Post October 7: Courts Recognize Antizionism Can Be Unlawful Discrimination
The prevailing fear in our community — that a Jewish student forfeits the law’s protection the moment she identifies as a Zionist — is the opposite of what these cases show.
In the two years since October 7, 2023, a consequential body of decisions has been building in American courts. Call them the Post October 7 Cases. They share more than a timeframe: they extend the protection of our civil-rights laws to Jews not merely as Jews, but specifically as Zionists — for their connection to, and their beliefs about, the Jewish state of Israel.
The prevailing fear in our community — that a Jewish student forfeits the law’s protection the moment she identifies as a Zionist — is the opposite of what these cases show.
These protections are neither new nor fragile.
Nearly forty years ago, in Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) — a case that itself arose from swastikas spray-painted on a synagogue — a unanimous Supreme Court held that Jews are a protected group under the federal civil-rights statutes. That holding has never been overruled or narrowed in the decades since; it remains the doctrinal bedrock on which modern antisemitism cases are built. Discrimination against a student because she is Israeli has likewise long been treated as national-origin discrimination.
What the Post October 7 Cases have added is a steady drumbeat confirming that a Jew’s connection to Israel is squarely a basis on which to invoke that protection — in the university, the synagogue, and the public square:
- Frankel v. Regents of the University of California, 744 F. Supp. 3d 1015, 1028 (C.D. Cal. 2024) — enjoining the exclusion of Jewish students “based on religious beliefs concerning the Jewish state of Israel.”
- Fiss v. California College of the Arts, No. 4:24-cv-03415-HSG (N.D. Cal. Jan. 14, 2025) — sustaining a claim that a Jewish professor was treated worse than “non-Jewish and/or non-Israeli faculty.”
- Kestenbaum v. President & Fellows of Harvard College, 743 F. Supp. 3d 297 (D. Mass. 2024), and Louis D. Brandeis Center for Human Rights Under Law v. President & Fellows of Harvard College, No. 24-11354-RGS, 2024 U.S. Dist. LEXIS 200937, 2024 WL 4681802 (D. Mass. Nov. 5, 2024) — Discrimination based on actual or perceived Israeli identity is “of course” discrimination based on national origin. (emphasis added)
- Sumrall v. Ali, 793 F. Supp. 3d 199, 208 (D.D.C. 2025) — Pulling on a flag containing a Star of David is direct evidence of racial discrimination against Jews based on their affiliation with Israel.
- Helmann v. CodePink Women for Peace, No. 2:24-cv-05704-SVW-PVC (C.D. Cal. June 13, 2025) — protecting attendance at a synagogue’s “Aliyah Event” on moving to Israel as an “exercise of First Amendment rights.”
- Fendel v. Vasudeo, No. 24CV096173 (Alameda County, California Superior Court Sep. 18, 2025) – denying school district’s motion to dismiss parent’s claim that anti-Israel curriculum was discriminatory)
I believe these cases clearly demonstrate that federal judges understand that in any forum a court would recognize, a Jewish student stands on precisely the same footing as a member of any other protected minority. If you still have reason to doubt this, just listen to the language used by the district court in the District of Columbia:
Purposefully yanking on an Israeli flag tied around a Jewish person’s neck to choke them is direct evidence of racial discrimination. The Star of David—emblazoned upon the Israeli flag—symbolizes the Jewish race…Battery, particularly involving a racial symbol, is strong evidence of racial discrimination. It is more severe than racial slurs or statements that constitute direct evidence. And targeting the Star of David is as racially motivated as the highly offensive racial slur, “n*****,” which constitutes direct evidence of racial discrimination.
Defendant has offered no benign interpretation whatsoever for choking [Plaintiff] and it is hard to imagine one. Her closest argument contends that the Israeli flag represents the state of Israel rather than the Jewish race, so her action is merely anti-Israel, not antisemitic. But it is quite a stretch to say that yanking on a flag tied around someone’s neck is an objection to state policies; battery is not a legitimate form of protest. Defendant did not have reason to think Plaintiff was herself affiliated with the Israeli government. Rather, it is much more likely that she was intentionally attacking a Jewish person wearing a Jewish flag as a symbol of her racial heritage. As Plaintiff’s counsel contended, if yanking on a flag emblazoned with the Star of David tied around a Jewish person’s neck at a pro-Israel protest is not discrimination, “I don’t know what is.”
793 F. Supp. 3d at 208 (cleaned up).
The fear that the law has abandoned Jewish students is self-defeating, because the real shortfall is not in the law, but in its enforcement. Too few Jewish students are coming forward to sue, and those who do too often aim at antizionist speech instead of antisemitic discrimination. Sharpen the target, and these cases become winnable.
This is also why the case most often cited as a setback is better read as an invitation. When the Jewish plaintiffs in StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology lost at the pleadings stage, it was not because the court doubted that the law protects them — the parties agreed that “discrimination against Jewish students comes within the statute’s prohibition.” The claim faltered on a narrower point: the court found that MIT, whatever its missteps, had in fact responded, so its conduct did not clear the demanding bar for deliberate indifference. That is a fact-bound shortfall, not a closed door.
Unfortunately, the First Circuit improperly entered the foray by unnecessarily opining that antizionism is not always antisemitism. But more recently, a judge who had not sat on the original panel wrote separately to explain why antizionist speech can itself be evidence of antisemitic intent. The lesson of MIT is, therefore, not that Zionists cannot win; it is a map of where the next case is won — document what the school knew, show that its response was effectively no response, and frame the harassment for what it is: discrimination, not debate.
None of this matters if no one comes forward to invoke the law’s protections. The protections are there, and they are robust; what is missing is the knowledge and the will to use them. The most urgent work in front of us is therefore not doctrinal but educational: teaching Jewish students and their parents what their civil rights actually are, and how to come forward and enforce them with a lawyer at their side. That is especially true in our public school districts, where antisemitic incidents go unreported and unredressed not because Title VI fails to reach them — it does reach them — but because no one stepped forward to invoke it. Change that culture, and we will no longer have to win the argument that the law protects Jews. We will simply prove it, one well-pleaded case at a time.
Mark L. Javitch is a California attorney offering pro bono services to victims of antisemitic discrimination through the Jewish Community Advocacy Council (“JCAC”). Follow him on X and sign up for JCAC updates.
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Comments
Antizionism is antisemitism. Zionism is a central part of Judaism. Those Jews who claim not to be Zionists have left Judaism just as those who believe in any false prophet have left Judaism. I’m sure some of the other Jewish participants on this forum can express it better than I have.
Amen, I think you said it well. Every ethnic group has it’s weirdos and fringe beliefs. Just because a small minority of Jews are supposedly antizionist does not mean anything. A small minority of Black people are likely hateful towards their own group, and a small minority of Miami Cubans are likely pro-Castro, etc etc. Stop elevating the fringe Jewish voices and start listening to the majority. I know AOC and Mamdopey can find one brain dead lesbian transgender rabbi to stand by their side and hate on Israel, that doesn’t mean anything other that tokenizing Jews to shield from your bigotry.
Indeed. The “Jewish antizionists” are all Jews by birth only (and often not even that), not by belief. There’s nothing Jewish about their beliefs.
Caveat: There are hundreds of thousands of intensely religious Jews who identify as “anti-zionist”, but what outsiders don’t understand is that they mean “zionism” in a sense that no one else ever uses any more. In the sense in which the rest of the world uses “zionism”, those Jews are actually extreme zionists. They have no sympathy for the “Palestinian” cause, and their objections to the State of Israel amount to it not being zionist enough.
As for the ones who are prominently seen at every “Palestinian” demonstration, they consist of literally a few dozen people, perhaps 100 worldwide, who are clinically insane and are not welcome in any Jewish community. They use the name “Neturei Karta”, but the actual Neturei Karta organization rejects them too, and has almost disappeared because its members are so embarrassed by being associated with these crazy people that they’re reluctant to identify themselves in public.
And the moral of our story is: don’t trust the corrupt, biased and antisemitic news to honestly relate anything. Always get the vile little creeps to define their terms.
Could you differentiate between the two different forms of zionism? Legit question. My own interpretation of anti zionism is that it is stupid b/c zionism was about whether the modern Nation/State of Israel should be created gaining more prominence and momemtum in the late 19th century to the Balfour Declaration, a pause of several decades till the end of WWII and the eventual ’48 UN vote in the wake of the holocaust. That question has been asked/answered not just in ’48 but by the Israeli State and it’s Citizens in every subsequent attack. Further I’d argue that anti Zionism, in this context, is evil b/c the modern Nation/State of Israel does exist and any calls to ‘undo’ that reality would be genocide …which the favorite chant of the anti Zionist goons seems to acknowledge: ‘from the river to the sea…’
You’re pretty much on the money. The religious anti-zionists are still using “zionism” in the old sense, as referring to a specific political movement that rejected Judaism’s belief that the 2000-year-long exile was God’s decree, and that while Jews must aspire every day to return to Israel and reestablish Jewish sovereignty there, and proclaim to the world their intent to do so as soon as God allows it, they must not attempt to achieve it by political or military means but must wait for God to act. Zionism rejected that view (and often any belief in God altogether) and insisted that if Jews wanted to return to Zion they must take matters into their own hands and do it themselves. That’s why a clear majority of rabbis rejected zionism.
Comes 1948 and the zionists acted on their own and succeeded, and the religious community was left having to react to the new reality. Some decided that zionism’s success proved that it was God’s will and should be embraced; most decided that while establishing the State of Israel had been wrong, it was now a reality that must be accepted, but with varying degrees of reluctance.
Most “anti-zionist” religious Jews are fully integrated into the reality of the State, and fully support its continued existence and its wars to preserve that existence, but reject its symbols — the flag, the anthem, Independence Day, etc — as still representing the anti-religious political movement. Many such Jews willingly serve in the IDF, but have great discomfort with the need that raises to acknowledge the symbols, such as saluting the flag, singing the anthem, etc.
None of them support the “Palestinian” cause.
Thanks.I appreciate your willingness to help me understand some of the subtle differences. If I understand correctly, what you describe is a sort of bifurcation of ‘Jews’ into two broad camps re Zionism more/less along religious interpretation lines re Temple of Jerusalem? The first holds a sort of traditional monotheistic God will do X for/to ‘us’ in his own time/manner and Mankind shouldn’t presume to intervene. The second holds a more ‘modern’ (not the best description as it is an old concept some view as rooted in Pelagianism but certainly more widespread in modern day) viewpoint that ‘God helps those who help themselves’.
Those camps have sub groups all of which acknowledge the fact that the modern Nation/State of Israel exists but some are still ‘uncomfortable(?)’ with the trappings of the Nation/State despite their willing service to the State. Is the reluctance to honor the National Colors/Anthem based on a separate religious objection or a continuation of the primary one?
How does the split work in the US and the West more broadly outside Israel? I presume it follows a similar pattern being centered on beliefs about establishing Temple of Jerusalem? Thanks again for engaging on this to help me understand.
The discomfort with the symbolism of the state but not with the state itself reflects a continued view that the people who founded the state in the first place were wrong to do so, because they were motivated by a belief that God doesn’t exist and if we wait for Him we’ll be waiting forever. So even though (in this view) the state is objectively a good and necessary thing, and its continued existence must be supported and defended, the event of its founding is still tainted and shouldn’t be celebrated.
Basically this community shares the zionist view that the Land belongs to the Jews, that the Arabs are squatters and invaders and have no rights there, that the Jewish population has the right of self-defense. By the usual definition that makes them zionists. But the political movement to found the state represented a rejection of God, so celebrating it feels like endorsing that rejection.
Bingo
I don’t know how much better or more clearly anyone can express the sentiment. This is pretty good, just as it is.
Just noting… about half of the cases cited involve institutions of “higher education”, well known today as centers of anti-Jewish action. Most of the cases occurred in deep Blue areas – California and Massachusetts, bastions of Liberal activism.
I’m just saying…
Indeed. Occam’s Razor indicates that the antisemitism, racism, violence etc., are projectile vomiting from blue states, blue cities, blue institutions (schools, media and pols) and blue organizations (see: SPLC). Add to that the attempted normalization of mental illness, perversion and child vivisection.
I can’t think of a single positive thing the Dem socialists have done since PRESIDENT Trump was elected, and have noted the excessive negative things they did during the Biden autopen regime.
Let the Dem projection begin, or continue, actually….
All the focus is on Occam’s Razor, totally ignoring his other fine shaving instruments.
It does provide a close shave after all.
“The droll barber” of French revolutionary fame?
May I point out that “Jewish” is no more a race than “Muslim” is a race, or Russian Orthodox is a race?
The word “racism” has been deliberately and methodically promoted as the sin above all sins since the 1960s. Using it to describe Jewhate simply embeds the term even more deeply, the use of which may have temporary benefits in an antisemitism case but is ultimately destructive of the culture we are desperate to save.
Disagree. Jews are not a religion, we are a nation that has a religion. Being a Jew is like being a US citizen; you can get it by birth or naturalization, and it doesn’t depend on what you actually believe. There are Moslem Jews, Russian Orthodox Jews, Buddhist Jews, and Roman Catholic Jews. Cardinal Lustiger of Paris was a Jew, and so was John Cardinal O’Connor, and of course so was St Edith Stein.
And in the heyday of racial theory, back in the late 19th and early 20th centuries, Jews were certainly thought of as a race. “Antisemitism” was coined specifically to refer to hatred of Jews as a race rather than as a religion. So to the extent that “race” even exists, Jews are a prime example of one.
Jew can refer to members of the Jewish ethnic group, or those of the Jewish religion. Many are both, but Jew usually refers to those who are ethnically Jewish, irrespective of whether they’re Jews by religion as well or devout Atheists etc instead.
Since Muslim covers multiple ethnic groups, and Jewish refers to a single one, albeit with some minor subgroups or variants, the two aren’t really comparable.
Perhaps a better example would be Native American by ethnic group or Native American by religion?
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