Washington Wednesday: Broadening the discrimination net

LINDSAY MAST, HOST: It’s Wednesday the 8th day of May, 2024.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Lindsay Mast.

NICK EICHER, HOST: And I’m Nick Eicher. It’s Washington Wednesday.

Today, legal analysis of a bill aimed at anti-Semitism on campus.

But first, a quick update on the move to oust the House Speaker, that wasn’t.

Just a few days ago, Georgia Representative Marjorie Taylor Greene said she would “absolutely” advance a measure to remove U.S. House Speaker Mike Johnson. She filed a motion to vacate back in April, in protest of Johnson’s advancing a foreign-aid bill.

MAST: Greene’s threat moved just barely beyond Greene, but under the rules that doesn’t really matter, as a single Republican member has the power to force a vote and even prevail if Democrats go along.

So yesterday [Tuesday], after two extended meetings with the Speaker, Representative Greene softened her position. Audio here from World’s Washington Bureau:

GREENE: What I’m trying to do is give Mike Johnson a chance to be a Republican speaker, and we’ll see what happens.

REPORTER: But why back off from what you said last week?

EICHER: Now, the motion to vacate that Greene filed back in April could still be brought to the floor. But for now, Greene issued a list of demands. Among other things, she wants Johnson to commit to no more funding for Ukraine and consider only single subject appropriations bills … to stand or fall on their own merit. In other words, no more massive bills with something for everyone designed to help the medicine go down.

Johnson told reporters yesterday that he has heard Greene’s ideas, but…

JOHNSON: It's not a negotiation, ok? What is required when you have the smallest majority in history is that you have to quite literally get everyone to work together. When you can only lose one vote on a, on a, on a party preference or priority, it, it takes a lot of time to build consensus.

MAST: Turning now to a proposal that’s gotten much more support in the House:

Last week, the House passed “The Antisemitism Awareness Act” with bipartisan backing. During House debate … Tennessee Republican David Kustoff explains what the law would do.

KUSTOFF: Mr. Speaker, by clearly defining anti-Semitism, the Antisemitism Awareness Act will help the Department of Education better enforce federal anti-discrimination laws.

EICHER: But New York Democrat Jerry Nadler opposed the bill.

NADLER: This bill threatens to chill constitutionally protected speech. By encompassing purely political speech about Israel into Title VI’s ambit, the bill sweeps too broadly.

MAST: So does Nadler have a point on free speech? Joining us now to talk about it is WORLD’s legal reporter Steve West.

Steve, good morning.

STEVE WEST: Good morning, Lindsay.

MAST: Well let’s start with defining terms. How does this bill define “anti-Semitism?”

WEST: Well, this is a definition that has been around since May of 2016. It was adopted, adopted by the International Holocaust Remembrance Alliance back then. And it was originally drafted for the purpose of collecting data on anti-Semitism in Europe. So what it says is that "Anti-semitism is a certain perception of Jews, which may be expressed as hatred toward Jews, rhetorical, and physical manifestations of anti semitism are directed towards Jewish or non Jewish individuals, and or their property towards Jewish community institutions, and religious facilities." And then it goes on to offer some examples of what how that might be expressed. And that's where some of the trouble comes.

MAST: What are some of those examples?

WEST: Right, well some at some of the things that it goes into, like, for example, expressing criticism of the State of Israel, that might be one. Anybody under the First Amendment should be able to criticize the policies of another nation. Accusing Jews as a people of being responsible for real or imagined wrongdoing, or even for acts committed by non-Jews, well, that may be wrong to do, of course, but it's not directed against a specific Jewish person as a threat. And so it's able to be expressed under the First Amendment. It doesn't violate the First Amendment.

MAST: As we mentioned earlier, this bill would affect how the Department of Education investigates harassment under Title VI of the Civil Rights Act of 1964. Remind us what Title VI does and also how this legislation would affect how it’s enforced?

WEST: I can. Title VI is a federal law that bars discrimination in any kind of federal program or activity that receives federal financial assistance---discrimination based on race, color, or national origin. So for example, the private school or public school that receives funds, federal funds, could be barred from participation in financial aid programs or in federal grant programs if they are shown to discriminate on any of these bases, and also imposes an obligation on them to look into and investigate any kind of allegation of discrimination.

MAST: At the end of the bill, there’s a section explaining what it would not do. For example, the legislation would not expand the authority of the Secretary of Education or infringe on the rights of those being investigated. Most importantly, it says “Nothing in this Act shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution.” So why the fears about how this could affect free speech?

WEST: Well, really two things. One is that just because you have that kind of language in there doesn't preserve the act from litigation. There's still got to be courts to figure out well, where is the boundary between the First Amendment free speech guarantee, and what's barred by this particular

definition, as it applies to Title VI? So you've got litigation that will ensue because of this, obviously.

The other thing is that many would argue this is a bad precedent, because it tries to, it's a form of a bar of hate speech. And so it's a regulation of speech, and because of that, infringes on free speech, and it could lead in the future to other types of hate speech litigation. For example, just imagine that they defined in Title VI, you know, what homophobia was, or discrimination against LGBTQ persons. And so religious students or religious schools that took the position that same-sex marriage was not allowed or that sexual expressions between two persons of the same sex were not allowed, may be accused of discrimination, and therefore have all federal funds withdrawn. So that's a danger that this could lead to. Whenever you're trying to regulate speech, you're infringing upon the First Amendment. And I think that's what happens in part in this particular definition.

MAST: Well, this bill is now headed to the Senate, so there’s still time for lawmakers to address some of these concerns. Final question here…is there any other aspect of this story you think warrants a closer look?

WEST: So I think what was important to keep in mind is that there are already protections for directed threats against Jewish students, violent activity, other types of things on campus, and many tools that some some administrators are not using. For example, you can have time, place and manner restrictions on protests that occur. Schools don't have to allow, of course, occupation of their buildings. They don't have to allow protests to occur 24/7. They don't have to allow the disruption of the educational environment for other students who are trying to study or go to class or take exams. All of that is proper under the First Amendment while still providing for avenues for them to protest. So there's still tools that are available there, of course, many ways to protect Jewish students as well without this particular law.

MAST: Steve West is a legal reporter for WORLD. Steve, thank you for your analysis!

WEST: Thank you, Lindsay.

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