Introduction
In an earlier article, I alerted readers to a recent settlement of a lawsuit initiated against Harvard University by the Louis D. Brandeis Center for Human Rights Under Law, Students Against Antisemitism, and Jewish Americans for Fairness in Education for failing to protect the civil rights of Jewish students from antisemitic discrimination.
The lawsuit alleged that Harvard violated a number of its own policies as well as Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the basis of race, color, and national origin, including discrimination against Jews.
The settlement’s key provisions bear repetitionⁱ:
Adoption of the IHRA definition of antisemitism for purposes of discipline
Explicit recognition of Zionism as a protected category under the university’s non-discrimination policy
A dedicated position for antisemitism complaints and reporting
Annual public reporting on antisemitism-related cases and their outcomes for at least five years
Mandatory outside training for staff reviewing antisemitism complaints
Expanded academic programming on antisemitism
Partnerships with an Israeli university and with the Brandeis Center
Harvard Hillel pointed out that this list did not represent everything that can, should, or must be done to address campus antisemitism. For example, Hillel indicated that it remains necessary to address the entrenched anti-Zionist orthodoxy in certain academic fields. As well, any such settlement can only be evaluated by the extent to which it is implemented.
The Harvard lawsuit represents only one of many lawsuits against American universities and colleges to address their failures to protect Jewish students from antisemitism on their campuses. In some instances, university administrations in the United States have not merely failed to act decisively but have been complicit in creating poisoned environments for Jewish students, faculty members, and staff.
Campus Antisemitism in Canada
In Canada, the plight of Jewish students, faculty, and staff has been equally (or more) problematic at a number of campuses. The prevalence of antisemitism on Canadian campuses was well described in the December 2024 Report of the House of Commons Standing Committee on Justice and Human Rights, entitled “Heightened Antisemitism in Canada and How to Confront It.”
The report documented toxic environments for Jews on Canadian university and college campuses, failures to enforce existing codes of conduct, and other inaction in the face of critical levels of campus antisemitismⁱⁱ.
Unfortunately, pervasive antisemitism persists at a number of Canadian universities and colleges.
Whether litigation should be pursued in Canada
The Harvard settlement has prompted many Canadian community members to ask why we don’t pursue similar legal remedies here to address antisemitism on our campuses. This is especially so when we see a seemingly constant stream of events on or off campuses initiated by faculty or students that promote hate speech, feature supporters of terror, or demonize Jewish faculty, students and staff.
As illustrative only, University of Toronto’s Muslim Students’ Association was to co-host an event featuring Shadi Shurafa, a convicted terrorist and member of the Popular Front for the Liberation of Palestine (PFLP), a prohibited entity in Canada. After significant backlash, the event was purportedly cancelled, although another organizer indicated there was a high probability that it would take place online.
University of Ottawa’s Institute of Feminist and Gender Studies was reported to be a sponsor of an event featuring Nada Elia, a Palestinian American associate professor who argues that Israel faked the rapes and sexual mutilations of Israeli women by Hamas on October 7. Not surprisingly, the topic of her anticipated speech: “Weaponizing Feminism in the Service of Genocide.”
Faculty members demonize their Zionist colleagues on social media and on campus despite existing codes of conduct that ostensibly address not only criminal hate speech, but speech, intimidation, and harassment that create a poisoned environment even for Jews who merely express support for the existence of the State of Israel. They are collectively accused of being genocidal, racist, and evil. Colleagues are invited to compile a list of Zionist academics to ensure they and their work are ostracized.
Seemingly, no conference topic is too venomous, unbalanced, or distorted to be organized on campuses or online, or sought to be justified under an equally distorted interpretation of the scope of protected speech.
Here is a harsh dose of reality. A number of university administrations are afraid or unwilling to take the action needed to reverse the poisoned environment for Jews they have allowed to flourish. Canada has now been identified internationally as a hotspot for campus antisemitism and extremism. You know things are out of control when holocaust education and remembrance events are hijacked by anti-Israel agitators and when student, faculty and public sector unions invite anti-Zionist speakers to educate them on antisemitism.
I believe in education that encourages diversity of perspectives, respectful dialogue with those who disagree with us, as long as we and our beliefs are not demonized. Many of us will continue to educate and dialogue, as we should. But in my view, many Jewish students, faculty and staff, and their allies who are Zionists, will continue to be exposed to pervasive campus antisemitism unless external bold action is taken: whether through legal action by or on behalf of community members or through intervention by federal and provincial governments.
A courageous student, strongly supported by CIJA's Legal Task Force, has sued TMU, ranking high on the list of toxic campuses for Jews, for breaching its own policies and duty of care owed to her and all students, staff, and faculty. That duty of care is described in her statement of claim as including:
Providing an environment that is safe, free from intimidation, harassment, and discrimination
Fostering a collegial study and work milieu that is free of discrimination and harassment and one in which all individuals are treated with respect and dignity
Exercising its authority to prevent discrimination and harassment, to penalize the repetition of discrimination and harassment, and to respond promptly to known or apparent incidents of discrimination and harassment, whether or not a complaint has been filed
Enforcing the TMU Conduct Policies when such policies are violated or potentially violated by students, staff and faculty.
Reinforced by a detailed list of antisemitic incidents at TMU, which has a long history of antisemitism permitted on campus, the plaintiff claims damages, including punitive damages, for the breach of TMU’s Conduct Policies, violations of TMU’s duty of care, and of Ontario’s Human Rights Code.
Such litigation should be vigorously pursued elsewhere, including the University of Torontoⁱⁱⁱ. It too has a sad history of antisemitism which many of us unwisely felt, for years, had largely been overcome. However, antisemitism continues to thrive at the university, fueled in this generation by the extremism on the left and rightⁱᵛ. I will explain why I focus on University of Toronto in today’s article, but I could as easily identify a number of other Canadian universities.
The modern strain of antisemitism, which originated in Soviet Russia, is the denial of the legitimacy of Israel’s very existence as a Jewish democratic state, and demonizing Zionism and all Zionists (including 91% of all Canadian Jews who believe that Israel has the right to exist as a pluralistic Jewish state) as racists. The obscenity of this libel is particularly painful for those of us who counted ourselves as members of the progressive left, a movement now hijacked by extremism and disinformation.
We advocated for Palestinian self-determination alongside Jewish self-determination, called out far-right Israeli governments and policies and the settler movement on the West Bank, while recognizing the fundamental need and justification for a Jewish state – all the more evident in the aftermath of October 7 and repeated violence by Hamas and Iran’s other jihadist proxies to prevent peace in the region.
In advocating for legal action to address pervasive antisemitism at University of Toronto and elsewhere, I recognize that our legal and political framework is different than our American counterpart’s framework. This often works against us; sometimes, in our favour.
How does it work against us? American litigation against universities is predominantly rooted in its Title VI anti-discrimination legislation. This is federal legislation, heavily reliant on the federal government’s central role in providing funding to American universities. For example, in 2023, Harvard received $676 million in federal funding. It is significant that Title VI legislation does not require the burden of litigation to be shouldered by a specific Jewish student or plaintiff, a requirement that is a disincentive to litigation.
Title VI remedies can be sought by the federal government on its own initiative. Indeed, the U.S. federal government’s recent strong support for “getting tough” on universities that allow antisemitism to flourish provided critically important impetus for universities (including Harvard) to settle existing lawsuits or head off government intervention.
In Canada, litigation of this nature is often conditional on an individual plaintiff’s “standing.” “Standing” refers to a requirement that the plaintiff show the university’s breach of a duty owed to that individual. A “standing” requirement may serve as a disincentive because a plaintiff is exposed to intimidation, such as doxxing or threats, and ostracization for coming forward.
There are arguable ways to eliminate the need for individual standing that are beyond the scope of this editorial, but standing does represent a challenge that distinguishes us, to some degree, from our American counterpart.
In Canada, universities and colleges fall within provincial jurisdiction. Provincial governments, unlike their federal counterpart in the United States, have shown no appetite yet for the denial of funding or making funding conditional on educational institutions addressing antisemitism.
Contrary to conventional understanding, the federal government also provides funding to colleges and universities, including through allocation of research grant monies from the tri-council agencies (NSERC, SSHRC, and CIHR), but again we have seen no action to date by the federal government (despite recommendation 9 made by the House of Commons Standing Justice Committee) to address failures to protect Jews from campus discrimination through the denial of funding or conditional funding.
The Ontario government is also uniquely situated to intervene through application of its own Bill 166, Strengthening Accountability and Student Supports Act, 2024. More specifically, the Minister of Colleges and Universities can issue directives to colleges and universities under s. 20(4) of the Act in relation to the manner in which their policies and rules address and combat racism and hate. The Ontario government could play a leadership role in combatting campus antisemitism in this way. This hasn’t taken place to date.
In summary, despite existing challenges, litigation and other external interventions are critical tools in addressing the prevalence of antisemitic activity in Canada. Moreover, we have an advantage in at least one respect over our American counterparts. Canadian authorities are empowered to address the most extreme forms of hate speech through criminal sanction in ways unavailable in the United States. But again, the availability of criminal measures to combat hate are only meaningful if the will exists to use them.
I return to the University of Toronto.
The university recently invited submissions from its own community members on a draft Guide to Law and Policy regarding Antisemitism and Anti-Israeli Discrimination. In my view, the guide is unlikely to obviate the need for legal action or government intervention to adequately address the prevalence of antisemitism on campus.
The university acknowledges that the guide does not establish a new policy but is designed to merely allow the university community to better understand the existing legal and policy framework.
Like the earlier December 2021 Report of the University of Toronto Antisemitism Working Group, the guide does not recommend the adoption of the IHRA Working Definition of antisemitism (or other definitions) on the basis that “[e]xternal definitions are written for a range of purposes, but do not reflect the University’s specific policy and legal context, including its fundamental commitment to academic freedom and freedom of expression.”
The guide correctly states at page 4 that “[u]sing “Zionist” or “Zionism” as a proxy for “Jewish” or “Judaism” does not excuse discriminatory or harassing actions described in examples provided. However, it then states: “This proxy usage is distinct from criticisms of the government of Israel and its policies, or of Zionism as an ideology.”
When the university’s 2021 report rejected adoption of the IHRA working definition of antisemitism, it had already been adopted by more than 30 democratic countries, including the United States, United Kingdom, France, Germany, Canada, Italy, Spain, and Australia. The number has since grown to 44 countries. It had already been accepted by UNESCO, the Organization for Security and Cooperation in Europe, the European Agency for Fundamental Rights, the European Union and the Council of Europe. In the United Kingdom alone, over 200 universities, colleges and higher education providers had adopted it, including Oxford, Cambridge, and the London School of Economics. It had also been adopted by various institutions in the United States, and as already stated, has now been adopted by Harvard.ᵛⁱ
As well, several days ago, the U.S. President signed an executive order to combat antisemitism that reaffirmed his 2019 executive order 13899 that directed all agencies enforcing Title VI to consider the IHRA working definition of antisemitism, including the examples identified.
Last year, the Government of Canada published the Canadian Handbook on the IHRA Working Definition of Antisemitism.ᵛ (Canada adopted the definition in 2019 as part of its anti-racism strategy.) The Handbook provides non-prescriptive guidance for how the IHRA definition can be practically used in several fields, including by educational institutions to, amongst other things, educate students, as well as professors, administrators and other educational professionals on how to identify, record, and intervene against antisemitism, and for use in campus codes of conduct.
The IHRA definition recognizes the interplay between antisemitism and anti-Zionism, although it explicitly states that “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic.” Moreover, examples that may serve as illustrations of antisemitism are prefaced by an acknowledgement that they could amount to antisemitism and only by taking into account the overall context.
No definition is perfect. Scholars can debate the precise language used. Alternatives have been proposed. However, the definition has also faced unrelenting condemnation from those who have no interest in any formulation that recognizes the undoubted connection between demonizing Zionism and all Zionists, without distinction, and antisemitism.
In the aftermath of the university’s 2021 Committee report, David Matas and Professor Aurel Braun published a searing indictment of the decision by the university to reject IHRA. That indictment, including the grounds currently being given for rejecting all definitions, remains valid. Moreover, the decision not to attempt to provide any definition of antisemitism, even as a non-binding tool to provide guidance, appears to be inconsistent with University of Toronto President Gertler's own speech in September 2024 articulating the need for a definition:
“An essential part of our effort will be to clarify what constitutes antisemitism so that we may recognize and respond to it more effectively. And here, let me thank Anna and Ron for their compilation of the recent lived experience of Jewish faculty and staff—an exercise that documents a wide range of troubling practices on our campuses. We have recently convened an informal group of academic colleagues to advise us on how best to tackle these matters. Their first task will be to consider how we might develop an operational definition of antisemitism that is consistent with the mission of an academic institution.
As a public institution, we have an obligation to uphold the Ontario Human Rights Code, which prohibits discrimination based on national origin. This means that nobody—not departments, not faculty members, not student groups—is entitled to exclude Israelis or attach conditions to their participation in any aspect of university life. The Human Rights Code also prohibits religious discrimination. Discrimination based on creed or place of origin does not cease to be prohibited simply because the word “Jewish” or “Israeli” is replaced with the word “Zionist.””
But leave aside, for a moment, whether the university should have adopted the IHRA definition. The fact that the university could not bring itself to acknowledge that the IHRA definition has been adopted by Canada and Ontario, that it represents the most widely accepted definition in the world and, most importantly, that by its own terms, it is only a non-binding tool to guide decision-making and policy speaks volumes about the unlikelihood that the university can or will effectively apply its own policies and legal framework, or the final version of its draft guide, to address modern antisemitism on its campus.
The draft guide acknowledges that it is introducing no new legal or policy framework and that “despite the existing legal and policy framework, antisemitic and anti-Israeli acts and speech persist at the university.” But there is an unarticulated reason for that: the university’s own inaction. Its failure to enforce its own codes of conduct when it comes to contemporary antisemitism.
This failure persists. Despite a new policy on protests, the university failed to take action last fall when an anti-Israel protest deliberately flaunted that policy. The university has failed to take action in cases involving vile instances of hate speech (posted or retweeted) because the speech was directed to all Zionists, not to a specific complainant. Human rights codes and jurisprudence are clear that speech can poison an environment and amount to discrimination even when it is not directed to a specific person.
Note as well that the draft guide currently exempts criticisms of Zionist ideology. This broad exemption would undeniably protect – and legitimately so – discussion about competing schools of Zionism. But it will also undoubtedly be cited to prevent the university from taking action against those who demonize all Zionists on campus by describing them as racist, genocidal killers.
There are other flaws in the draft. It appropriately addresses the exclusion of Zionists and Israelis from certain activities, but inadequately addresses their marginalization, short of exclusion. It states that Jewish and/or Israeli community members encounter a range of actions and behaviours experienced as antisemitism that may or may not be a violation of law or policy.
This sentence will too easily be interpreted to permit the university to conclude that there has been no violation of law or policy where actions and behaviours are antisemitic in their effect, and not necessarily in their intent. Such a conclusion is inconsistent with human rights jurisprudence under Ontario’s Human Rights Code.
A guide or policy can fully capture the spirit of the IHRA definition without explicitly adopting it. NYU’s Guidance and Expectations on Student Conduct contains more effective language than contained in the University of Toronto’s draft guide:
“Using code words, like “Zionist,” does not eliminate the possibility that your speech violates the NDAH [Non-Discrimination and Anti-Harassment] Policy. For many Jewish people, Zionism is a part of their Jewish identity. Speech and conduct that would violate the NDAH if targeting Jewish or Israeli people can also violate the NDAH if directed toward Zionists. For example, excluding Zionists from an open event, calling for the death of Zionists, applying a “no Zionist” litmus test for participation in any NYU activity, using or disseminating tropes, stereotypes, and conspiracies about Zionists (e.g., “Zionists control the media”), demanding a person who is or is perceived to be Jewish or Israeli to state a position on Israel or Zionism, minimizing or denying the Holocaust, or invoking Holocaust imagery or symbols to harass or discriminate.
Expressing views regarding a particular country's policies or practices does not violate University policy, but if conduct that otherwise appears to be based on views about a country’s policies or practices is targeted at or infused with discriminatory comments, such as in the examples above, then it would implicate the NDAH.”
The draft guide contains some acceptable language but ultimately falls short of the gold standard that the University of Toronto should aspire to. But my point is that although the guide could be significantly improved, it is meaningless if unenforced.
And it is unlikely to be adequately enforced unless the university is compelled to do so externally. External pressure is often the catalyst to ensure that institutions, including universities and colleges, uphold their duty to protect faculty, students and staff from the discrimination and harassment they are experiencing.
That is one of the lessons learned from the Harvard experience.
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Endnotes
i) Two individual plaintiffs have not accepted the terms of settlement.
ii) ALCCA and a number of its member organizations figured prominently in the report’s findings and recommendations.
iii) There are several other lawsuits that have been commenced that are not described in this editorial.
iv) See, as illustrative: https://temertymedicine.utoronto.ca/reflecting-historic-jewish-student-quotas-toronto-medical-education
v) The Network of Engaged Canadian Academics (NECA), a member of ALCCA, contributed to the development of the Handbook.
vi) I have relied on the excellent article by David Matas and Professor Aurel Braun in the content of this paragraph.
Additional Sources
Here is a link to a submission made by Canadian Antisemitism Education Foundation (CAEF): https://www.caef.ca/post/caef-submission-re-guide-to-law-and-policy-re-antisemitism-and-anti-zionism
About the Author
Mark Sandler, LL.B., LL.D. (honoris causa), ALCCA’s Chair, is widely recognized as one of Canada’s leading criminal lawyers and pro bono advocates. He has been involved in combatting antisemitism for over 40 years. He has lectured extensively on legal remedies to combat hate and has promoted respectful Muslim-Jewish, Sikh-Jewish and Black-Jewish dialogues. He has appeared before Parliamentary committees and in the Supreme Court of Canada on multiple occasions on issues relating to antisemitism and hate activities. He is a former member of the Ontario Human Rights Tribunal, a three-time elected Bencher of the Law Society of Ontario, and recipient of the criminal profession’s highest honour, the G. Arthur Martin Medal, for his contributions to the administration of criminal justice.