It’s Not Biased if It’s Against Jews
Jon Michaels and Matthew Segal
Civil rights law has always recognized coded discrimination, but a federal court decision suggests that may no longer apply to Jews—or their allies
A rioter breaks the front door windows of Hamilton Hall on the Columbia University campus in order to secure a chain around the building to prevent authorities from entering, April 30, 2024 in New York City / Alex Kent/Getty Images
To paraphrase Law & Order, in the American legal system, bias-motivated offenses are considered especially reprehensible. Punching someone is bad. Punching them for racist reasons is worse. So various laws, both criminal and civil, prescribe enhanced penalties in those situations. Sometimes the racism is unmistakable. At other times, it’s hidden behind code words or dog whistles—thugs, urban, globalists, etc.—or seemingly neutral markers like hair and dress. No matter; courts, prosecutors, and legislators have become quite adept at sniffing out crafty bigotry.
Yet the invocation of Zionism has, inexplicably, thrown them all for a loop. In the United States and across the globe, participants in purportedly anti-Zionist movements are committing crimes and civil offenses. Sometimes they harm Jews. Sometimes they harm non-Jews. But, in all cases, the people who commit these crimes—as well as their legions of defenders—argue that there is no bias. Any animus, they insist, is not antisemitic or anti-Jewish. It is anti-Zionist. Some of their best friends, these assailants are quick to add, are Jews.
As much as these claims have been dissected, debated and, regularly, debunked in a variety of settings, the courts are just beginning to weigh in. Will they treat the targeting of alleged “Zionists” as purely political—and thus not evidence of racial or religious bias? Or will they see it as integral to the racial and/or religious identity of American Jews?
Earlier this month, a federal district court judge in New York gave us a sneak peek at how the U.S. legal system might resolve what many see as yet another ham-fisted effort to work around long-standing civil rights laws. The results weren’t pretty. The court adopted a number of conclusions that, if accepted by other courts, would substantially weaken the civil rights of those harmed by anti-Zionist campaigns of harassment and violence. That’s bad news for Jews, their allies, and anyone else who happened to get in the anti-Zionists’ way.
If allowed to stand, the ruling could embolden more anti-Jewish agitators, effectively furnishing them with a virtual blueprint to harass without violating the KKK Act.
Mariano Torres and Lester Wilson, the men at the center of the New York case, got in the way. Neither Torres nor Wilson is Jewish. They are janitors employed by Columbia University. And like so many trying to go about their studies or jobs in Morningside Heights or around the country since Oct. 7, 2023, Torres and Wilson found their efforts impeded—and their lives imperiled—by those obsessed with Jews and Israel, the Jewish state.
On April 30, 2024, this obsession turned riotous. Masked militants, armed with hammers, knives, bolt cutters, chains, and zip ties, stormed Hamilton Hall and confronted the two working men. Torres and Wilson each refused to yield, which drew the ire of the rioters who then assaulted the janitors, detained them, sought to bribe them, and slurred them as “Jew lovers,” “Jew workers,” and “Zionists.” Eventually, according to their lawsuit, Torres fled, and Wilson was forced out of the building. The rioters, meanwhile, kept going. They seized the building, broke windows to chain the doors shut, barricaded themselves inside, and unfurled banners declaring an “intifada.”
Torres and Wilson later filed a civil rights lawsuit. With the help of the Louis D. Brandeis Center for Human Rights Under Law and the Torridon Law firm, the pair relied on the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, to argue that they were victimized by an anti-Jewish riot. A provision of that law prohibits people from conspiring to deprive “any person or class of persons of the equal protection of the laws.” To satisfy that equal protection component, plaintiffs must generally show that the conspiracy was motivated by “some racial or perhaps otherwise class-based, invidiously discriminatory animus.”
According to Torres and Wilson’s complaint, that’s precisely what occurred: The rioters, motivated by anti-Jewish animus, had conspired to deprive equal protection of the laws to people who are or are perceived to be Jews or supporters of Jews.
The clear focus of the lawsuit was illegal conduct, not speech. Torres and Wilson sought damages for alleged assault and battery during an illegal building occupation. They weren’t concerned with the rioters’ opinions on world affairs. They were concerned with the crowbars, rope, chains, and zip ties. They were concerned with their seizure of university property. They were concerned with being detained and threatened.
Torres and Wilson also happened to understand the nature of the riot because, allegedly, the rioters made it clear. Jews and those presumed to side with (or, gasp, love) Jews were the problem.
This is precisely the type of situation Congress anticipated when enacting the KKK Act—that is, the supercharging of ordinary crimes into far more socially corrosive hate crimes based on evidence of discriminatory animus. Yet the court twisted itself, the facts, and the law in knots, rendering an error-filled decision that had the effect of widening what we see as an emerging anti-Zionism exception to civil rights law. So long as you scream about Zionists and not Jews (or, as in this case, even if you interchangeably slur Zionists and Jews as you brandish knives and hammers), the courts will give you a hall pass.
We count four errors, none subtle and some gratuitous.
First, the court deemed it of critical importance that the rioters weren’t singularly focused on harming Jews. Defining the rioters’ objectives in terms of seizing a building and issuing demands related to Israel, the court seemed to insist that because the rioters had those intentions, they couldn’t also have had an additional objective: namely, to deprive Jews of their civil rights, including their right to access their school’s buildings without passing through a phalanx of occupiers seeking to identify Jew lovers.
As a matter of law, that can’t be right. With apologies to Walt Whitman, even violent bigots may contain multitudes. Klansmen tormenting Black families, for example, may genuinely be motivated by economic anxieties or other feelings of inadequacy. But that doesn’t mean their purpose isn’t also to deprive Black families of their political and economic rights. For how else, in their view, can they address those anxieties other than to knock Black people down a peg or two?
Here, if Torres and Wilson’s allegations are true (and at this stage of litigation, courts must assume as much), then the rioters were motivated to take the actions they did—occupying a building, issuing demands, and attacking perceived “Jew worker[s]” and “Jew lover[s]” who got in their way—partly because they wanted to harass and intimidate Jews. To bar them from buildings. To impede their studies. To limit their participation in campus and civic life. And to exclude them from positions of power. After all, if the janitors were, as the rioters allegedly said, “working for the Jews,” wouldn’t it be necessary for the rioters to knock those all-powerful Jews down a peg or two?
It’s possible to imagine a less clear-cut case, one in which people accused of bias could reasonably contend that their brand of anti-Zionism didn’t have any indicia of anti-Jewish animus. But that would have to be a case in which rioters didn’t allegedly toggle between anti-Zionist and anti-Jewish slurs. It would have to be a case in which those who deployed the term intifada and who sought to portray it as a benign reference to peaceful “struggle” hadn’t themselves used that term to describe their own violent, anti-Jewish riot.
In such a hypothetical case, a court might reasonably struggle with deciding whether the riot was anti-Jewish. Then, depending on the law at issue, the court might have to consider whether an anti-Zionist riot, even if not anti-Jewish, might still amount to discrimination based on national origin. (Israel is a country, and Columbia has Israeli students, staff, and faculty who enjoy the same rights as non-Israelis.)
But that was not this case. Given the facts alleged by Torres and Wilson, it is baffling that the court failed to recognize the riot’s anti-Jewish nature and purpose.
The court’s view—that the rioters merely wanted to seize a building and use the unfurled banner to effect transformative changes to Columbia’s policies—seemed to confuse tactical and strategic intent. True, the rioters allegedly deployed the tactic of taking over a building. But that doesn’t mean they did not have broader, anti-Jewish strategic aims. To suggest otherwise is to misunderstand what racism is and how it works. Racism does not cease to exist just because racists typically have a set of policy demands.
The second error was no less glaring and galling. In assessing the rioters’ alleged objectives, the court seemed to say that the evidence cited by Torres and Wilson could not possibly establish discrimination if it took the form of what the court called “political speech.” This included unfurling “intifada” banners and slurring Torres and Wilson as “Jew lover[s]” and “Zionists.”
But political speech can, of course, be racist. The phrases “America first” and “Spend your money with Americans only,” for example, are undoubtedly examples of political speech. And shouting those phrases, without more, is undoubtedly free expression protected by the First Amendment. But both phrases happen to have been popularized by the Klan. So if someone shouts them while committing a violent crime, that speech—though “political”—not only fails to excuse the crime but also may demonstrate that the crime was extraordinary, precisely because it was motivated by anti-Black racism.
Judge Colleen McMahon whiffed on this crucial point. Shouting about “intifada” or “Zionists” or “Jew lovers” while committing crimes doesn’t—or, at least, shouldn’t—save Torres and Wilson’s alleged tormentors.
Third, the court remarked that “the Jewish community itself is divided over whether anti-Zionism is inherently antisemitic.” Seemingly relying on that intramural dispute, the court declined to acknowledge that anti-Zionist rhetoric can be racist.
By inserting the modifier inherently, Judge McMahon gave away the ghost. What does it matter if some Jews think anti-Zionism is not inherently anti-Jewish? Characterizing someone as “a Jew” isn’t inherently bigoted either. As Adam Sandler has demonstrated, it might be downright celebratory. Yet it also, depending on the setting, can be racist. If someone menaces a woman on the subway, attacking her while calling her “a Jew” (or “Jew lover”), courts would certainly view such an utterance as evidence of anti-Jewish animus.
It is therefore stunning to see this court hold that the term Zionist—even when used as a slur—can’t, as a matter of law, ever be antisemitic or racist.
We struggle to believe that any court would apply similar standards to other groups and other code words or symbols. Some Black people are reportedly comfortable with the Confederate flag. But we would hope that no judge would use those reports as evidence that all Black people are estopped from alleging racism if someone takes over a building and raises the Confederate flag from its balcony.
The truth is that no minority group is monolithic. But diversity within a racial, ethnic, or religious group can’t be a reason to weaken civil rights protections for that group. Does anyone seriously think that if college campuses were to experience a wave of anti-Kwanzaa violence, the application of civil rights laws to that violence should hinge on polling Black people about their pro- or anti-Kwanzaa views? Again, we hope no court would think that.
Courts should not invent a different approach for Jews. Many Jews, including those experiencing the lion’s share of harassment and violence on college campuses and across the United States, feel that a connection to the ancient and present Jewish homeland (aka Zionism) is constitutive of their religious, ethnic, or national identities. Anti-Zionist Jews aren’t required to feel the same way. But neither are they empowered to deprive other Jews of the protections of this country’s civil rights laws.
And if that deeply felt connection between many Jews and Israel wasn’t enough to defeat an emerging anti-Zionism exception in civil rights law, the alleged facts of this case would be. The ease of fluency with which the rioters toggled among calling the janitors “Jew lover,” “Jew worker,” men who were “working for the Jews,” and “Zionist” should have sufficed in this case to bring Torres and Wilson within the protection of the KKK Act.
Fourth—yes, there’s more—the court seemed to think it mattered that Torres and Wilson were neither Jewish nor trying to defend Jews. Whether they’re incorporated into Sandler’s “Chanukah Song” lyrics is completely irrelevant. The KKK Act nowhere requires proof that plaintiffs are themselves members of the disfavored group. They need only be victims—collateral damage, if you will—of those who sought to target that group.
And for good reason. If white, Christian neighbors refuse to allow the Klan to run across their yard to reach a Black or Jewish family’s home—and are assaulted for their troubles—they are, justly, afforded a civil rights remedy. No one probes the victims’ motives, which could range from racial solidarity to human decency to the preservation of a newly sodded lawn. Otherwise, campaigns of racial or religious subordination could be advanced solely through the systematic targeting of third parties, leaving vulnerable minorities even more isolated and defenseless.
We assign no malice to the district court. But we genuinely wonder why Judge McMahon bought into a set of deeply problematic assumptions about the forms that anti-Jewish bias can take. If allowed to stand, her ruling will not only wrong Torres and Wilson, whom the court recognizes were treated “despicabl[y],” but also signal to other non-Jews—laborers, cops, and university presidents alike—that they, too, are at the mercy of the mob. Just as dangerously, the ruling could embolden more anti-Jewish agitators, effectively furnishing them with a virtual blueprint to harass without violating the KKK Act.
Our wonderment is heightened because, so far as we can tell, Judge McMahon’s ruling wasn’t generically hostile to civil rights plaintiffs of all kinds and creeds. It was distressingly bespoke, limiting the rights of people who are Jewish or Jewish adjacent. While we would hate to see an across-the-board retrenchment of civil rights, we can’t help but feel the sting that comes when one group, and one group alone at a moment of special peril, is denied the equal protection of the law.
Traditionally, this nation has made good on its constitutional promises by broadly construing civil rights protections, thereby bringing more groups into the fold. With some notable exceptions, this has been especially true of civil rights protections codified by statute. Even the current U.S. Supreme Court, with its conservative bent, recently read a civil rights law enacted in the 1960s expansively to protect transgender persons. Now, at a time when Jews are increasingly targeted for hate and violence, often under the troublingly talismanic anti-Zionist banner, Jews and their allies are being denied protection under existing civil rights laws by the very courts charged with applying them. The divergence of two sets of antidiscrimination norms—a broadening set of antidiscrimination protections for many groups and a narrowing one for Jews and their allies—is unmistakable.
We therefore hope that Torres and Wilson will appeal their case and that the court of appeals will recognize the district court’s missteps and make things right. To deter and punish anti-Jewish violence, our legal system must be capable of diagnosing it.
Jon Michaels is Professor of Law at UCLA Law School. The views expressed here are solely his personal views and do not reflect those of any employer.
Matthew Segal is Professor of the Practice in the Department of Political Science at Tufts University. The views expressed here are solely his personal views and do not reflect those of any employer.
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