response. And Rabbi Cooper's comments related to the necessity 
that someone just needs help here. And I understand that; I 
embrace that completely.
    The great challenge for those of us that deeply care about 
Israel, of course, is the more deeply we care, the more 
desperate we are to get the policy right. And I want to try to 
refer to the old medical term, you know, ``primum non nocere;'' 
``first, do no harm.'' And so, the challenge before 
policymakers right now is to come up with the right policy.
    And so, with that my first question would be to Ms. Nossel. 
Ms. Nossel, traditionally our Federal civil rights laws have 
not codified definitions or illustrative lists of 
discriminatory motivations. That is, our Federal civil rights 
laws prohibit discrimination based on race or sex, for example, 
without specifying exactly what a discriminatory motivation 
would be considered to be.
    Now, leaving that question to the courts and a case-by-case 
determination of the unique factual situations in context by 
judges and juries. So, you see, we have struggled with this for 
some time. If any particular definition of anti-Semitic 
motivation were codified in the U.S. Code, what kinds of 
definitions might be proposed for consideration as constituting 
a potential civil rights violation in relation to other 
protected classes? I hope the question came across clearly.
    Ms. Nossel. What definitions might other protected classes 
invoke to relate----
    Mr. Franks. Let me say it one more time. If a particular 
definition of anti-Semitic motivation were codified in the U.S. 
Code, what kinds of definitions might be proposed for 
consideration as constituting a potential civil rights 
violation in relation to other protected classes?
    Ms. Nossel. Well, it is a good question. I think it is hard 
to say, but I certainly think this will give rise to efforts by 
other groups to think about defining discrimination against 
them, you know, as broadly as possible so that manifestations 
of that discrimination are not ignored.
    In one example that comes to my mind that I have worked 
extensively in my career is with respect to Muslims around the 
world. In an effort that they made to try to secure an 
international legal ban on the so-called defamation of 
religion, which really related to cartoons depicting the 
Islamic prophet, Muhammad, which they regard as a very 
particular and hurtful offense.
    And so, when those cartoons were published, they went to 
the U.N. and sought an international treaty banning the so-
called defamation of religion, which they view as kind of a 
priori form of very virulent, anti-Muslim sound sentiment. And 
they were concerned that the rest of the world did not see it 
that way.
    So, I think that is, you know, one obvious area. It is 
offensive. It is not universally recognized to be as offensive 
as some Muslims regard it to be. There are other Muslims who do 
not regard it as offensive and take grave exception to that 
effort. But I think that is one manifestation.
    And you know, Ken has brought up others. You know, what 
about, you know, it was Palestinian Americans, and they were 
calling into question the validity of a Palestinian State. 
Would they want to seek to define that as a form of, you know, 
discrimination against them? Or arguments against affirmative 
action that, you know, could be construed as calling into 
question the validity of the presence of certain students on a 
campus. You know, might that be defined as a form of 
    So, I think it is hard to know, you know, where it would 
end. But opening it up, I think, does give rise to serious 
    Mr. Franks. Well, thank you. You know, sometimes one of our 
challenges here is when there is a complete lack of common 
decency sometimes, when it comes in these situations, it is 
hard to know how to respond to that best legislatively. So, Mr. 
Stern, I will direct my final question to you, sir. I 
understand, according to your testimony, that you wrote the 
guidelines for the State Department. Essentially, that you were 
the lead writer on it.
    Mr. Stern. I worked very closely with my colleague, Andy 
Bleecker, who did the politicking and negotiating. I was the 
lead drafter. I was the one who probably wrote 75 to 80 percent 
of it and got the other experts and negotiated, you know, which 
parts to put in----
    Mr. Franks. Given that, do you think that that guideline 
should be something we should consider, to codify and statute? 
I am asking a pretty hard question here. But do you think that 
something like that would be appropriate in statute, given the 
discussion today?
    Mr. Stern. For a campus, absolutely not. That was not the 
purpose that it was designed for, and, you know, I encourage 
the State Department to use it in its reports and bilateral 
relations. I worked with Rabbi Baker on a hate crime training 
program in New York. Those things were fine.
    A campus is a different venue. It is about ideas. It is 
about giving students and faculty the opportunity to think 
outside the box, to be wrong, and not to measure what they are 
saying against some definition that is constitutionally 
enshrined. So, particularly for this venue, I think it would be 
an atrocity.
    Mr. Franks. Well, thank you all. I am sorry. I am going to 
have to go to the next guy here, but I want to thank you all, 
and God bless Israel. And Mr. Cicilline, I recognize you, sir, 
for 5 minutes.
    Mr. Cicilline. Thank you to all the witnesses for this 
really thoughtful discussion. I think it is very important to 
say at the outset that, it is my view at least, that this spike 
in anti-Semitism is something which should be of grave concern 
to all of us. And we should determine the best and most 
effective way to respond to it, to eliminate it in this country 
and around the world.
    I think it is important to consider the context of this, 
and that is that we have an administration that, I think, in 
many ways has stoked this environment by refusing to speak out 
against anti-Semitism, white supremacy, and xenophobia.
    President Trump unapologetically came to the defense of 
white nationalist protesters in Charlottesville who chanted 
anti-Semitic slogans. Former White House advisor, Steve Bannon 
has made a career out of promoting racist, anti-Muslim, and 
anti-immigrant ideas. Another former Trump advisor, Sebastian 
Gorka, was found to have ties to a Nazi group.
    And this administration has also disappointingly failed to 
appoint an envoy of the office to monitor and combat anti-
Semitism through which the U.S. encourages foreign governments 
to protect vulnerable Jewish communities around the world. So I 
think we would be ignoring this sort of elephant in the room to 
not understand the context of this spike and the gravity of it.
    I also find it kind of ironic in a lot of ways where in our 
tradition is, by the way, a free and unhindered exchange of 
ideas that humanity seeks the truth. And you only need to go to 
the Talmud to see the exchange of ideas on every page by the 
rabbis. So, this idea of respecting and honoring the free 
exchange of ideas is an important Jewish value, and obviously 
an important American value.
    So, I guess my kind of simple question is--I think Rabbi 
Cooper said, you know, when there is something that says, you 
know, you do not belong here because you are a Jew; that seems 
sort of an obvious anti-Semitic declaration. I think everyone 
would agree that criticism of Israel and policies of Israel and 
disagreement is not anti-Semitic as a principle.
    And so, if we could have a definition which attempted to at 
least identify anti-Semitic activity, in the way that Rabbi 
Cooper described it, but protected legitimate policy criticism, 
is that something we could do successfully? I recognize that it 
would open the same kind of discussion with other categories.
    Assuming we were prepared to accept that risk, I also 
reject the notion that well, just--with all due respect to Mr. 
Greenblatt, who I respect enormously--it is not binding. It 
matters. We ought to get the definition right if we are going 
to direct people to consult it.
    So, my question for the panel really is, am I 
oversimplifying this? Could we craft a definition that strictly 
attempts to identify anti-Semitism, free from criticism or 
disagreement on policy, as they say, or is that impossible to 
achieve? Dr. Trachtenberg, I will start with you.
    Dr. Trachtenberg. I think it is an impossible task. I think 
if we asked all nine of us for our definition of anti-Semitism, 
we would have nine variants on a theme, certainly. I think we 
would all agree that the core of anti-Semitism is hating Jews 
simply for being Jewish. If you go much beyond that, you are 
going to start entering into contested territory; contested 
territory within the Jewish community itself among scholars of 
anti-Semitism, we are going to enter into that territory.
    So, if you want to have the most narrow definition, I think 
that is a baseline from which we all agree. Once you go beyond 
that, we are going to enter into very contested waters, and the 
fact that it is contested means that we should allow people who 
study this issue to have the opportunity to have all the 
debates and all the conversations that they need in order to 
keep fleshing this out.
    As we do with a page of the Talmud, keep turning it over 
and turning it over again to discover all the truths and 
everything that we can identify within it. Thank you.
    Mr. Greenblatt. I would submit, Mr. Congressman, that it is 
not impossible, that my professionals do it every single day, 
and to clarify, the ADL was also involved in writing that 
definition that the State Department uses, and we think it 
    But ultimately, who are the arbiters of this? Let me 
introduce you to the families whose children have been bullied 
and have had pennies thrown at them. Let me introduce you to 
the parents whose children had their lockers defaced with 
    Let me introduce you to the families themselves who have 
been harassed because of their religious garb or coming out of 
a synagogue. Let me introduce you to those people and you can 
ask them whether indeed there are nine different definitions or 
there is one.
    So, if you look at the definition that our public servants 
use every day, Mr. Congressman, it does not say criticizing 
Israel is anti-Semitism. That is not what it says. Period.
    Mr. Cicilline. Mr. Stern.
    Mr. Stern. I was going to say that the examples that Mr. 
Greenblatt gives are okay, but you do not need a definition to 
get there. What you need in these situations is a clear 
understanding that Jews are selected to be victims of 
harassment because they are Jewish.
    And it does not matter whether that person is thinking of 
this definition or that definition, or is philosemitic, or 
just, you know, wants to do it because they think it is fun. If 
a Jewish person in a campus is being harassed because they are 
being selected because they are Jewish, that is sufficient. And 
you do not need to open up this whole other can of worms.
    Mr. Cicilline. So, could that be the definition?
    Mr. Stern. Well, in the case that I brought in the Vestal 
District, nobody talked about a definition. Nobody talked about 
that you have to show that a swastika is anti-Semitic. It is 
clear that these kids were picked upon simply because they were 
    And I would add that, you know, again, we talk about the 
pro-Zionist, pro-Israel students. I have also seen examples 
that break my heart on campus, too, where a kid who is trying 
to figure out where they think about Israel and all this and 
should it exist.
    And what is happening with the Palestinians, are being 
called traitors or Kapos and some who were wearing yarmulkes, 
saying, ``Take that thing off.'' That offends me just as much.
    Mr. Cicilline. Thank you. Thank you, Mr. Chairman, for the 
indulgence, and I yield back.
    Mr. Franks. I thank the gentleman. I am left wondering how 
being the first President to stand in front of the Western 
World and pray projects some anti-Semitic sentiment. But I 
    Mr. Cicilline. Would you like me to answer that, Mr. 
    Mr. Franks. No. I call upon the gentleman from Texas, Mr. 
Gohmert, for 5 minutes.
    Mr. Gohmert. Well, I can help you out. Anytime a 
conservative Jewish person cares to speak on a college campus, 
they stand a much greater chance of being banned or being 
labeled as a hater by the haters.
    Well, my friend, Caroline Glick. She believes what the 
Bible indicates was the Promised Land to the children of 
Israel, and because of that, she canceled at University of 
Texas, right in my own State. It was not because she was 
Jewish, it was because she was a conservative Jewish person. 
And say, George Soros were to come and do as he often does and 
beat up on Israel or Netanyahu, he would never be banned from a 
college campus. He would be welcomed with open arms. So, let's 
be real here. We are talking about particularly conservative 
Jewish people.
    Now, when it comes to school children, when it comes to 
people that get swastikas put on their lockers and things like 
that, or vile things said about them, that seems to be just 
because they are Jewish. And I have got to tell you, I majored 
in history in college. I never dreamed we would get back to the 
level of anti-Semitism that we are seeing in Europe today, in 
Germany today.
    And I brought up to some German ministers back in August, 
when some of us were visiting over there, how ironic it seemed 
to me to be that you had Germany that wanted to show--and I am 
speaking to ministers of the country, so I am being 
respectful--but how Germany since World War II, since the 
Holocaust, has gone out of their way to try to show how open 
and loving they are to all peoples.
    So they bend over backwards to bring in what they think are 
Muslim refugees, some of which were not--they were there to, 
you know, bring down Europe as the Battle of Vienna prevented 
previously--but you know, I said, ``So, you are bringing in 
people who are raised to hate Israelis, to hate Jewish people, 
and by virtue of your act to show how loving and open you are, 
you are bringing in people that make you appear to be anti-
Semitic again.''
    And of course, that raised some hackles and got some people 
upset. But it is certainly the way it appears.
    There are college campuses that are going out of their way 
to try to appear so embracive of Islam that they become anti-
Semitic. And when my friends condemns--and I mean true friends, 
Bannon and Gorka, they were called--these guys are not anti-
Semitic, and they are not anti-Muslim, but they certainly 
recognize that there is a portion of Muslims who believe the 
United States and the Western civilization must be brought 
    And there is nothing wrong with saying that and believing 
that, and nobody should have rules pulled out to prevent them 
from speaking for saying that.
    I mean, for heaven's sake, Brandeis University withdraws 
their offer of a doctorate to Ayaan Hirsi Ali. I mean, she is 
an atheist, as I understand it, but what a courageous person. I 
mean, what happened to Brandeis? I mean, have they forgotten 
why they were founded?
    I know Harvard and Yale forgot how they were founded. They 
do not want conservative Christians or conservative Jews coming 
in and speaking. But they welcome anybody that will come in and 
bash Israel. So, I welcome all the comments I have been hearing 
from people across the aisle condemning anti-Semitism, but I 
would hope my friends will be just as upset when it is a 
conservative Jew.
    And as far as the boycott that seems to be growing across 
the world, and particularly in Europe, of anything made in 
Israel, it is just another effort to slam Israel. But I have 
stood there at the tomb of King David's father, Jesse, in 
Hebron. Hebron also is where Abraham, and Sarah, and Isaac, and 
Jacob, and their wives are buried, right there.
    And I am supposed to say that that is absolutely not 
Israeli territory? And we should ban anything coming from that 
area? That is ridiculous, and we need to be more realistic in 
our assessment of what truly is anti-Semitism; it applies when 
it is a conservative Jew. Thank you. I yield back. I see my 
time is up.
    Mr. Franks. I thank the gentleman, and I now recognize Mr. 
Raskin for 5 minutes.
    Mr. Raskin. Mr. Chairman, thank you very much. The very 
first thing that I did as a newly elected member of the House 
of Representatives was to organize a tour of the freshman 
class, the Democrats and Republicans both, to the Holocaust 
Museum, and we spent 2 hours there. And I believe very strongly 
that the touchstone of our politics has got to be in opposition 
to anti-Semitism and racism and the other hatreds that made the 
last century such a nightmare for so many people.
    I am also a professor of constitutional law, so I am very 
sensitive to the free speech concerns that have been raised by 
many of the witnesses today. But I want to try to look for some 
common ground coming out of the panel, and I want to start with 
    Title VI prohibits discrimination based on race, color, and 
national origin, but not on religion. Does everyone on the 
panel agree that religion generally should be covered under 
title VI? And forgive me, I have so few minutes and there are 
so many of you, but if you would just, if you do not mind going 
down the aisle, does everybody agree that religion should be 
covered? Yes, no, or no comment will suffice. Starting with 
Rabbi Baker, if you would.
    Rabbi Baker. Well, my focus is Europe and not here, but I 
think that you open an entirely new avenue of debate when you 
say it should cover religion.
    Mr. Raskin. Yeah. Okay. I was hoping for yes or no because 
I have so little time.
    Ms. Nadell. Okay. Yes.
    Mr. Raskin. Okay.
    Rabbi Cooper. Yeah, I am not sure I would address the issue 
as we are here today. I think it would expand it properly so, 
but it would be a whole other discussion to come back at 
another time.
    Mr. Raskin. Okay.
    Dr. Trachtenberg. I actually agree with Rabbi Cooper here 
that this has actually opened up a larger set of issues that we 
need to address, not a simple yes or no.
    Mr. Raskin. Okay. Okay.
    Mr. Clement. And I would agree. It is complicated. You have 
other things, like the Free Exercise Clause and the Religious 
Freedom Restoration Act. I mean, there is a lot of things that 
make it complicated.
    Mr. Raskin. Okay.
    Ms. Hagee Parker. Likewise, it is outside the scope of our 
organization and its mission.
    Mr. Greenblatt. It is complicated. I think it is 
complicated as well, but religion should certainly be 
    Mr. Raskin. Okay.
    Ms. Nossel. I think religion should be protected, but in 
ways that are careful to be compliant with other constitutional 
and legal provisions.
    Mr. Stern. And I would agree with that. It is particularly 
about harassment, as opposed to religion.
    Mr. Raskin. Okay. It seems like there is a category of 
speech that has been heavily contested here which is that 
relating to the Israeli government or the Israeli State, in 
terms of its anti-Semitic content. But would everybody agree 
that, for example, what took place in Charlottesville is anti-
    But does anybody believe that, for example, Richard 
Spencer, who now seems to be on a nationwide speaking tour, 
does everybody agree that he does have a First Amendment right 
to appear at least on public campuses? Does anybody think that 
he does not enjoy a First Amendment right to speak on public 
university campuses? Everybody seems to agree that he does, 
    Mr. Greenblatt. Mr. Congressman, unless he incites violence 
against people.
    Mr. Raskin. Unless he incites violence. Yeah. But in terms 
of the content of his speech, that he should not be banned for 
that reason. Okay.
    So, I want to go to the question that has tormented the 
country for a while now about statues of Confederate soldiers, 
Robert E. Lee and Jefferson Davis, and so on. I have got no 
doubt that the vast majority, or I would dare say all racists 
support continuing keeping those there.
    But a lot of people who support keeping those statues up 
are not racist, right? So, would it not be a problem to use as 
indicia of racism whether or not someone supports having those 
statues present there? And perhaps----
    Mr. Stern. I would agree with that. I mean, my view is not 
germane to this exactly, but if you remove all the statues, 
people do not see the history. I would rather put them in 
context and let them be used as a way to explain why they were 
put up in the first place to, you know, support segregation and 
so forth----
    Mr. Raskin. But back in----
    Mr. Stern [continuing]. That would not be a hateful view.
    Mr. Raskin. Okay. All right, now let me come to this now. 
So, my dear colleague, Mr. Deutch, read the operative 
definition that he had. I might even broaden it a little bit 
just to say that anti-Semitism is discrimination, prejudice, or 
hostility against Jews. It seems like what is getting everybody 
into this seared in controversy is the illustrations or the 
examples that were offered in the State Department policy.
    But does anybody know of an antidiscrimination statute that 
has been passed by Congress that includes the illustrations or 
examples? Because to my knowledge, there is not one. And so, 
does anybody think that those illustrations or examples are 
necessary to the definition?
    Rabbi Baker. Yes.
    Mr. Raskin. Okay. Can you explain, if you would, Rabbi?
    Rabbi Baker. Well, the whole idea of the examples was to 
show how it plays out in a practical way so people who have a 
responsibility to address the problem will understand it.
    Mr. Raskin. Right. Let me just cut you off there for a 
second, because I have so few seconds left. But when we wrote 
the title VII Statute, when we talk about race discrimination 
or sex discrimination in the workplace, we lead it broad and we 
let the courts work it out, whether or not there is a 
discriminatory animus or motive.
    So I am just thinking in terms of trying to keep 
civilization together here and to keep our unity together, why 
would we get into a series of controverted examples that are 
going to divide people, as opposed to stating what the 
principles are and then allowing those to be worked out in 
practice? I do not know, Dr. Trachtenberg.
    Rabbi Baker. When Congress passed the----
    Mr. Raskin. Let me just go to Dr. Trachtenberg, and I am 
happy to come back to you.
    Rabbi Baker. Because in 2004, in the Global Anti-Semitism 
Review Act, Congress said that anti-Semitism has at times 
``taken the form of vilification and Zionism.''
    Mr. Raskin. Sure. Okay. So, but I am talking about a 
discrimination statute. Dr. Trachtenberg.
    Mr. Franks. The gentleman's time is expired, but Dr. 
Trachtenberg you can answer.
    Dr. Trachtenberg. I am, thank you. Well, the examples are 
particularly problematic against the idea of having a 
definition which is going to box us in in terms of what anti-
Semitism is, is really at the root of our discussion here.
    Mr. Raskin. Thank you very much. I yield back, Mr. 
Chairman. Thank you.
    Mr. Franks. I thank the gentleman. And now, the gentleman 
from Texas, Mr. Ratcliffe, is recognized for 5 minutes.
    Mr. Ratcliffe. Thank you, Chairman. I appreciate all the 
witnesses being here today. You know, our Nation's college 
campuses are supposed to be a marketplace of ideas where 
students from all kinds of different backgrounds can learn new 
perspectives. Based on everything I have heard, it seemed like 
a lot of our college campuses have become bastions of self-
proclaimed political correctness, and that in turn has led to 
the outright harassment of some students based on their 
    And I think that is readily apparent in the treatment of 
Jewish students across the country. I refer to the report--I 
think it was Mr. Clement, it was in your testimony--about just 
this year, 1,299 anti-Semitic incidents from January to 
September. I think, again, it is troubling that political 
correctness seems to have allowed anti-Semitism to flourish. 
But again, I appreciate the thoughtful discussion here from all 
the witnesses as we try to get back to having our institutions 
of higher education be that marketplace for ideas while also 
stemming the rising tide of anti-Semitism. I appreciate all of 
your perspectives today.
    Mr. Clement, I know one of the things that you focused on 
in this Anti-Semitism Awareness Act, and, you know, I read your 
anticipated responses to the First Amendment concerns and 
regulations of speech. Is it oversimplification to say that 
having a definition, as purposed within the Act, is trying to 
find that line between speech that is anti-Zionist versus 
speech that is anti-Semitic?
    Mr. Clement. I think that is what the definition is trying 
to get at, Representative Ratcliffe. You know, there is a 
particular concern in the context of anti-Semitism that I am 
not sure is present in some of the other discrimination 
prohibited by title VI, which is you do have this ability for 
people to essentially cloak it and say, ``Oh, it is not anti-
Semitic, it is just anti-Zionist.'' And so, I think the 
definition is trying to get at that.
    You know, the other thing, and I know a couple of questions 
have sort of, you know, kind of gotten to the question of do we 
really need a definition here? And what I would say to that is, 
you know, in the abstract it might be fine to have anti-
Semitism defined on a case-by-case basis over time, but to have 
a case-by-case definition you need cases. And one of the things 
I think everybody is seeing here is that it is not that there 
are not anti-Semitic incidents on campuses, and yet there are 
no enforcement actions.
    And so, I do not think we have, sort of, the luxury of just 
letting, you know, the Education Department sort of develop the 
definition over, you know, the course of a number of 
enforcement actions. I think, in a sense, we need to jumpstart 
the process. And I think the definition is designed in part to 
do that, and then in part to guide the discretion of the 
Education Department officials.
    Mr. Raskin. Well, I think I agree with you. I think there 
needs to be a specific point where we can point and have a 
determination of where criticisms of Israel cross over into 
anti-Semitism. And I go back to that report that is referenced 
in your testimony about the 1,299 incidents, and I also go to 
Rabbi Cooper's written testimony that the Department of 
Education's Office of Civil Rights has never found a civil 
rights violation in any claim filed on behalf of Jewish 
    So, put on your Solicitor General hat. If you were making 
this argument to a court, is the fact that you have all these 
reported incidents, yet no violations found. It would seem like 
that that is a violation of equal protection under the law for 
Jewish students based on that type of evidence.
    Mr. Clement. I think it would sure be a difficult thing for 
any Solicitor General to try to explain, and I think it is the 
kind of thing that would give rise to an inference that 
something other than just looking for the exact right case and 
prosecutorial discretion is going on.
    Mr. Raskin. Rabbi, I want to let you weigh in on that as 
    Rabbi Cooper. Congressman, let me make just two points very 
quickly. This definition, you know, had an evolution, starting 
with the OSCE, 56 out of 57 countries, of course, minus Russia, 
eventually agreeing on, and the evolution down to our 
discussion this morning. It is probably the best definition 
that we are going to get, and it is the most relevant one.
    To really summarize, and I am pleased both Mr. Franks and 
the chairman is here. You have the wall-to-wall leadership of 
the American Jewish community here. We came, I would say, hat 
in hand. We have a problem. We need your help. And I think what 
we would respectfully ask for is after the appropriate 
deliberations, that with all of the Congressman Raskin and 
former professor, all of these important questions that have 
been raised, we need to move the ball forward. We hope you will 
send this to the floor of the House for further deliberation.
    I have no doubt that if it is passed there will be many 
challenges, just by virtue of the testimony you heard today. 
But you have the entire Jewish leadership of the American 
Jewish community coming together united, something that 
apparently nothing less than this great committee has been able 
to achieve. And we really hope that after the appropriate 
deliberation it will be moved forward for a vote on the floor.
    Mr. Ratcliffe. My time is expired, Rabbi, but I will tell 
you that I agree with that sentiment. And if I was sitting on 
the top row, I might have a little more influence in making 
that happen. But I appreciate you all being here today.
    Chairman Goodlatte. Thanks, gentleman. And I recognize the 
gentleman from Illinois, Mr. Schneider, for 5 minutes.
    Mr. Schneider. Thank you, Mr. Chairman. Thank you for 
calling this important hearing. I want to thank all of the 
witnesses today for sharing your perspectives. I do want to 
take the prerogative in welcoming in the gallery Lisa Shuger, 
who represents the Jewish Federation of Chicago, where I 
    As I have listened to the testimony today, the questions, I 
cannot help but listen as a Jew. As a parent of Jewish college 
students, one current and one recently graduated, I represent a 
State in which at least six of our universities have recently 
experienced anti-Semitic incidents.
    I am, personally, gravely concerned about the recent 
significant rise in anti-Semitism on our campuses, in our 
communities, in fact, around the world. Mr. Greenblatt, you 
said, we must count each and every one of the incidents and 
leave none of them to go unanswered. What we are seeing on 
campus, I fear, is an increasingly organized, concerted, and 
wellfunded effort to create a hostile environment for Jewish 
students that publicly express their Judaism as well as their 
support for the Jewish State.
    It does not take a lot of events or a lot of incidents to 
make it difficult for Jews to feel comfortable in the academic 
environment where they are, as I think we have all agreed, 
seeking the opportunity as every student should have to explore 
new ideas, to find their voice, and to reach their own 
conclusions. That is what the university is for. But I do worry 
about this difference.
    So maybe I will start with you, Mr. Greenblatt. Do you see 
a difference between free speech and a concerted effort to 
create a hostile environment?
    Mr. Greenblatt. First of all, Mr. Congressman, thank you 
for the question. As a former resident of the North Shore of 
the Chicago area, it is nice to see you here today. I think it 
is safe to say that there are challenges, again, as I had 
stated in my oral testimony from both what the Congressman 
Franks called the ``hard right'' and sort of elements of the 
militant left. Neither side of the ideological spectrum is 
exempt from intolerance.
    But whether they are organized campaigns, or they are 
spontaneous actions, we need to be clear about the fact that, 
again, title VI does not explicitly protect these Jewish 
    And considering the number of cases we are dealing with on 
campus today, the stat that the Congressman Deutch represented 
was correct. There were investigations led by the Office of 
Civil Rights, Department of Education, case of anti-Semitism. 
    Let me repeat, that number is zero. We believe having a 
definition will make it easier for whoever is administering the 
office, whether it is indeed Mr. Marcus or someone else, to 
ably do their job and ensure that Jewish students have the same 
protection that other students have.
    It does not preclude political speech. It does not limit 
freedom of expression. It simply ensures the definition that we 
also worked on is utilized by policymakers and campus 
    Mr. Schneider. Mr. Stern.
    Mr. Stern. I just want to share a short anecdote. I was 
doing a training for students at Columbia a number of years ago 
on anti-Semitism. We started at 7:00 and we were still talking 
at 11:00, and they said this was the first time they felt open 
to speaking about Israel.
    I said, ``Oh that is interesting. Is this the only issue 
that you have trouble speaking about openly?''
    ``Your friends at other campuses have a problem, too?''
    Everybody is sort of worried about where they are going to 
step into a landmine in the context today. And what I worry 
about this legislation is it feeds into that rather than breaks 
it down.
    I think the answers are not with legislation that is going 
to create an additional sense of, you know, these are folks 
here and those are folks there. But initiatives that campuses 
are lacking on to how do we have these difficult discussions. 
There are very few classes on anti-Semitism.
    I think if you have more classes on anti-Semitism, students 
are going to understand the issues that combine us and divide 
us here today much more deeply and it will affect the campus 
environment. Those are the things that need to be done, and not 
this type of legislation.
    Mr. Schneider. Well, I appreciate that, and I agree that we 
need more classes on anti-Semitism. I think that would be a 
beneficial step forward. But that does not change the fact that 
there are efforts on these campuses to make these Jewish 
students feel profoundly uncomfortable, unwelcomed. I think it 
was you who said putting out a sign, whoever you are, saying, 
``You are not welcome here.'' I have been to campuses where the 
signs say, ``Hate is not welcome here.'' I think that is a much 
better sign.
    Mr. Stern. That is right. And the question is, how do you 
help administrators? And you know, Mr. Greenblatt has said 
that, too, in his testimony: how do you help them think through 
cultivating that environment in which you have the capacity for 
students to be wrong, to say what they think, but then others 
to identify what is hateful and then to teach about it?
    There should be no question that Israel and Palestine, as 
contentious as that is, should be an ideal subject for getting 
students to think about how do you deal with the competing 
narratives and competing histories? How do you look at 
identity? How do you look at the equities, and so forth? Rather 
than just feed them into, if something is said about Israel 
that is anti-Zionist, that that is anti-Semitism and that ends 
the matter. It should be the beginning of the questions, not 
the end of it.
    Mr. Schneider. Right. Rabbi Cooper, my time is expired 
    Rabbi Cooper. Just very quickly. Classes alone and 
dialogue, as welcome as they are, will not protect your kids on 
campus. And when there is an incident--and we have now heard 
over the last few hours, there are many--we need the help of 
our government to ensure that Jewish students are afforded the 
same protections as everyone else on campus.
    Mr. Nadler. Will the gentleman yield for a second?
    Mr. Schneider. I will yield.
    Mr. Nadler. Okay, great. I just want to make clear for the 
record that a mistaken statement a moment ago. Not every Jewish 
group supports this bill. I have a letter here, for instance, 
from J Street U opposing it, and there are groups that do not 
support the bill and the groups that are. So, I just wanted to 
clear that up for the record. Thank you.
    Mr. Schneider. My time has expired. I wish I had more, but 
I will yield back.
    Chairman Goodlatte. The chair thanks the gentleman and 
recognizes the gentleman from Colorado, Mr. Buck, for 5 
    Mr. Buck. Thank you, Mr. Chairman. Dr. Trachtenberg, quick 
question. In 2013, did you sign a petition to boycott a 
conference at the Hebrew University in Jerusalem, and did the 
petition state that the Hebrew University is deeply complicit 
in the occupation, settler colonialism, and apartheid?
    Dr. Trachtenberg. Yes.
    Mr. Buck. I cannot hear you.
    Dr. Trachtenberg. Yes, I did.
    Mr. Buck. Okay. And did you also vote for the Modern 
Language Association to boycott Israel?
    Dr. Trachtenberg. I am not a member of the Modern Language 
    Mr. Buck. But did you vote for a boycott of Israel with 
that group?
    Dr. Trachtenberg. I would not have had the capacity to vote 
for it because I am not a member of the MLA.
    Mr. Buck. So, that is a no?
    Dr. Trachtenberg. No.
    Mr. Buck. And Mr. Clement, I wanted to ask you a question. 
And I guess I want to respectfully point out something that my 
colleague, Mr. Raskin, said. He said that all racists are in 
favor of keeping the Civil War monuments, to paraphrase, and 
that indicates something to me that is deeply troubling. What 
he is really saying is that racists have to be white in this 
country. There is no such thing as a black racist that might 
want to take down those monuments. And I think when we look at 
this issue, we look at it through our own lens, through our own 
    And that is what, I think, we are really struggling with 
here, is how do we respect the Constitution and at the same 
time deal with a deeply troubling issue on college campuses, 
and that is the issue of anti-Semitism, and bigotry, and 
    And my understanding is that there is a Supreme Court case 
in 1999 that gave us a definition, the Davis case, and I just 
want to quote that and then ask you a question. It found that 
``peer-on-peer harassment in the educational context is so 
severe, pervasive, and objectively offensive and that so 
undermines and detracts from the victim's educational 
experience, that the victim students are effectively denied 
equal access to an institution's resources and opportunities.''
    If that is the Supreme Court definition, why do we not use 
that definition in this bill and instruct the Department of 
Education to proceed in that way?
    Mr. Clement. So, Representative Buck, I think that is, you 
know, a very fair question and I think that what I would say is 
that right now I assume that in administering, you know--it is 
slightly different context, title VI versus title IX, and the 
like--but I would assume that that is in fact the standard that 
the Education Department is using right now in administering 
title VI----
    Mr. Buck. Well, it sounds like it is not using any 
standard, because it has not done any work in this area, in 
this desperately needed area.
    Mr. Clement. Well, but I think there is two issues to keep 
separate. And one is, what is the level of conduct that rises 
to the level of harassment? And then, the second question is: 
if there is harassment, then title VI still does not prohibit 
it, if it is not on the basis of race, national origin, and the 
    And so, what we are really struggling with in this 
particular context is to try to get a definition of anti-
Semitism that will work for the motive part of the inquiry.
    I do not think this bill is designed to really move the 
needle on what level of harassment is necessary to sort of 
bring a title VI action. And I think, though, as I have tried 
to suggest, that, you know, that question probably has much 
more to do with the First Amendment than the question of how we 
define anti-Semitism.
    And I would say, from a First Amendment perspective, we are 
much better off having government officials with a definition 
than without a definition.
    And just to refer to, just for a second, the statistics we 
have heard a lot about. So, there are zero cases currently 
being brought. Now, in the event that the reason zero cases 
have been brought is because not one of the cases that they 
investigated rose to the level of harassment under the Davis 
case, then that would be an acceptable result from a First 
Amendment standpoint. That would be the reason these cases are 
not being brought, is that they do not rise to the level of 
    Now, I strongly doubt that is what is going on, and if the 
question is, if some subset of these hundreds of cases rose to 
the level of harassment, and they were not being brought 
because of some confusion about what constitutes anti-Semitism, 
that is the problem. That----
    Mr. Buck. I am going to interrupt you just for a second, 
because I want to get Mr. Greenblatt's view on that. Which is 
it? He just gave you two options.
    Mr. Greenblatt. Well, I cannot say definitively because I 
am not familiar with every case----
    Mr. Buck. Sure you can.
    Mr. Greenblatt. I do not know all the cases they are 
looking at, but I can say, indeed, it is, you know, it would be 
reasonable to look at those cases and determine whether or not 
the lack of a definition prevented the office from doing their 
job effectively with respect to these specific incidents where 
Jewish students are affected.
    Mr. Buck. Thank you. My time is up, and I yield back.
    Chairman Goodlatte. The chair recognizes the gentleman from 
Georgia, Mr. Collins, for 5 minutes.
    Mr. Collins. Thank you, Mr. Chairman. You know, I think 
this has been an issue in discussion, listening to, you know, 
putting nine people on the panel and all going at it. Wow, this 
is like throwing the ball and having us run and seeing who wins 
at the end of the day.
    But it has been good to discuss this because this is one of 
the things, anti-Semitism and other forms of discrimination, 
are abhorrent everywhere. It does not matter where they are 
located, and this is an issue that is particularly troubling 
when bigoted acts and harassment prevent students from 
basically accessing education.
    But I want to focus back because I think--I look like I am 
probably the last one here--to going back to one of the 
arguments that I have heard about that is against this in many 
ways is the First Amendment issue. This is a First Amendment 
    Mr. Clements, you have been in front of the Supreme Court 
more than any of us here, and also by the way my Legislative 
Director, Sally Rose Larson, who took Constitutional Law for 
undergrads, she says hello, but she is also glad she is not 
here. She did not want to be tested on this. So. We appreciate 
    Mr. Clement, you have argued these cases and I think you 
might be in need to discuss this. I want to discuss it from 
this level. Title IV of the Civil Rights Act prohibits 
discriminatory conduct, not speech. Correct?
    Mr. Clement. Title VI, that is right. It is directed at 
harassment, as we were discussing.
    Mr. Collins. Okay. What role does the evidence of 
discriminatory speech play in analyzing allegations of a 
violation of the Civil Rights Act?
    Mr. Clement. And that is where the Wisconsin v. Mitchell 
case makes quite clear that evidence of--including speech--can 
be used for an evidentiary purpose. And so, even though I 
think, you know, in Wisconsin v. Mitchell, you had nine Supreme 
Court justices that are very protective of the First Amendment, 
they unanimously held that you can use speech in that kind of 
evidentiary way.
    Mr. Collins. To show the intent that we are talking about 
    Mr. Clement. Right. Exactly.
    Mr. Collins. Okay. So, let's continue on in this process. 
In consideration of potential violations of Title VI stemming 
from discriminatory-motivated harassment, how does one 
distinguish between the protected speech and the nonprotected 
    Mr. Clement. I think that is where it is really the 
harassment test that has to do the work. Because, you know, the 
Supreme Court has basically said that, you know, that there is 
a different level of protection for conduct as opposed to 
    And when you have conduct that rises to the level of 
harassment, you know, I think it is common ground that it is 
perfectly permissible to say that we are going to prohibit the 
harassment if it is motivated by race, national origin, or 
anti-Semitism. And then, it is just a matter of trying to 
figure out whether that is, in fact, what motivated the 
    And in that inquiry, then you cannot take into account 
speech. It does not raise a First Amendment problem, by virtue 
of unanimous Supreme Court. And it just seems that in figuring 
out whether the speech, the conduct, sometimes it could be a 
combination of both; you know, somebody spray paints a swastika 
on somebody's dorm room, and that is probably more conduct than 
speech. But all of that can then be used in order to make a 
determination whether the harassing conduct was anti-Semitic 
and, therefore, violates title VI.
    Mr. Collins. Many times, in looking at this, you know, 
there is a concern in many circles of are you, you know, in 
crossing over this area, especially in hate crimes or other 
things, are you criminalizing the thought? I am not sure if a 
definition, in the sense that we are talking about here with 
this Act, actually goes that far. And what you are saying, with 
this definition, impinge on this First Amendment right or some 
of the list of horribles that have come from several on the 
panel today?
    Mr. Clement. I do not think it would, and I think maybe one 
way to think about the difference is this would be a very 
different situation if this was a proposal to say that the 
following anti-Semitic speech will be prohibited, and here is 
the definition. But that is not what this law does. It takes an 
existing framework that only reaches conduct that rises to the 
level of harassment based on a certain level of motivation, and 
then uses this as a way of figuring out what motivation counts.
    Mr. Collins. And where it does not seem to be working at 
all. Since we are not seeing this being brought forth. Although 
we are seeing out in the world very evidently, we are not 
seeing it brought in these cases.
    Mr. Clement. That is exactly right. Look, in the abstract, 
one could say that maybe we do not want a definition written 
into the statute and we would prefer to do it case by case and 
have courts develop it, but you need cases.
    Mr. Collins. Right.
    Mr. Clement. And I think what we are seeing here is that 
there are no cases that are allowing us to develop a definition 
through the judicial process. And so, it makes sense why 
Congress would want to step in here, even if it would not 
necessarily feel like it needed to step in in some other 
    Mr. Collins. And I appreciate the other witnesses. I do 
have one last question because it was brought up earlier 
concerning--your testimony concerning this--into what was put 
into this. As it is shifting to this legalization, the Anti-
Semitism Awareness Act, includes a savings clause. And 
hypothetically, without the savings clause, in your opinion, 
would it violate the First Amendment, and if so, why?
    Mr. Clement. I think this would be perfectly constitutional 
without the savings clause for the two principle reasons that I 
have given.
    One is that it essentially is not a direct regulation 
speech, but only essentially an evidentiary test for the 
motivation for harassment.
    And second, because the definition actually serves First 
Amendment values. I just think the savings clause, you know, to 
the extent that with any statute, somebody can come in and say, 
``Well, maybe it is going to, even though it is not 
unconstitutional on its face, maybe it will be applied in the 
wrong way.'' And I think the savings clause gives some 
additional sort of comfort that that is not the way that the 
statute would be applied.
    Mr. Collins. Well, I thank the panel today, and all nine 
opinions have served well to know that you can apply it pretty 
much any way from any angle that you want. But I think it has 
been a good discussion.
    I agree with my friend from Texas just a few minutes ago, 
this is something we need to, I think can move forward on 
without infringing on the First Amendment rights, which was the 
overall issue, and bring some clarity that may be lacking at 
this point today. But that is the reason we move forward. That 
is not simply because we have questions that we should not move 
forward, it is the very fact that we have questions that I 
believe should move this forward. And with that, Mr. Chairman, 
I yield back.
    Chairman Goodlatte. The chair thanks the gentleman. I want 
to thank all the witnesses. This has been an excellent hearing. 
I think we have helped to shed a lot of light on a very 
important issue. I am deeply concerned about what is happening 
to Jewish students on college campuses, and I think that we 
need to work together to find the right approach to make sure 
that the forces are brought to bear, including the U.S. 
Department of Education, to solve this problem. And I am sure 
this dialogue will continue. But all of you have made a great 
contribution today, and I think you have helped to educate the 
members of the committee.
    So, this concludes today's hearing, and I, again, thank all 
of you for your participation. And, without objection, all 
members will have 5 legislative days to submit additional 
written questions for the witnesses or additional materials for 
the record. And with that, this hearing is adjourned.
    [Whereupon, at 1:01 p.m., the committee was adjourned.]