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:
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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