Jewish advocates are treating a recent decision as a repudiation of Jewish civil rights in America. See, e.g., The Anti-Zionism Exception: A court decision just carved Jews out of civil rights law. However, this holding needs to be properly understood and interpreted in context. Civil rights protections remain robust and Jews should be encouraged to familiarize themselves with the remedies that can be obtained by victims of antisemitic discrimination in the court system. 

In the case referenced, Jewish students sued MIT for antisemitic discrimination, but the suit was dismissed. The students appealed, but they lost again. In affirming the dismissal, the First Circuit Court of Appeals appeared to enter a contentious debate when it declared that antizionism is not equivalent to antisemitism. 

Such a statement is strikingly out of step with contemporary Jewish education. Jewish scholars Dr. Naya Lekht, Professor Rona Kaufman, and others have been at the forefront of warning Jewish communities that contemporary antizionism functions as today’s iteration of historic antisemitism. Narratives that portray Israel—or its very founding—as the singular cause of complex conflicts are not merely incorrect; they are advanced in bad faith. Such claims routinely impose a double standard, singling out Israel for condemnation while overlooking or excusing comparable or far more egregious conduct by other states. Dr. Lekht’s research further traces contemporary antizionist slogans to Soviet-era propaganda campaigns designed to delegitimize Zionism on the world stage.

Because it is propaganda brought in bad faith to undermine Judaism, antizionist philosophy and advocates should be completely expelled from our Jewish communities. 

Lekht and Kaufman attribute the court’s conclusion to a failure to recognize the Jewish people’s historic and enduring connection to Israel. Accordingly, they have intensified their efforts to explain that antizionism is not legitimate political criticism, but instead the latest iteration of a longstanding pattern of antisemitism. They argue that once we have time to educate and persuade people that contemporary antizionism seeks to sever and delegitimize Jewish connection to Israel, it will be recognized for what it is: a hate movement that targets Jewish identity in a manner indistinguishable from other forms of racial or ethnic animus.

While their assessment that the modern form of antisemitism is antizionism is correct, and their approach to educating the Jewish community is needed, that does not mean that our strategy in court cannot be refined. We must not treat the MIT loss as an obstacle in an ongoing civil rights struggle. Instead, it should be treated as an instructive lesson for how to successfully select cases that will accurately demonstrate antisemitic discrimination in future lawsuits.

Rather than urging courts to equate antizionism with antisemitism, I ask Lekht and Kaufman to consider that our ability to impose consequences against antizionism by characterizing it as inherently antisemitic discrimination is limited by the First Amendment. While it may appear like making a concession, it will actually make our lawsuits against antisemitic discrimination much stronger.

Across the country at UCLA, a different court had little difficulty recognizing antizionism in the context of antisemitic discrimination. The court quickly sided in favor of the Jewish students.

How could two courts have reached such different conclusions regarding antizionism? The contrast demonstrates that courts will recognize antizionist discrimination without first having to address whether antizionism is equivalent to antisemitism.

What the UCLA plaintiffs did right

The UCLA case succeeded because it alleged discrimination based on antizionist exclusion, not antizionist speech.

Jewish students alleged that they were physically excluded from ordinarily available portions of campus unless they renounced support for Israel. Pro-Palestinian protesters established checkpoints, demanded wristbands, blocked access to major thoroughfares, and conditioned passage on ideological compliance. Jewish students avoided those areas because they reasonably believed they would be forced to disavow their faith to pass through them. UCLA continued to provide programs, facilities, and campus spaces to other students despite knowing that Jewish students were excluded from those same spaces on religious grounds.

Crucially, the plaintiffs did not ask the court to resolve debates about foreign policy. Jews merely sought to have equal access to campus resources without religious coercion. Courts will not regulate political speech, but they will enforce rules against religious exclusion, even when third parties engineer it.

What the MIT plaintiffs did wrong

The MIT plaintiffs alleged a hostile environment under Title VI based largely on antizionist chants, protests, posters, faculty statements, and student activism following October 7. 

Signs at MIT read “No to Zionism and Racism,” “Zionism is apartheid, it’s a genocide, it’s murder, it’s a racist ideology rooted in settler expansion and racial domination and we must root it out of the world. Zionism is a death cult.” Protestors yelled: “From water to water, Palestine is Arab!”; “Palestine is free, Israel out”; “We want to talk about the obvious, we don’t want to see Zionists”; “The iron gates of Al Aqsa, open for the martyr!”; and “From water to water, death to Zionism!”

This language is obviously pretty hostile. This does not appear to be good faith dialogue. However, the First Circuit rejected the notion that other students’ antizionist speech could form the basis of the discrimination complaint.

The court drew a bright line between discriminatory conduct and political expression. The bar for what constitutes political expression is low. Speech about Israel and Palestine, however misleading, offensive, or hateful, is treated as speech on a matter of public concern and therefore entitled to heightened constitutional protection. Title VI could not be used to compel a university to suppress such speech without violating core First Amendment principles.

Most devastating, the court refused to accept the plaintiffs’ central theme: that because Zionism is integral to Jewish identity, opposition to Zionism must be treated as racial or ethnic discrimination as a matter of law. Despite what we immediately recognize as blatant Jew hatred, courts cannot accept the proposition that antizionism is always antisemitism as a legal rule. If we continue to argue, for instance, that speech glorifying Hamas’ actions on October 7 is hate speech that creates a hostile environment, we will continue to lose.

Understanding the Difference Matters for Future Lawsuits

Some will object that universities frequently punish other forms of offensive expression—so-called “microaggressions,” racially insensitive remarks, or even a refusal to use a student’s preferred pronouns—and argue that antizionist speech should be treated the same way. But that comparison conflates campus policy with constitutional law. Universities often adopt expansive speech codes that classify a wide range of expression as policy violations.

Whether those policies are wise, consistent, or lawfully enforced becomes a separate question. The point is that such conduct reflects the discretion and prevailing doctrine of university leadership—not a judicial determination that microaggressions or pronoun refusals fall outside First Amendment protection. Antizionist speech, by contrast, squarely implicates core political expression on matters of public concern.

Understanding this distinction only strengthens our legal strategy. We know that Jewish students are indeed facing antisemitic discrimination, but students are unlikely to complain because of fear of retaliation. The lesson is not to retreat from enforcing civil rights laws on behalf of Jewish plaintiffs. The lesson is to enforce them more often.

We want lawyers and plaintiffs to bring forward cases without being seen as attacking others’ political speech. The task is not only to educate Jews about antizionism, but also to change the culture so that Jews are willing and able to bring discrimination claims in court. That depends on educating Jews about meritorious legal strategies. 

The hardest lesson we have to learn from MIT is that under our system, even bad-faith and malicious antizionist speech is legal. Recognizing the gap between UCLA and MIT, however, does not require us to concede our principles. It merely requires a change in tactics. We must embrace the MIT decision and revise our approach, rather than disputing its foundation, which is based on long-settled precedent. We must tolerate offensive speech precisely to prevent people from deciding which political views are legitimate. We will strengthen our position by recognizing the limits of viewing all antizionist speech as discrimination. That move overreaches, weakens otherwise strong cases, and triggers judicial resistance rooted in centuries-old free-speech doctrine. By learning this lesson from the First Circuit, we will more often be able to bring successful discrimination cases on behalf of Jewish victims. 

© The Times of Israel (Blogs)