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All rights reserved Copyright © LawFacultyAgainstAntisemitism.com

Law Faculty Response to the American Bar Association Resolution 514 on Antisemitism 

We write as professors of law across all ranks at U.S. campuses, including among us longtime members of the American Bar Association (ABA), to convey our disappointment that the widely recognized non-legally binding Working Definition of Antisemitism, provided by the International Holocaust Remembrance Alliance (IHRA), was deleted from the final version of the House of Delegates Resolution 514, adopted as revised on February 6, 2023 at the Midyear Meeting in New Orleans.

The IHRA definition is an invaluable educational tool for understanding how Jews experience antisemitism today. It includes both classical antisemitic tropes and canards and illustrations of contemporary antisemitism that are often directed against the State of Israel—such as calls for Israel’s destruction and comparing it to Nazi Germany.

It is unfortunate that the supporters of Resolution 514 were reportedly persuaded to opt out of using the IHRA definition only after a number of organizations mobilized in recent weeks to voice wildly exaggerated concerns that it is “dangerously chilling” speech in support of Palestinian rights. It is particularly troubling that this lobbying effort was apparently successful, given that some of those groups have themselves engaged in hostile anti-Israel rhetoric that has crossed the line from legitimate criticism to antisemitic hate speech. For example, the organization Jewish Voice for Peace has repeatedly trafficked in antisemitic conspiracies. 

We reject claims that the IHRA definition undermines and chills free expression, suppresses pro-Palestinian advocacy, or prohibits speech critical of Israel. In fact, the definition explicitly states that it is not antisemitic to criticize Israel in ways similar to other countries. But when conspiracy theories and anti-Jewish stereotypes flourish under the guise of calls to eliminate Israel, this needs to be called out and condemned as antisemitism. Left unchecked, this hateful speech justifies the harassment, exclusion, and marginalization of Jews in America and worldwide.

Calls for Israel’s destruction and discrimination against Jews are antithetical to human and civil rights. Thus, it is entirely appropriate for the ABA to endorse the IHRA definition for training and educational purposes. In the U.S. context, the definition should not be imposed as a hate speech code, but it is a sensible tool for understanding how anti-Semites may express their hatred against Jews in the form of anti-Israel expression, sometimes just by replacing the word “Jew” with the word “Zionist.”

When crimes are committed against Jews, the IHRA definition can help to determine whether antisemitic intent was a motivating factor. The definition can also be relied upon to decide whether a campus, given all the circumstances, has violated Title VI of the Civil Rights Act of 1964, by failing to protect Jewish students from discrimination on the basis of real or perceived shared ethnic or ancestral characteristics.  

Furthermore, instead of silencing or chilling constitutionally protected political speech, the IHRA definition can help to encourage robust conversations about the multifaceted nature of contemporary antisemitism, including when it is disguised as anti-Israel and anti-Zionist animus. On campus, it can promote speech by ensuring that Jewish students are able to openly express their Zionist identities and can participate freely in campus life.    

At a time of rising anti-Jewish bigotry in America and around the world, we are heartened that the ABA has resolved to “take a leadership role in opposing” it. However, antisemitism cannot be effectively combated or remedied if it is poorly understood. For this reason, we regret that Resolution 514 as adopted and revised omits an internationally-agreed upon standard and urge the ABA to reconsider its stance on this matter.

Initial Signatories are members of the Section for Law Faculty in the Academic Engagement Network (AEN):

Rick Barton, Adjunct Professor of Law, University of San Diego School of Law

Oren Gross, Irving Younger Professor of Law, University of Minnesota Law School (Chair, AEN Section for Law Faculty)

Richard L. Kaplan, Guy Raymond Jones Chair in Law, University of Illinois

Sheldon Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law, Illinois Institute of Technology

Steven H. Resnicoff, Professor, DePaul University College of Law

Richard Ross, David C. Baum Professor of Law and Professor of History, University of Illinois College of Law

Additional Signatures as of 3/12/2023 (Affiliations for identification purposes only):

Reuven Avi-Yonah, Professor, University of Michigan Law School

Ethan Bearman, Adjunct Professor, Loyola Law School, Los Angeles

David E. Bernstein, University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University

Brian H. Bix, Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota

Ariel Dulitzky, Clinical Professor of Law, University of Texas at Austin

Matthew W. Finkin, Swanlund Endowed Chair and Center for Advanced Study Professor of Law, The University of Illinois at Champaign-Urbana

Jesse M. Fried, Professor, Harvard Law School

Steven R. Greenberger, Associate Professor of Law, DePaul College of Law

Kenneth Marcus, Distinguished Senior Fellow, Center for Liberty & Law, Antonin Scalia Law School, George Mason University

Rachel F. Moran, Distinguished and Chancellor’s Professor of Law, UC Irvine School of Law

Sam Myers, Adjunct Professor of Law, University of Minnesota

Trevor Norwitz, Lecturer in Law, Columbia Law School

Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota School of Law

David Phillips, Professor, Northeastern University School of Law

Thane Rosenbaum, Distinguished University Professor, Touro University

Jay Saltzman, Adjunct Professor of Law, Brooklyn Law School

Lisa Sandlow, adjunct professor, Loyola University School of Law, Chicago

Maimon Schwarzschild, Professor of Law, University of San Diego

Sande Shamash, Adjunct Professor, DePaul University College of Law

Jacob Sherkow, Professor of Law and Medicine, University of Illinois at Urbana-Champaign

Steven Solomon, Alexander F. and May T. Morrison Professor of Law, U.C. Berkeley

Daniel Subotnik, Professor of Law, Jacob D. Fuchsberg Law Center, Touro University

H. Patrick Swygert, Professor of Law, President Emeritus, Howard University  

J. Samuel Tenenbaum, Clinical Professor of Law & Director, Complex Civil Litigation and Investor Protection Center, Northwestern University Pritzker School of Law

Fernando Teson, Eminent Scholar Emeritus, Florida State University

Michael Waxman, Professor (Emeritus) of Law, Marquette University Law School

David Webber, Professor of Law, Boston University

Mark G. Yudof, Professor of Law Emeritus, UC Berkeley