This is what just happened to the Jewish community. The Biden White House had announced last spring (and even before that), that the Education Department’s Office for Civil Rights (OCR) would deliver an important proposed regulation in December 2022. The regulation is supposed to implement the Executive Order on Combating Antisemitism, which former President Donald Trump had signed in 2019. This order had been a major milestone, codifying important rules under which Jewish students receive civil rights protections in American colleges and schools. Significantly, it also directed federal agencies, including OCR, to use the “gold-standard” IHRA Working Definition of Antisemitism. December came and went, but no regulation arrived.
On Wednesday, the Biden administration announced that the proposed regulation would be delayed another 12 months, until December 2023. This should not have been a shock. The regulation had been repeatedly delayed since it was first announced, while I still served as head of OCR. But this time it was surprising.
President Biden had spoken repeatedly about the need to address the rapid and alarming rise in antisemitism in the United States. And my successor at OCR, Catherine Lhamon, has acknowledged how bad this problem has become in schools and on college campuses. Furthermore, the Biden administration had repeatedly emphasized the importance of the IHRA definition, which has now been embraced by nearly 40 nations and, in one form or other, by more than half the states. And yet the administration was still not ready to unveil a regulation that has been pending longer than Joe Biden has been in office.
In its place, Assistant Secretary Lhamon offered a “fact sheet” on ethnic discrimination. Specifically, she issued “Protecting Students from Discrimination Based on Shared Ancestry or Ethnic Characteristics,” which is intended to explain how Title VI of the Civil Rights Act of 1964 (Title VI) covers Jewish and other religious students. To address anti-Semitism, this guidance offers only a single, obvious example regarding a student who is made to feel unsafe by other students who place notes with swastikas on the student’s backpack, perform Nazi salutes, and make jokes about the Holocaust. While administrators need guidance to explain hard cases, this sort of example is too self-evident to be helpful.
OCR’s new fact sheet is so weak that Palestine Legal, which routinely opposes efforts to fight antisemitism, offered Lhamon their congratulations. “We are reassured to see @EDcivilrights do the right thing: #RejectIHRA, and focus on rising threats of bigotry & racist attacks by white supremacists,” the group gloated in a Tweet. Short of an endorsement from Kanye West, it is hard to imagine more damaging praise.
Jewish professionals were initially perplexed, and anti-Israel activists gleeful, that this new guidance failed to address the sort of cases in which Jewish students and faculty have been marginalized, stigmatized, and excluded on campuses from the University of Vermont, the State University of New York at New Paltz, and Brooklyn College, to Berkeley, Stanford, and the University of Southern California.
And yet close observers noticed a significant breakthrough that the Israel-haters either misunderstand or willfully mischaracterize. In a statement accompanying the fact sheet, Lhamon acknowledged that the “rise in reports of antisemitic incidents, including at schools, underscores the critical importance of addressing” this discrimination. More importantly, she emphasized the tools that are available to address this problem.
In the Biden administration’s first public embrace of IHRA within a domestic context, Lhamon wrote that Trump-era guidance (prepared under my direction) “affirms OCR’s commitment to complying with Executive Order 13899 on Combating Antisemitism” and remains available on OCR’s online compendium of active policy documents. In other words, Lhamon has commendably indicated that this administration continues to view the Trump order as an active component of Biden civil rights policy—and emphasizes OCR’s “commitment to complying” with it. This includes, significantly, the IHRA definition and its guiding examples relative to Israel.
The importance of Lhamon’s statement is that it signals to the higher education community that OCR will continue, under this administration, to evaluate campus antisemitism under the same internationally agreed-upon standard that was used during the last administration. Eleven months is too long to wait to formally codify rules to combat the surge in antisemitic incidents in schools and on college campuses, however we should not fail to recognize the important commitment the Department of Education has made to IHRA.
For those campus administrators who have defied the IHRA definition, or denigrated it as merely political, this is an important statement that the Biden administration stands by this definition. The IHRA Working Definition remains the federal regulatory standard for evaluating whether harassing conduct is motivated by antisemitic intent. Colleges, universities, and public schools who ignore IHRA do so at their own risk.
Kenneth L. Marcus is Founder and Chairman of the Louis D. Brandeis Center for Human Rights Under Law and author of The Definition of Anti-Semitism. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.
The views expressed in this article are the writer’s own.
