Professor Marshall Breger of Catholic Law spoke at the Association of American Law Schools (AALS) convention in San Francisco on January 9, participating in a panel discussion titled "The Uses and Limits of a Definition of Antisemitism and Anti-Zionism on Campus." The panel, co-sponsored by the Constitutional Law Section and the Jewish Law Section of the AALS, featured additional panelists Andrea Martin from Penn State Law, Seth Oranburg from the University of New Hampshire Law School, and Diane Kemker from Pepperdine Law, who also served as moderator.

Breger’s presentation focused on analyzing various definitions of antisemitism proposed by interest groups and non-governmental organizations, with a particular emphasis on the International Holocaust Remembrance Alliance (IHRA) working definition. This definition, which includes anti-Zionism as a potential criterion for antisemitism, was originally designed as a heuristic tool to prompt closer scrutiny. Over time, it has been adopted as a guideline by numerous countries and organizations. However, it has also been codified into legal frameworks, including former President Trump’s Executive Order 13899, the Department of State’s policies, and legislation, regulations, or executive orders in a majority of U.S. states. Breger underlined that while the IHRA definition was initially intended as a reference point, it has evolved, in some cases, into an enforceable legal standard.

Central to his discussion was the question of whether the IHRA definition should remain a non-binding guideline or be treated as a legally enforceable framework. Breger examined its implications for Title VI of the Civil Rights Act, raising concerns about potential issues of overbreadth and vagueness if the definition is enforced in the context of civil or criminal sanctions.

Breger also critiqued how university administrators have applied the IHRA definition, noting that efforts to appease political figures and donors have sometimes led to the suppression of constitutionally protected speech, even as institutions appropriately act against improper behavior. His analysis called for a careful balance to ensure that addressing antisemitism does not come at the expense of free speech and academic freedom.