Would Tennessee's proposed Anti-Semitism Awareness Act, which directs schools and universities to use a specific definition of 'anti-Semitism' in discrimination investigations, violate free speech?

Plain-English summary

In 2019 the General Assembly considered HB 600/SB 1250, the Anti-Semitism Awareness Act. The bill would have required Tennessee state institutions of higher education and local education agencies to "take into consideration" a specified definition of "anti-Semitism," along with examples, when investigating discrimination complaints based on shared Jewish ancestry or Jewish ethnic characteristics. The definition came from the U.S. State Department's Special Envoy to Monitor and Combat Anti-Semitism (June 8, 2010 fact sheet) and is the same definition the U.S. Department of Education uses in its Title VI enforcement.

Rep. White asked whether the bill would violate state or federal free-speech and free-religion protections. AG Slatery's answer was no, and the reasoning has three threads.

First, what the bill does and does not do. It does not regulate speech or religious activity. It does not punish anti-Semitic statements, prohibit protests, or reach political speech about Israel. It guides state educational officials investigating prohibited conduct (discrimination on the basis of Jewish ancestry or ethnic characteristics) by telling them what counts as anti-Semitic intent. The actual prohibition (discrimination) comes from existing anti-discrimination law, principally Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) for institutions receiving federal funds.

Second, the First Amendment treatment of speech as evidence. The Supreme Court has held that the First Amendment "does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) acknowledged that some speech "can be swept up incidentally within the reach of a statute directed at conduct rather than speech." Lower federal courts have applied that principle in Title VI cases, allowing schools to consider expressive evidence when assessing motive (Bryant; Fennell). The Anti-Semitism Awareness Act fits squarely inside that doctrine: it gives officials a vocabulary for identifying motive without making the speech itself unlawful.

Third, the bill's own text guards against misuse. It expressly says the definition "does not diminish or infringe upon any right protected under the Constitution of Tennessee . . . or the First Amendment to the Constitution of the United States." It distinguishes anti-Semitism from political criticism: "[c]riticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic." And, as the AG noted, numerous existing Tennessee statutes already prevent public institutions of higher education and LEAs from infringing on students' freedom of speech or religion.

The AG noted that critics had raised concerns about specific examples in the State Department definition (such as the example treating "denying Israel the right to exist" as anti-Semitic) potentially capturing protected political speech. The AG's response was procedural: the bill itself does not punish speech, and officials applying it must do so consistently with the First Amendment. If they over-apply the examples to suppress protected political expression, that application would be unconstitutional, but the bill on its face is not.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does the Anti-Semitism Awareness Act actually regulate?
A: It does not regulate speech. It tells Tennessee public schools and universities what definition of "anti-Semitism" to "take into consideration" when investigating whether prohibited discriminatory conduct was motivated by anti-Semitic intent. The underlying prohibition (no discrimination based on Jewish ancestry or ethnic characteristics) is in other law, including federal Title VI.

Q: Why is the State Department definition important here?
A: It is the same definition the U.S. Department of Education uses in Title VI enforcement, so Tennessee's adoption brings state and federal anti-discrimination enforcement into alignment. The definition includes examples of rhetorical and physical manifestations and a separate list of examples relating to Israel.

Q: Doesn't the First Amendment protect anti-Semitic speech?
A: Yes. The AG opinion expressly says hateful and offensive speech, including anti-Semitic speech, is fully protected under Snyder v. Phelps and R.A.V. The bill does not change that. What the First Amendment does not prohibit is using protected speech as evidence of motive in a discrimination case (Wisconsin v. Mitchell). That is what the bill enables.

Q: What about protected political speech criticizing Israel?
A: The bill itself says criticism of Israel similar to criticism leveled at other countries is not anti-Semitism. Officials applying the definition must respect First Amendment limits. The bill does not prohibit pro-Palestinian advocacy, BDS organizing, or political speech about Israeli policy.

Q: How does Title VI work in this context?
A: Title VI (42 U.S.C. § 2000d) prohibits discrimination on the basis of race, color, or national origin in any program receiving federal financial assistance. As the opinion frames it, the prohibition reaches discrimination based on actual or perceived shared Jewish ancestry or ethnic characteristics, and the U.S. Department of Education relies on the same anti-Semitism definition the bill would adopt.

Q: What if a Tennessee school uses the definition to punish a student for protected speech?
A: That application would be unconstitutional, and the AG opinion expressly says so. The bill is not a license to punish speech. If misapplied, the application is what fails, not the bill.

Q: Does this opinion address private universities?
A: No. The bill applies to "state institutions of higher education and local education agencies." Private institutions operate under different legal frameworks (their own policies, federal Title VI compliance for those receiving federal funds, and contract-law-based student-handbook obligations).

Background and statutory framework

Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) prohibits discrimination based on race, color, or national origin by programs receiving federal financial assistance. Although Title VI does not list religion as a protected category, the Department of Education has applied it to discrimination against students based on actual or perceived shared ancestry or ethnic characteristics, and the opinion notes the Department relies on the same anti-Semitism definition drawn from the State Department's June 8, 2010 fact sheet.

The 2019 Tennessee bill would have layered a state-law procedural requirement on top of that federal Title VI structure: schools and universities investigating Jewish-ancestry discrimination must "take into consideration" the State Department's anti-Semitism definition and examples. That is a guidance-and-evidence rule, not a substantive new prohibition.

The constitutional analysis runs through standard First Amendment doctrine. Hateful speech is protected (Snyder v. Phelps, R.A.V.). But protected speech can be used as evidence of motive in conduct-based prosecutions (Wisconsin v. Mitchell). Title VI cases have applied that distinction (Bryant v. Indep. Sch. Dist. No. I-38; Fennell v. Marion Indep. Sch. Dist.). So a state law that helps officials identify anti-Semitic motive in discrimination cases is constitutional, as long as it does not metastasize into punishment of pure speech.

The bill's text does the work of staying within those limits. It expressly preserves Tennessee and First Amendment rights, distinguishes anti-Semitism from political criticism of Israel, and operates as a definitional guide rather than a speech regulation. Tennessee's existing free-speech protections (Campus Free Speech Protection Act § 49-7-2405; Student Religious Liberty Act of 1997 § 49-6-2901 et seq.) remain in place independently.

The opinion is a good example of the AG's job in advisory mode: not predicting whether the bill is wise policy, but explaining whether it is facially constitutional and how it must be applied to stay constitutional.

Citations

• 42 U.S.C. § 2000d (Title VI)
• Snyder v. Phelps, 562 U.S. 443 (2011)
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
• Wisconsin v. Mitchell, 508 U.S. 476 (1993)
• Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928 (10th Cir. 2003)
• Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398 (5th Cir. 2015)

Subject

Anti-Semitism Awareness Act

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2019/op19-06.pdf

Original opinion text

April 16, 2019
Opinion No. 19-06

Anti-Semitism Awareness Act

Question
Would proposed legislation that requires state institutions of higher education and local education agencies to use a particular definition of "anti-Semitism" when reviewing, investigating, or determining whether there has been a violation of laws and regulations preventing discrimination based on Jewish ancestry or ethnic characteristics violate the state or federal constitutional protections for the freedom of speech and religion?

Opinion
No. The proposed legislation does not regulate speech or religious activity directly. And if it becomes law, institutions of higher education and local education agencies in the State will be required to implement it in a manner consistent with the state and federal Constitution.

ANALYSIS

Proposed legislation, HB 600/SB 1250, 111th Tenn. Gen. Assem. (2019), would provide a definition of "anti-Semitism" that institutions of higher education and local education agencies (LEAs) in Tennessee would be required to use when investigating and enforcing anti-discrimination laws and policies. It defines "anti-Semitism" as "a certain perception of Jews that may be expressed as hatred toward Jews," and recognizes that "[r]hetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals or property, Jewish community institutions, and Jewish religious facilities." The proposed legislation also notes that the definition it provides is "the same as that used in the fact sheet issued by the United States [D]epartment of [S]tate on June 8, 2010, by the Special Envoy to Monitor and Combat Anti-Semitism." In addition, the proposed legislation includes a list of "[e]xamples of anti-Semitism" and a list of "[e]xamples of ways, taking into account the overall context, in which anti-Semitism is manifested with regard to the state of Israel." Again, it notes that both lists of examples are taken from the June 8, 2010, fact sheet issued by the U.S. State Department.

Under the proposed legislation, Tennessee public educational entities at all levels, including LEAs, public schools, and state institutions of higher education, would be required to "take into consideration the definition and examples of anti-Semitism provided" in the proposed legislation when "reviewing, investigating, or determining whether there has been a violation" of a policy or law "prohibiting discriminatory practices on the basis of an individual's actual or perceived shared Jewish ancestry or Jewish ethnic characteristics." The educational entity would be required to take the definition and examples into consideration for "purposes of determining whether the alleged practice was motivated by anti-Semitic intent."

The proposed legislation does not violate the expressive and religious freedoms protected by the federal and state Constitutions. Most importantly, the bill does not regulate speech or religious activity at all. State and federal anti-discrimination laws and policies, including those adopted in accordance with Title VI of the Civil Rights Act of 1964, which applies to every educational "program or activity receiving Federal financial assistance", prohibit not speech but a particular type of conduct, namely "discrimination." The proposed legislation provides a definition to guide state and local officials in identifying one particular type of that conduct, i.e. discrimination motivated by anti-Semitism, but does not itself restrict speech or religious rights or regulate any primary conduct. Instead, it requires state educational institutions to "take into consideration" the definition and examples of "anti-Semitism" in their investigation and evaluation of discriminatory practices for the purposes of determining whether those practices were motivated by animus toward Jewish ancestry or ethnic characteristics. The U.S. Department of Education has indicated it relies on the same definition of anti-Semitism in enforcing Title VI.

Hateful, offensive speech, including anti-Semitic speech, is fully protected by the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 458 (2011); R.A.V. v. City of St. Paul, 505 U.S. 377, 395-96 (1992). The proposed legislation would do nothing to alter or undermine that protection. Neither a State nor a public educational institution may suppress that speech or punish such expression unless it can satisfy exacting scrutiny under the First Amendment.

But the Supreme Court has also recognized that protected expression may be relevant evidence in evaluating whether an individual has engaged in prohibited conduct. In Wisconsin v. Mitchell, for example, a unanimous Court made clear that the "First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." 508 U.S. 476, 489 (1993); see also R.A.V., 505 U.S. at 389. Similarly, courts have repeatedly recognized that state officials are permitted to examine protected expression when enforcing Title VI and other anti-discrimination laws and policies, particularly for the purpose of evaluating motive or intent. See, e.g., Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928, 933-34 (10th Cir. 2003); Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409 (5th Cir. 2015).

Critics of similar legislation proposed at the federal level and in other States have raised constitutional objections based, in part, on their contention that some of the examples of anti-Semitism provided in the 2010 State Department definition, such as "denying Israel the right to exist," would allow an educational institution to punish students for protected expression that is not motivated by anti-Semitism but by political beliefs. But, as noted, the proposed legislation would not prohibit or punish any speech itself; it would only guide education officials in investigating and enforcing existing prohibitions against discriminatory conduct. The concerns expressed by those scholars and advocates arise only if education officials apply the definition in a manner that violates the First Amendment, which, of course, the Constitution prohibits.

Indeed, the text of the bill itself explicitly prohibits education officials from applying the definition in the manner suggested by these critics. The proposed legislation makes clear that the definition provided "does not diminish or infringe upon any right protected under the Constitution of Tennessee . . . or the First Amendment to the Constitution of the United States." And the definition of anti-Semitism also distinguishes its examples from traditional political speech, clarifying that "[c]riticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic." Moreover, numerous existing state statutes already prevent public institutions of higher education and LEAs in Tennessee from infringing on students' freedom of speech or religion.

In short, the proposed legislation would not undermine the protections provided by the state and federal Constitutions, as well as numerous state statutes, for the expressive and religious rights of students. If enacted it would be, indeed, must be, interpreted and applied in a manner consistent with those constitutional protections. The definition of anti-Semitism it provides would guide state officials in enforcing existing prohibitions against discrimination but would not regulate speech or religious activity directly. Accordingly, the proposed legislation would not violate the state or federal Constitution.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Mark White
425 5th Avenue North
Cordell Hull Bldg., Suite 624
Nashville, TN 37243