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As December 2022 approached, Palestinian-rights advocates grew nervous. That was the month by which the Department of Education’s Office for Civil Rights (OCR) had promised to issue a new rule for assessing complaints of antisemitism, to comply with former President Donald Trump’s 2019 executive order on the subject. Advocates worried that in putting forward the rule, OCR might formally propose adopting the controversial International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, which has been criticized for conflating censure of Israel with anti-Jewish bigotry.
But December came and went with no rule published. Instead, on January 4th, OCR announced that it was delaying issuing the rule until December 2023 and released a fact sheet affirming its commitment to fighting antisemitism, as well as other forms of bigotry. Jewish groups that support the use of the IHRA definition were dismayed. “We note our disappointment in the 12-month delay in the Department of Education’s promulgation of long-promised regulations to combat antisemitism,” the leadership of the Conference of Presidents of Major American Jewish Organizations said in a statement. Progressives celebrated the deferral as a small win. “It demonstrates that the IHRA definition is not being viewed as the gold standard,” said Emma Saltzberg, US strategic campaigns director for the Diaspora Alliance, a group that fights antisemitism and its weaponization, including claims that criticism of Israel or Zionism is inherently antisemitic. “It shows that the Office for Civil Rights is taking seriously the concerns that a wide range of stakeholders have raised.”
The executive order to which OCR is responding has been widely understood as an effort to encourage adoption of IHRA. The Trump administration directed federal agencies that enforce Title VI of the Civil Rights Act—which bans federally funded institutions from discriminating against minority groups—to consider how they could incorporate the definition into their work. Criticism of IHRA from Palestinian-rights and civil liberties advocates has focused on the examples of antisemitism that accompany the definition, which seem to label some forms of criticism of Israel as antisemitic, including statements like “the existence of a State of Israel is a racist endeavor.” The State Department uses the definition in its reports on antisemitism and encourages other countries to adopt it, though no other executive agency currently uses it. Israel-advocacy groups have defended the definition and its examples. “The IHRA definition is a crucial tool in properly understanding and addressing the continued rise in hate that is causing real harm to Jews, especially students on our nation’s campuses,” Roz Rothstein, CEO of the Israel-advocacy group StandWithUs, told Jewish Currents.
Although Palestinian-rights advocates breathed a sigh of relief at the news that OCR had not adopted IHRA, their clash with mainstream Jewish groups over whether the definition should be used in adjudicating civil rights claims is far from over. Trump’s executive order remains in effect, and the office could still decide to use IHRA when they issue their rule next year. “It’s encouraging for the broader fight against the adoption of IHRA that OCR saw it as too controversial to enshrine in regulations now. But that doesn’t mean they won’t make a different decision in the future,” said Saltzberg. “This is something advocates on all sides are going to keep an eye on.”
The promised rule could change the way OCR adjudicates Title VI complaints about antisemitism. Though Title VI of the Civil Rights Act does not name religion as a protected category, in 2004 acting OCR head Kenneth Marcus—who would later found an Israel-advocacy organization and serve as Trump’s appointed head of…
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