NEW YORK—The decision by the Department of Education’s Office of Civil Rights (OCR) in response to an appeal of a seven-year-old case concerning a complaint against Rutgers University by the Zionist Organization for America (ZOA) represents an unwarranted foray by the Trump administration that could pave the way for approaches to combating anti-Semitism that infringe upon free speech, PEN America said in a statement today. While anti-Semitism on campus is a serious concern that warrants attention and action, it can and must be addressed in ways that do not impair freedom of expression.

The case centers on an event held at Rutgers in 2011 organized by a pro-Palestinian student group, “Belief Awareness Knowledge and Action”, which featured an advocate for the Boycott, Divestment, Sanctions (BDS) movement.  A complaint from ZOA alleged several forms of anti-Semitism occurred, including charging higher fees for the event to pro-Zionist and Jewish students, and argued that the Rutgers administration failed to adequately respond to an allegedly hostile environment for Jewish students on campus more broadly. The OCR dismissed the case in 2014, determining that there was insufficient evidence to conclude that the organizers of the 2011 event discriminated against Jewish attendees, or that Rutgers had not exercised due diligence in reviewing or responding to the complaints. In its response to the appeal, OCR invoked a definition of anti-Semitism that was developed for purposes of monitoring hate speech globally and is used, in varying versions, by the US State Department, the International Holocaust Remembrance Alliance and other entities. The definition is also the basis for the Anti-Semitism Awareness Act introduced in Congress in March 2018.

PEN America has argued that the adoption of this definition in the context of campus speech controversies, and specifically to spell out potential grounds for civil rights complaints directed at students and faculty, runs the risk of treating speech protected by the First Amendment as evidence of harassment. It may also invite universities to adopt overly aggressive approaches to policing speech in order to avoid triggering civil rights complaints, and could prompt self-censorship and chilling of legitimate debate on topics of public concern. In Testimony before the House Judiciary Committee in November, 2017 PEN America CEO Suzanne Nossel also pointed out that the legislation could precipitate other ethnic groups to call to define other particular forms of offensive speech as grounds for claims of discrimination—including historical arguments, visual depictions, and the conflation of ethnic and national identities—all of which could further encroach on freedom of speech on campus. 

“Putting aside the motives behind OCR’s decision to revisit this old case, the invocation of this broad definition of anti-Semitism in the context of a civil rights investigation runs the risk of chilling discourse and debate on campus” said Jonathan Friedman, PEN America Project Director for Campus Free Speech. “Moreover, given that OCR’s investigation centers on alleged behaviors by the event organizers and the Rutgers administration, references to speech—whether anti-Semitic or not—seem gratuitous. Rather than looking to reignite old controversies, the Department of Education should devote more resources to responding to reports of a recent rise of hate crimes on college campuses.”

PEN America’s analysis of the Anti-Semitism Awareness Act can be found in the 2017 white paper, “Wrong Answer: How Good Faith Attempts to Address Free Speech and Anti-Semitism on Campus Could Backfire.”  

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PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. pen.org

CONTACT: Anoosh Gasparian, External Relations Manager: agasparian@pen.org