Defining Antisemitism Should Not Mean Defining Away Palestine
By Robert McDonald, Senior Legislative Researcher, a New Policy
Some bills introduced in Congress have names that sound like they’re solving a problem everyone agrees is serious - but on inspection, create more problems than they solve. The Antisemitism Awareness Act is one such Bill. Instead of focusing narrowly on protecting Jewish students from discrimination, the bill embeds into federal law a prohibition on criticism of Israel, and would likely result in chilling other protected speech, particularly speech advocating for Palestinian human rights and self-determination. And it does so despite warnings from constitutional scholars and even one of the definition’s original drafters that this approach will backfire and ultimately make the fight against antisemitism and human rights harder, not easier.
What Is the Antisemitism Awareness Act and the IHRA Definition of Antisemitism?
The Antisemitism Awareness Act of 2025, introduced as S. 558 and H.R. 1007, would require the Department of Education to use a specific definition of antisemitism when enforcing federal civil rights law in schools and universities. At first glance, that may sound straightforward. Antisemitism is real and it is rising. And federal law already prohibits discrimination against Jewish students under Title VI of the Civil Rights Act. However, this legislation directs the Department of Education to use the definition of antisemitism adopted by the International Holocaust Remembrance Alliance (IHRA). IHRA’s working definition includes a general description of antisemitism along with a list of illustrative examples. Several of those examples relate to Israel. They include, among others
Implicitly requiring recognition that Israel is a democratic country
Claiming that Israel is a racist endeavor
Comparing Israeli policies or actions to those of the Nazii
While supporters argue that these examples help identify contemporary forms of antisemitism that manifest through discourse about Israel,when embedded into federal enforcement, the IHRA definition conflates political speech about a foreign government with discrimination against Jewish people. The legal and constitutional consequences of that distinction are significant.
What Would the Law Actually Do?
Under current law, Title VI prohibits discrimination on the basis of race, color, or national origin in federally funded education programs. Jewish students are already protected under this framework. The Antisemitism Awareness Act would not create a new protected class, but it would direct federal agencies to treat criticism of Israel as evidence of antisemitic discrimination. It instructs agencies to interpret antisemitism through the IHRA framework when evaluating complaints. This will shape:
Campus investigations
Department of Education enforcement actions
Federal funding decisions
Universities will feel pressured to discipline speech that would otherwise fall under protected political expression.
What CRS Says About the Constitutional Questions
A recent analysis from the Congressional Research Service, Congress’ in-house nonpartisan think-tank examining StandWithUs Center for Legal Justice v. MIT highlights the constitutional guardrails that apply when Congress attempts to legislate around speech. CRS notes that several of the contemporary examples listed in the IHRA definition are not inherently antisemitic. Among the examples discussed:
Claiming that the existence of a State of Israel is a racist endeavor
Applying double standards by requiring of Israel behavior not expected or demanded of any other democratic nation
CRS explains that courts, not Congress, determine the boundaries of protected speech. Congress cannot remove speech from First Amendment protection simply by defining it as discriminatory. Courts following the reasoning in StandWithUs could conclude that aspects of the IHRA definition sweep in speech that remains constitutionally protected, which would limit Congress’s ability to regulate it.
This distinction is critical. Title VI regulates discriminatory conduct, not pure political speech. The First Amendment protects even controversial, offensive, or unpopular viewpoints. Government enforcement that penalizes a specific political perspective risks unconstitutional viewpoint discrimination. The question is not whether antisemitism can be punished. It can, when it rises to the level of actionable harassment or discriminatory conduct under established legal standards.
The constitutional concern is whether embedding the IHRA definition into federal enforcement would pressure institutions to treat political advocacy about Israel as discriminatory conduct, even when that advocacy does not meet existing legal thresholds. Federal courts have already grappled with this issue. In Students for Justice in Palestine v. Abbott, a federal district court found that an executive order requiring public universities to apply the IHRA definition likely violated the First Amendment.
A Warning from IHRA’s Own Drafter
Kenneth Stern, one of the lead drafters of the IHRA working definition, testified before the Senate Judiciary Committee in September 2024. His message was direct:
The IHRA definition was developed as a data collection and monitoring tool, not as a binding campus speech code or federal enforcement standard. Stern has cautioned that legislating IHRA as a legal mandate could:
Chill academic debate
Politicize antisemitism accusations
Undermine efforts to fight real antisemitism
His concern is not that antisemitism should be tolerated, but that constitutional overreach may backfire and exacerbate the very antisemitism these bills claim to want to stop.
Why This Debate Is Different
Congress has never codified a specific definition of discrimination into civil rights law in this way.
There is no statutory definition of anti-Black racism.
There is no statutory definition of anti-Asian discrimination.
There is no statutory definition of anti-Arab hate.
The Antisemitism Awareness Act would be the first instance in which Congress embeds a specific ideological framework into federal discrimination enforcement. That move raises questions not only about free speech, but about equal protection and consistency in civil rights law.
The Core Tension
The bill sits at the intersection of two fundamental American values:
Protecting Jewish students from discrimination and harassment.
Protecting political speech, including speech critical of foreign governments.
The First Amendment does not protect discrimination. But it does protect political advocacy, including advocacy that is harsh, unpopular, or uncomfortable. The constitutional question is whether this legislation and other bills that utilize the IHRA definition draw that line carefully enough, and according to CRS and Kenneth Stern, that answer is a resounding no.
The debate is unlikely to fade. Similar versions of this legislation that utilize the IHRA definition, or claim to not utilize it but cite its contemporary examples to circumvent criticism, have been introduced in multiple Congresses including the 119th (this Congress), often gaining bipartisan support but stalling amid constitutional concerns.
As Congress revisits the issue, the central question is not whether antisemitism should be confronted. It is how to confront it without lumping in anyone who criticises Israel or believes in Palestinian human rights and self-determination. Because once the federal government begins defining which political viewpoints cross into discrimination, the precedent does not stay confined to one issue.
And that is why this debate matters far beyond any single bill.
