As the legal director of The Deborah Project, I use legal tools to fight the spreading surge of antisemitism in public education. In the two years since Oct. 7, 2023—the modern period of Jew-hatred normalization—the vilification of Jews and the Jewish State has spread from the college campuses to high schools and even down to pre-K classrooms. This has occurred in the presence of, and even been promoted by, public education professionals. We’re still in the beginning stages of Jew-hatred indoctrination; if we fight hard and don’t cut corners, we can win. If we try to appease those intent on indoctrination, and those content with allowing it to fester and grow, we will lose. And then it really will be time for Jews in America to flee.
What We’re Seeing
One of my clients was a 12-year-old Israeli-American boy. When he first entered middle school in the fall of 2023, he was brutalized by classmates for months. His family, he was told repeatedly, were “baby killers” and that his people were committing genocide. A classmate also announced in the cafeteria that “nobody likes the Jews.” The school and the administration held lots of meetings and even developed a “safety plan” for this boy: he could leave the room to get his phone and call his parents to come get him if he was being tormented. Who cares about stopping the assaults or ensuring his free access to education? But even the safety plan was ignored when he tried to implement it. And nothing more was attempted to stop the trauma being inflicted on this 12-year-old boy in a suburban school district.
Toward the end of the school year, a group of boys surrounded a 12-year-old Israeli-American. They demanded that he get down on his knees and apologize for being a Jew. That’s right, in 2024, in America, this is what middle school boys came up with. Again, there was no intervention by any “grownups.” The boy was left to fend for himself. And then, on the last day of school that year, some of these same bullies tackled the boy, pulling his pants down in the school yard. Twice. Is there a more potent humiliation for a pre-teenage boy? And once again, the school did nothing effective. There were meetings, yes, but action? No.
In another case, a ninth-grade teacher, riffing on a student’s answer to her that his grandfather hid from the Nazis during World War II, decided it was a good time to tell the class that she knew some Holocaust jokes. Most of the students encouraged her.
“How do you get 10,000 Jews into a Volkswagen?” she asked. Her answer: “Put them all in the ashtray.” In this same district, a teacher told a student he could tell she was Jewish because of her nose. And yet another teacher, this one of world history, began describing the October 7 conflict to his class by talking about the invasion of Gaza by Israel. One client in this district was forced to put false answers on her quizzes, such as that Israel set up checkpoints so that they could prevent Arab men from getting to work, and that Palestine was created by the UN in 1947. She wrote those things knowing they were wrong—she would have failed the test otherwise—and knowing that her classmates learned those points “as facts.”
These are just a few of the many and varied cases we have at The Deborah Project.
Fighting Back
It is good to be fighting back, using legal skills to fight in the only way we can. We Jews in America, and all Jews throughout the world, are grappling with something none of us could have imagined we would confront anywhere ever again. Sure, we all knew that lots of people don’t like Jews. But now Jew-hatred is being taught in public school districts, on college campuses, on podcasts, and in the streets. Its normalization has spread from ugly pockets on the left, and it is now being openly expressed by very public figures on the right. We are learning, once again, and it is painful, once again, to know that we are expendable. To those of us whose fathers told us that during the Holocaust, “no one cared about us,” we—I—now must acknowledge that what they said was true: they didn’t care, and they still don’t care.
And now, the biggest marker of the normalization of Jew-hatred, of course, is that New Yorkers elected a mayor who not only openly hates Jews and the Jewish State, but who has virtually no managerial skills or budgetary experience. It isn’t as if he had a stellar background, and he happened to hate Jews. No, Zohran Mamdani is just photogenic, telegenic, a snake oil salesman, and it appears to be a bonus, not a disqualifier, that he’s an unabashed Jew-hater.
No one reading this article will be surprised by how bad things are. But what is essential to know is that there are ways to fight back; we do not have to be those “Jews with trembling knees” that Israeli Prime Minister Menachem Begin disdained when he rebuked then-Senator Joe Biden, who had threatened to withhold US aid.
In the now more than two years since we’ve found ourselves in this legal battle, we’ve learned an enormous amount about which legal fora are likely to yield a worthwhile result, and which are disappointments that burn through energy, resources, and time—none of which we can afford.
A Legal Primer
Let’s start with a short legal primer, legal facts every Jew dealing with antisemitism in education should repeat as mantras. First, in virtually every federal district court in the country, it is the law that public school teachers do not have free speech rights in their classrooms or when otherwise acting in their official capacities as teachers. That’s right, repeat it over and over to yourself and then repeat it clearly and distinctly to anyone who tells you otherwise, whether that’s your child’s teacher, the superintendent of your school district, or the local teachers’ union.
The impassioned claim by progressive activists shrieking about teaching “their truth” or claiming they are being censored—they’re wrong, you’re right. A big factor in winning this worldwide war against the Jews is refusing to back down. Refuse. Stand firm. This arrow in our quiver was placed there by the US Supreme Court.
And what about the argument that the fighting Jews are stifling the deity of free speech by seeking to limit what can be said about Jews? How dare we claim that calling for the world to murder the Jews in their midst is hate speech? Well, boys and girls, that train left the station long ago. When Congress passed the 1964 Civil Rights Act and created “protected classes” against whom certain threats and insults would violate the law, we impinged upon an important right to uphold another one. And it didn’t end there.
A few decades later, sexual harassment became punishable by law through a focused and defiant series of lawsuits. Those lawsuits eventually carved out an area of law proscribing certain kinds of crude, sexist, and sexual remarks and behavior in the workplace. The argument that whole categories of speech, which may be subjectively perceived differently by different people was not sufficient to overcome the creation of a revised legal landscape. And so it must go with threats against and attacks on Jews.
To make a showing in today’s climate of antisemitic harassment in education, two threshold questions must be overcome:
- Given that most but not all antisemitism is currently cloaked in anti-Zionism, we must show that anti-Zionism is frequently used as a dog whistle for Jew-hatred, and that Zionism is an integral component of Judaism. That isn’t easy for most non-Jews, and even many Jews, to understand.
- The federal statute that outlaws discrimination in education—Title VI of the Civil Rights Act of 1964—does not include religion in its list of protected classes. We have had significant movement addressing the second problem, which has folded what otherwise would be considered religion for harassment purposes into two categories that are protected: ethnic identity and shared ancestry. This has slowly emerged from opinions issued by the US Department of Education, and courts have begun to recognize this as well.
Where Zionism Fits
What about anti-Zionism? Is Zionism merely a political position, as claimed by so many folks demanding that Zionists be barred from student organization positions, or as teachers, or as school board members? Or is Zionism fundamental to Judaism? If the latter, attacking Zionists should be subject to anti-discrimination law. This is the battle that is currently center stage in the legal war against Jew-hatred.
It is the battle over protecting Zionists/ism in which the many noxious “As a Jew Jews” play an outsized role. The “As a Jew Jews” (“AAJJ”) are people of Jewish ancestry for whom being Jewish is only of interest when they can flash their “Jew card” to add heft to their criticisms of other Jews or Israel. Most AAJJ do not participate in Jewish life and certainly do not feel a connection to Israel, the Jewish State. We have had defendant college presidents blithely dismiss Jewish students suffering from antisemitic trauma, particularly after Oct. 7, 2023, by pointing out that she has “other Jews” for whom Israel and Zionism are unimportant—or worse.
We have sought to overcome this argument in two ways: first, by listing all the times and manners in which the practice of the Jewish religion invokes Zion (Israel): in its thrice daily prayers, every major Jewish holiday, the Jewish calendar, the Jewish liturgy, and in its Jewish religious customs, such as breaking the glass at the end of a Jewish wedding, and ending every Passover seder with the phrase, “Next Year in Jerusalem!”
The second step to defeating the charge that anti-Zionism is not a form of antisemitism is to point out how absurd it would be to claim that because not all Christians attend church services every Sunday and not all Jews attend Shabbat or daily services, those rituals should not be considered integral elements of Christianity and Judaism. It is hard to imagine even the current crop of Jew-haters claiming that it isn’t antisemitism to attack people for attending Sabbath services. And the vast majority of Jewishly-identified Jews who virtually never attend Shabbat services would be outraged to hear it suggested that attacking the observant practices of Judaism would not constitute antisemitism.
Interestingly, the two times we’ve put the pages-long examples of how central Zion is to Judaism in a legal complaint, the federal court judges (neither of whom were Jewish) were incensed. But we will continue with this effort because this is the central fact: Zionism is inseparable from Judaism, and as such, deserves legal protection.
On the Path
Despite the many difficulties, recourse to the law is the only way to protect minorities in the United States and we are heartened by the knowledge that so many other groups—blacks, gays, working women—have had to tread the same hostile path strewn with initial failures and then small progress, and eventually entering that solidified location in the legal landscape of protection for minorities that our system of justice proudly affords.
We are aware that we are operating in two very different fora: the judicial courts and the court of public opinion. The more information we can put into our public documents and the more the general public learns about the various points we are raising, the greater the tide toward a general acceptance of these threshold matters. This is another reason litigation is so important. The arguments we make in one case can be absorbed and spread exponentially.
Of course, an additional factor in our favor now is that we have a sympathetic ear in the executive branch—we haven’t had that for most of the past few decades, when the scourge of antisemitism had been slowly bubbling up to the surface. We also now have sympathetic federal legislators who see it in their interest to press these issues. We must learn to work with these people and help them help us.
Our enemies have been in this march against us for at least 50 years. The attacks on Israel and on Zionism are simply a resurgence of the “Zionism is racism” canard pushed by anti-Western forces, which have been operating to spread these ideas for decades, and which gained a victory in the United Nations in 1975, only to lose it in 1991. We, by contrast, are just now arriving on the battlefield.
We are now where the NAACP Legal Defense Fund was when it was founded in 1940. We have a long road ahead of us to persuade the courts and also the public that Jews and their commitment to Israel are entitled to legal protection—not because we are above criticism, but so that (1) no government-funded teacher can denounce them on their paid time and (2) every Jew is entitled to an environment free from harassment about these issues.
Lori Lowenthal Marcus is director of The Deborah Project, a public interest law firm dedicated to representing Jews facing antisemitic discrimination on K-12 and college campuses.
