IHRA Comes to Washington Square

Andrew Ross

Anyone who does Boycott, Divestment and Sanctions (BDS) (or any pro-Palestinian) work quickly learns that it is less about a confrontation with the Israeli state than with our own states, or with institutions that seek to exercise civil authority over us. If this was not already apparent, it became abundantly clear in the months following Operation Al-Aqsa Flood (Toufan al-Aqsa) on October 7, 2023. The battles that so many of us had to fight were with employers, opinion-makers, media gatekeepers, lawfare warriors, and elected officials in our own backyard, far from the killing fields of Gaza. One of the lessons learned was how deeply invested these domestic structures of power and their representatives are in the violent perpetuation of apartheid in historic  Palestine. 

The IHRA definition of antisemitism has featured prominently in these conflicts as an instrument of discipline, even criminalization. It was drafted, primarily by Kenneth Stern, as a private, and not a campus, speech code (and as a “non-legally binding working definition”). As he himself has pointed out,¹ it was not designed for the purpose of enforcement or regulation, though it is difficult in retrospect to imagine how it would not be utilized in this way by pro-Israel advocates. On the face of it, the IHRA standards were drawn up to promote the educational activities of an NGO, the International Holocaust Remembrance Alliance (IHRA), but they were enlisted from an early point in a concerted international effort to silence criticism of Israel and its policies. From the mid-2000s onwards, the full IHRA definition (including the controversial examples that conflate criticism of Israel with antisemitism) was taken up by a series of institutional and governmental bodies all across the world. In the United States, the State Department and the Commission on Civil Rights adopted versions, along with the Department of Education, which, in accordance with a 2019 executive order issued by President Trump, is required to refer to the definition when deciding if educational institutions have violated Title VI of the Civil Rights Act. Under pressure from the UK government, as many as 200 British universities have adopted the definition, but relatively few American universities have done so.

One of the few is New York University (NYU), my own employer. How this came about is worth reflecting on, and it will be the topic of this article. The university was not pressed directly by a government body to adopt IHRA; it did so as a result of a 2020 settlement in a lawsuit brought by the Office for Civil Rights (OCR) of the Department of Education (DOE) alleging that NYU had fostered a hostile, antisemitic environment for Jewish students. ² For those who know something about the history of NYU, this allegation might be puzzling. The university has long been known as a haven for Jewish students, and today it is a stronghold of Jewish Studies research and teaching. How could it have become a hotbed of antisemitic sentiment, ranked among the worst colleges for Jewish students, albeit by the uber-Zionist Algemeiner newspaper?

NYU’s reputation as a sanctuary from antisemitic discrimination is an important part of the institution’s twentieth-century history. In the 1920s, Ivy League colleges like Harvard, Yale, Princeton, and Columbia adopted quotas to reduce Jewish enrollment from levels that had reached up to 40%; Yale maintained a cap of 10% until the 1960s. As a result, NYU became the go-to private university in the New York metropolitan area for middle-class Jewish students, while City College and Hunter College played a similar role for those from working-class backgrounds. In 1918, as much as 50% of the NYU student body was Jewish, and enrollment was still at 40% in the early 1960s. Over the decades, the college served as a reliable engine of upward mobility for these students. Having been facilitated entry into the more lucrative professions and Wall Street firms, Jewish alumni donors and trustees were increasingly drawn from the financial and real estate elites who are sometimes referred to as New York City’s “permanent government.” 

That said, NYU leadership had their share of institutional anxiety about being seen as a Jewish school, including its colloquial nickname in certain circles as “NYJew.” NYU was not averse to experimenting with its own Jewish quotas,³ and for some time it was rumored to be cautious about not having too many Jewish trustees on its board. Indeed, it took until 2023 to appoint a Jewish president, Linda Mills, whose scholarly achievements include a documentary about Jewish–Muslim coexistence. Beginning in the 1990s, the university increasingly drew on a national pool of applicants, and so its share of Jewish students has dropped significantly.  But it has maintained its academic strength in Jewish Studies. The Department of Hebrew and Judaic Studies has as many as 18 full-time faculty members, and it boasts both a Center for American Jewish History and a Center for Israel Studies.

As elsewhere, the antisemitism lawfare at NYU was initiated in response to a new generation of anti-Zionist students coming of age and becoming active in campus politics from the 2010s onwards. But there is reason to believe that the reaction to the cries of “Free Palestine” around Washington Square carried a particular edge; if NYU was in danger of tilting away from Israel, then things had gotten out of hand, and something had to be done. The campus Students for Justice in Palestine (SJP) chapter was established as early as 2002 (at the same time as Berkeley), during the Battle of Jenin, when Israel Defense Forces (IDF) soldiers conducted a mass killing in the refugee camp. But for several years, SJP remained a marginal voice on campus, vigorously protested by Zionist students. As the demographics of the student body shifted, pro-Palestinian sentiment on the part of other student groups picked up, and racial justice came to the fore in the 2010s, especially with the rise of the Black Lives Matter movement. Outrage at the Israeli invasion of Gaza in 2014 preceded the Ferguson uprising by a few months, and so activists were quick to draw attention to the sharing of counter-insurgency tactics among the IDF and increasingly militarized U.S. police departments. 

In the years that followed, SJP members were able to gather enough support from other student groups to mount a divestment campaign. One of the key factors in this gathering momentum was the establishment of a Jewish Voice for Peace (JVP) chapter. The chapter’s leadership was highly visible and vocal, and they were joined at the hip with the SJP chapter. They challenged the authority of the established Zionist leadership at NYU’s influential Bronfman Center for Jewish Life on the question of who was able to speak on behalf of Jewish students within the campus community, and they petitioned for the appointment of a non-Zionist rabbi at the head of the Center. In 2018, the joint JVP-SJP campaigns delivered a successful divestment vote by the student senate that was supported independently by as many as 57 student clubs at NYU. The resolution named General Electric, Lockheed Martin, Caterpillar, and Boeing as divestment targets. In response, the administration insisted that the resolution was “at odds with the Trustees’ well-understood position that the endowment should not be used for making political statements.” Yet, in 2023, the university did divest from fossil fuel corporations, displaying the hypocrisy of its previously stated position on pro-Palestinian divestment.

Another prime target was NYU’s study-abroad program in Tel Aviv. In 2017, the Israeli Knesset passed an amendment to its law of entry that prohibited anyone who is not an Israeli citizen from entering the country if they, or any organization to which they belonged, had publicly called for a boycott against Israel or made a commitment to participate in such a boycott. Students and faculty of Palestinian descent or nationals from other Arab states had routinely experienced difficulty entering Israel to conduct research but this new restriction expanded to include censorship of political speech. This made the operation of study-abroad programs, which had been zealously courted by Israeli officials, ever more untenable. Until Columbia University followed suit in 2023, NYU was the only university with a stand-alone program in Israel. Its campus in Tel Aviv was funded by a single donor, and allegedly was founded at the behest of trustees as a regional “counterweight” to the university’s establishment of a campus in Abu Dhabi.  

In May 2019, students and faculty in my own Department of Social and Cultural Analysis debated and passed a resolution of non-cooperation with NYU Tel Aviv on the grounds that its operation violated NYU’s own campus codes of non-discrimination; two years later, hundreds of faculty signed a similar pledge by the Faculty of Color for an Anti-Racist NYU. The initial resolution ignited a Zionist firestorm, followed by an even larger frenzy around a pro-Palestinian valedictory speech delivered by one of our Ph.D. students at the graduation ceremony later that month. The sitting president, Andy Hamilton, who had earlier in the year refused to physically present the university’s Presidential Service Award to the SJP chapter, felt obliged to write a Wall Street Journal op-ed insisting that NYU was not an antisemitic university.⁴

These incidents and actions were enough to attract the attention of Kenneth Marcus, the dark lord of Zionist Mordor, who had made the transition from the Brandeis Center, the command center for anti-Palestinian lawfare, to the halls of government due to his appointment by then-President Donald Trump to helm the Office of Civil Rights at the Department of Education. Now with the force of federal legal power behind him, Marcus selected Rutgers (The State University of New Jersey) and NYU as his first two targets for discipline. His case against Rutgers grew out of a forum at which Jewish students said they were selectively charged entrance fees. After a three-year investigation of the charges, the Obama administration had concluded that there was insufficient evidence to support the claim. But Marcus resurrected the case in 2018, at the behest of the Zionist Organization of America (ZOA), by using the more expansive IHRA definition of antisemitism that includes criticism of Israeli policy. Nine civil rights groups eventually sued Marcus for giving preferential treatment to the ZOA. The suit helped to oust him from office, but not before his efforts prompted Trump’s executive order.⁵ 

In NYU’s case, he curated a complaint by a Zionist student into a full-blown Title VI lawsuit against the university, alleging a “hostile environment for Jewish students on campus.” In 2020, NYU negotiated a settlement that included an affirmation of no wrong-doing on its part, but accepted that the university should take a variety of stronger enforcement measures, including changes to its nondiscrimination and anti-harassment policies.⁶ NYU was also forced to adopt the IHRA definition, but its legal counsel split off the examples that conflate criticism of Israel with antisemitism, and committed instead to “devise its own examples,” specifically because the IHRA ones would violate academic freedom rights that protect campus speech.⁷ This decision was reported in the media, but NYU never crafted these alternative examples, nor were the consequences of the settlement for campus speech clearly communicated to faculty and students. 

After the 2020 settlement, the administration carefully avoided putting itself in a situation that would involve directly invoking IHRA. It might have come close to doing so in 2022 in response to a discrimination complaint against a graduate student who wrote “Fuck” over the word “Israel,” and “Free Palestine” on an Israeli mail bag that had been discarded in the recycling bin where she worked in the library mailroom. The case was dropped after a public backlash and a union grievance. SJP students in the law school also faced censure for their activities, especially after they voted to adopt BDS on behalf of NYU’s student-edited law journal—the first academic journal to do so—and in their challenge to a Zionist speaker. But, notably, the administration did not pull the IHRA trigger. Instead, the university leadership adopted the kind of passive-aggressive rhetoric that has become the template for most U.S. college presidents: because of our commitment to academic freedom, we have to recognize the speech rights of students and faculty, though, personally, we abhor speech that happens to be pro-Palestinian and that seems to be “divisive.” 

This rhetoric, and the actions that accompany it, shifted after October 7^th when a wave of student (and faculty) protests swept across campuses. Under intense pressure from Zionist donors, trustees, and elected officials, college and university presidents cracked down hard on demonstrators. In the course of the 2023-24 academic year, NYU weaponized its Office of Equal Opportunity (OEO) and Office of Student Conduct to discipline, suspend, and terminate more than a hundred faculty, students, and staff for exercising their academic freedom and even for exercising their First Amendment rights off campus. In contradistinction to other historical NYU campus protests against war and violence, the administration clearly singled out speech against Israeli violence in Gaza for special treatment, deemed to be antisemitic. Some part of this was surely to fulfill the reporting requirements of the 2020 settlement–to show its DOE monitors that NYU was restraining antisemitic speech on campus. In a more public show, NYU boasted on its web site, on November 30, 2023, that “[t]o date, over 60 students have been involved in cases related to current events that have been brought to our Office of Student Conduct (and related processes at the Law School).”  No doubt, such announcements were also designed to ward off the kind of unwelcome invitation to testify before right-wing members of Congress that would land the presidents of Harvard and the University of Pennsylvania in hot water just one week later. 

NYU’s crackdown was not appreciably different from the repressive measures adopted at other university campuses, but, in our case, the administration was operating within the disciplinary envelope provided by IHRA. Over the next several months, NYU brought Student Conduct charges against more than one hundred of its students for their criticism of Israeli policy, and for matters such as writing the names of dead Palestinian children on blackboards in chalk, or reading Palestinian poetry in the noisy public lobby of the main library. Notably, most of the students investigated and sanctioned were non-white. Faculty who were active in the Faculty and Staff for Justice in Palestine (FSJP) chapter were summoned to hearings with the OEO and with their deans. Many of these investigations and punishments were being conducted in the spirit of the “full IHRA,” and not the modified version agreed to in the 2020 settlement. On several occasions, executive officers of the campus American Association of University Professors (AAUP) chapter sought clarification from the administration about this all-important distinction, but only received ambiguous responses.

In the Fall of 2023, another antisemitism suit (Ingber v. NYU) was lodged against NYU. It named several faculty (including myself) for allegedly antisemitic speech and activism. In July 2024, NYU settled the case, this time with a confidential agreement not filed with the Court. As part of the settlement, which further entangles NYU with the DOE, the administration agreed to step up its disciplinary procedures. According to the joint statement on the settlement of the suit, NYU agreed to create a new position for a Title VI Coordinator who is required to take guidance from the OCR “regarding the use of the International Holocaust Remembrance Alliance definition of antisemitism and the accompanying examples.”⁸ Of course, the mention of “accompanying examples” generated a new wave of concern among faculty and students about the limits placed on speech in classrooms and on campus grounds. It appeared that, through a secret compact, the administration had compromised the rights of its own community. 

Privately, some of us were told that “nothing had changed.” But when the administration rolled out a new set of guidance about student conduct in August 2024 directly citing anti-Zionist speech as subject to discipline, it was clear that the legal settlement had pushed the university further onto indefensible ground. The announcement generated a wave of dismissive media coverage, and our FSJP chapter responded in the strongest terms. 

What lesson can we take away from the NYU experience? When it was faced with adopting IHRA in its entirety in 2020, NYU leadership foresaw a world of trouble because the full definition is such a clear violation of academic freedom rights. It tried to work a compromise that was never communicated clearly to faculty and staff, and generated no end of distrust during the campus crackdown of 2023-24.  In settling the second suit privately, the administration saw a way to appease the voices of hardliners pushing for recognition of the full definition, while protecting itself from the opprobrium of its faculty and students. Whether this shaky strategy holds up remains to be seen. IHRA crusaders know that academic freedom is an obstacle in the path of their efforts to promote widespread adoption on the part of universities. The legal strategy they sought in the NYU cases–of binding university speech policy to direct federal oversight–is also potentially fraught. The adoption of IHRA by the DOE is an infringement of rights, since its examples aim to exempt political criticism of Israel from the protection of the First Amendment.

How do we exploit this weakness? Private and public universities are different speech jurisdictions in the United States; employees of the former are not covered by First Amendment protections. But all of them subscribe to the basic canon of AAUP principles (even though they cherry-pick from among them), and, as a result, the AAUP voice is a potentially powerful one. At NYU, our AAUP chapter has never missed an opportunity to publicly criticize any censorious statement from the administration concerning pro-Palestinian speech on campus. Each time it has occurred, we have drawn attention to the long history of singling out Palestinian speech for disapproval. Indeed, our first communication with NYU’s incoming president in September 2023 concerned her statement of disapproval for the American Anthropological Association’s recent resolution to adopt BDS. In contrast to the national AAUP’s anti-boycott position, our chapter has always respected the right of faculty and students to choose for themselves whether to boycott. We maintained that this was a more defensible position on academic freedom than the one adopted by the national AAUP in 2006.

That said, the AAUP has spoken out against states that have adopted laws of censure against pro-BDS organizations, and it criticized the DOE for adopting IHRA. In a March 2022 statement by Committee A—its policy-making arm—the AAUP put the weaponization of IHRA in the company of right-wing attacks on critical race theory and the like, drawing attention to the dangers of censorious state-sponsored interventions into the academic realm. Reflecting a shift in leadership, in August 2024, Committee A repealed its ban on academic boycotts, a position approved by the Executive Council. University presidents will no longer be able to cite the AAUP as ammunition for its censure of BDS activity on campuses. On BDS and IHRA, however, the new leadership needs to go further. Speech protection, as always, is a fundamental form of defense; but we also need to go on the offensive, pushing back hard against Zionist lawfare, propaganda, and dirty tricks. The Palestinian cause increasingly demands an assertive, front-foot approach. In this endeavor, the Institute for the Critical Study of Zionism is an invaluable resource; it will inform, educate and guide us as we confront the many-headed Hydra that Zionism has become.