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To settle lawsuits, Harvard says it will use controversial definition of antisemitism [1]

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Date: 2025-01-21

The definition, adopted by the International Holocaust Remembrance Alliance as well as more than 40 nations but only a handful of American universities, says that certain kinds of criticism of Israel and Zionism can be antisemitic, such as asserting that “the existence of a State of Israel is a racist endeavor” or “drawing comparisons of contemporary Israeli policy to that of the Nazis.”

Harvard’s announcement on Tuesday came as part of a settlement of two lawsuits filed by Jewish students and advocacy groups last year amid campus protests over the war in Gaza that followed the Oct. 7 Hamas attack on Israel. The protests engendered fierce debates from Harvard Yard to Congress over where to draw the line between criticism of Israel and speech that veers into antisemitism, and forced universities to grapple with how to strike the balance between protecting free expression and policing offensive or bigoted speech.

A day after Donald Trump’s second presidential inauguration, Harvard University said it would begin using a definition of antisemitism that the first Trump administration promoted and that critics say can lead to censorship of pro-Palestinian speech.

The so-called IHRA definition does not say, however, that all criticism of Israel is out of bounds. “Criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic,” the definition says.

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Harvard will now “consider” the IHRA definition when it evaluates “complaints raising allegations of antisemitic discrimination or harassment,“ according to a press release summarizing the agreement between Harvard and the plaintiffs that was filed in federal court in Boston on Tuesday. Critics say Harvard’s use of the definition as part of the disciplinary process could usher in heightened censorship of pro-Palestinian speech and create a chilling effect on debate about Israel. Proponents of the IHRA definition see it as the gold standard for differentiating between criticism of the policies of the Israeli government and speech that amounts to demonizing the Jewish people.

Both sides saw Harvard’s announcement as a product of the politics of the moment.

“What we’re seeing is a clear response to political pressure and it’s accurate to call this anticipatory obedience in the sense they are afraid of the coming illiberal pressure from the Trump administration,” said Ryan Enos, a Harvard professor of government who served as an informal adviser to some pro-Palestinian student activists. ”Harvard should be embarrassed.”

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Marc Kasowitz, one of the lawyers who sued Harvard and negotiated the settlement, said, “We believe that one of the factors that has been helpful in being able to reach a settlement here is the position that President Trump took throughout the campaign assuring that Jewish students on college campuses would be protected from discrimination and harassment.”

A Harvard spokesperson, Jason Newton, said in a statement: “We are resolute in our efforts to confront antisemitism and will continue to implement robust steps to maintain a welcoming, open, and safe campus environment where every student feels a sense of belonging. Today’s settlement reflects our dedication to this mission.”

The lawsuits were brought by Jewish advocacy groups on behalf of Harvard students. They alleged that Harvard had violated Title VI of the Civil Rights Act by failing to protect Jewish students from “severe and pervasive” antisemitic harassment on campus. They cited the IHRA definition to bolster their arguments.

“Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor,” can be antisemitic, the definition states.

Adopting that definition could place out of bounds some slogans used by pro-Palestinian activists, such as “Zionism is racism.”

“Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion” can also be antisemitic, according to the definition.

That provision could be used to prohibit activists from using slogans such as “From the river to the sea, Palestine will be free” and “Globalize the intifada.”

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“From the river to the sea, Palestine will be free” is a phrase embraced by Hamas that some Jews hear as a call for the violent destruction of Israel, which sits between the Jordan River and Mediterranean Sea. Some pro-Palestinian activists say the slogan is a call for the political enfranchisement of Palestinians in a new state encompassing the current borders of Gaza, the West Bank, and Israel. The Jewish state, as it now exists, would cease. Intifada generally refers to two Palestinian uprisings. The Second Intifada was characterized by suicide bombings targeting Israeli civilians and deadly Israeli crackdowns on Palestinians.

Kenneth Stern, director of the Bard Center for the Study of Hate at Bard College in New York, was the lead drafter of the IHRA definition. He, and others, wrote it in 2004 primarily to serve as a tool for European bureaucrats who were trying to track antisemitism on the continent, he said. He does not approve of its use in campus disciplinary proceedings, he said.

“I think this is going to backfire and it’s going to chill speech,” Stern said of Harvard’s decision. “I think it’s probably going to make things worse.”

Harvard made other concessions, as well, as part of the settlements announced Tuesday and filed in federal court in Boston.

Harvard will make clear on its website that Jewish and Israeli identity, as well as Zionist political belief, are protected under its existing discrimination and bullying policies.

The university will “prepare a public annual report for the next five years” that describes Harvard’s response to allegations of discrimination on the basis of religious identity or ancestry.

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Harvard will also post on its website examples of conduct that are prohibited, including: “excluding Zionists from an open event, calling for the death of Zionists, applying a ‘no Zionist’ litmus test for participation in any Harvard activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., ‘Zionists control the media’), or demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism to harass or discriminate.”

Those examples echo concerns articulated by Jewish students in recent years and highlighted by Harvard president Alan Garber.

Garber was named president after Claudine Gay resigned last January, following her disastrous testimony at a congressional hearing on campus antisemitism, and amid allegations of plagiarism in her scholarly works. Garber said last year that he was concerned about “social shunning” of Jewish students in the midst of the Israel-Hamas war. He created two task forces to study antisemitism and Islamophobia. The antisemitism task force in June said the “situation of Israeli students at Harvard has been dire.”

The task force on Islamophobia, anti-Arab, and anti-Palestinian bias found “a deep-seated sense of fear” within the community and a “pervasive climate of intolerance” of pro-Palestinian views.

Pro-Palestinian activists said Tuesday that Harvard’s use of the IHRA definition of antisemitism could have a further chilling effect on speech.

“The definition itself is very problematic with the administration’s history of silencing and suppressing pro-Palestinian protesters,” said Nuriel Vera-DeGraff, a junior at Harvard. He said he was worried about Harvard “adding this to their arsenal as another tool to do that to a greater extent instead of what it should be for, which is protecting Israeli and Jewish students from bias.”

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The two main advocacy groups that brought the lawsuits were Students Against Antisemitism and the Louis D. Brandeis Center for Human Rights Under Law.

The Brandeis Center’s founder and chairman is Kenneth Marcus, a former head of the Department of Education’s Office for Civil Rights during the first Trump administration. In that role, he was responsible for the federal government’s enforcement of civil rights law on college campuses, and he advocated for broader use of the IHRA definition in determining what kinds of speech and behavior qualified as antisemitic harassment. (The Trump administration adopted the IHRA definition for official use in civil rights enforcement; the Biden administration left that policy in place.)

In an interview Tuesday, Marcus said he hopes Harvard’s settlement will prompt other schools to use the IHRA definition.

“It is something every college should be doing and yet too few of them have been willing to do so,” Marcus said. “Harvard leadership should be instrumental in this.”

“There is a strong sense in higher education that the incoming Trump administration will have a more forceful approach to campus antisemitism than the last one,” he added.

Hilary Burns can be reached at [email protected]. Follow her @Hilarysburns. Mike Damiano can be reached at [email protected].

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