Editor’s Note: This article contains references to antisemitism and violence.
NC State has revised its anti-discrimination policy following a settlement with the Brandeis Center for Human Rights Under the Law. Some experts believe the obligations in the agreement could challenge freedom of speech on campus.
The settlement arose from a Title VI complaint alleging the University failed to address a hostile environment amid multiple incidents of antisemitic harassment of a student. The Brandeis Center cites the student being doxed and harassed online for supporting Israel, and that classmates yelled “Death to Jews” and “Death to Zionists” at her from a car.
Robin Pick, senior counsel for the Brandeis Center, said the University will revise and disseminate discrimination policies and trainings in accordance with North Carolina’s recently passed SHALOM Act and federal regulations.
“In having explicit reference to the North Carolina General statutes, which includes the SHALOM Act and Executive Order 13899 — both of which incorporate the International Holocaust Remembrance Alliance definition of antisemitism and its contemporary examples by incorporating that explicitly in their policy — they’re just committing to follow the law as written,” Pick said.
The agreement also states the University will issue a non-discrimination statement to the campus community including links to these documents and an Office of Civil Rights letter with examples of antisemitism on campuses. It also says the University will conduct a campus climate survey to gauge community needs.
Pick said NC State has 60 days from the day of the agreement to issue the statement; the settlement was reached on July 18.
The IHRA definition of antisemitism
The SHALOM Act, passed in June, officially established the IHRA working definition of antisemitism into state law. The definition illustrates several examples of what could be considered “contemporary” antisemitism — seven of the 11 relate to the state of Israel.
Rep. Pricey Harrison, who was one of three members in the North Carolina House of Representatives to vote against the SHALOM Act, joins critics in saying the definition equates criticism of the Israeli government to antisemitism. Harrison says the adaptation of the definition could threaten protected political speech in the state.
North Carolina is the 34th U.S. state to adopt the IHRA definition, along with hundreds of organizations and governments around the world. Pick calls the definition the gold standard in defining antisemitism.
“The IHRA definition is very clear and explicit in terms of it provides clear guidance in recognizing both classic and contemporary antisemitism,” Pick said. “And not only does it provide a definition of antisemitism, but it provides a list of contemporary examples which illustrate the various forms that antisemitism can take.”
Pick says universities adapting the definition can help identify instances of antisemitism and be more empowered to address it, like in the NC State case.
“What we find is, in some cases, the reason why universities perhaps may not be addressing certain instances of antisemitic conduct is they may not be recognizing it,” Pick said. “And so the IHRA definition is an excellent tool for universities to recognize antisemitism as it happens on their campuses.”
Phil Brodsky, CEO of the Jewish Federation of Greater Raleigh, lobbied for the SHALOM Act and the state adoption of the IHRA definition. He says Judaism is unique because it is more than a religion, a sentiment that can make legally identifying antisemitism more difficult.
“In truth, a lot of Jews think about ourselves as a people; we’re not defined by a race or ethnicity or religious belief, it’s a little bit of everything,” Brodsky said. “So we consider ourselves a people. Because of that it can be more difficult under the law to specifically call out an action as a hate crime against Jews when there’s not a clear definition of what antisemitism is. So it’s important that we have a clear definition of antisemitism that’s adopted so that when there is a crime, it can be treated or understood to be antisemitic.”
Campus implications
This expansive understanding of Jewish identity as more than just a religious affiliation is central to the wording changes in NC State’s policy. A statement from University spokesperson Mick Kulikowski explains the developed language.
“While protection from discrimination on the basis of national origin has been covered for decades in this policy under Title VI and Title VII of the 1965 Civil Rights Act, the updated policy clarifies that this protection also prohibits discrimination on the basis of actual or perceived shared ancestry and ethnic characteristics,” the statement read. “This update ensures compliance with federal and state laws, as outlined in Section 5 of the policy, and communicates clearer protections for many in our community.”
The policy, which was updated Aug. 1, now specifies that it is implemented in accordance with Executive Order 13899, which was not included in the most recent 2020 version of the policy. While formerly referring to specific chapters of state statutes, the updated policy refers generally to North Carolina General Statutes, which would include the SHALOM Act.
The IHRA definition especially draws criticism from academic circles that explores the historical conflict between Israel and Palestine from a scholarly perspective. Joel Beinin, professor emeritus of Middle East history at Stanford University and former president of the Middle East Studies Association, believes the definition’s implementation is meant to silence criticism of Israel.
“The underlying intention is to try to fuse anti-Zionism with antisemitism, and in that way, to protect the state of Israel from fundamental criticism,” Beinin said.
Beinin said this is acutely felt in academia.
“The main issue for both students and faculty is that definitions of discriminatory and unfair treatment like the IHRA definition may be and in fact, have been, deployed to suppress academic freedom and freedom of speech,” Beinin said. “I know many, many faculty members and PhD students — who hope to become faculty members — who are frightened at least to some extent in this way. It’s definitely constraining freedom of speech and academic freedom, which is exactly what it’s intended to do.”
Rep. Harrison said the initiative in the General Assembly to pass the SHALOM Act arose partially from pro-Palestine protests on Chapel Hill’s campus in the spring. Harrison said legislators were reluctant to criticize the legislation on the floor for fear of being labeled antisemitic, a “chilling effect” she sees expanding to state universities.
“This has happened on other campuses where they have shut down programs or gotten rid of professors who’ve taught classes that discuss this issue, and I think that’s the big thing that’s going to happen as a result of this,” Harrison said. “And I feel like this now being part of our state law will have that effect of silencing discourse from different viewpoints, and I don’t think that’s healthy for a college environment.”
Academic challenges anchored by the IHRA definition have become almost commonplace in higher education following Executive Order 13899 in 2019. The definition has been cited in efforts to shut down activist and guest lecturer events, film showings and entire courses at universities. Many of these examples single out chapters of Students for Justice in Palestine.
First Amendment concerns
Sarah Ludington, director of the First Amendment Clinic at Duke University, shares these freedom of speech concerns. While Ludington does not see the SHALOM Act as having explicit punitive implications, her concern would be if NC State adapts the IHRA definition as a form of campus speech code.
“[The First Amendment] protects against laws that are sort of vaguely written that make people concerned that their speech might fall into the no-fly zone,” Ludington said. “So one of the concerns about adopting the IHRA as sort of a guide for campus speech code is that it’s very broadly written to encompass a lot of circumstances, a student might not know whether their speech is going to fall into the danger zone.”
Ludington hopes any adoption of new policies will be qualified with a statement upholding First Amendment rights inside and outside the classroom. In an almost identical 2020 Title VI settlement with New York University, the institution said it only agreed to a portion of the IHRA definition and would create its own examples of antisemitism in addition to stating their commitment to academic freedom.
Ludington said the enforcement of this policy will ultimately be up to University administrators, and if an extreme interpretation is taken, it’s not impossible for NC State to see efforts to shut down protests and academic discussions.
Ludington agrees the complaint in the NC State case constituted a hostile environment, and the specific aggressive targeting of a student on the basis of race or religion should be characterized as such. Generally, universities are facing difficult circumstances in trying to navigate the distinction between political, academic and discriminatory speech.
“I think in North Carolina and other states, an enormous amount of external pressure is being brought on universities, particularly by legislatures and sort of interfering in the university’s mission,” Ludington said. “And I think universities are in a really, really tough position with that, because it is hard to protect your university, keep it focused on its academic and educational mission, while at the same time fending off intense criticism from the legislators who fund you.”
