On the Spending Power

Withholding Educational Funding for 1st Amendment Protected Speech

A definition its own author called non-legally binding, made a condition of federal money.

Against H.R. 8476, 119th Cong. (2026), No Antisemitism in Education Act of 2026

The No Antisemitism in Education Act of 2026 was introduced on 23 April by Randy Fine of Florida, with Claudia Tenney, and reported out of the Committee on Education and Workforce with an amendment on 20 August. It runs to three sections. The operative one is short enough to read in a minute, and the argument against it lives entirely inside that minute.

You have to start with the document the bill points at, because the bill does not define antisemitism itself. It borrows a definition by reference, from an executive order signed in December 2019.

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments and agencies (agencies) charged with enforcing Title VI shall consider the following:

(i) the non-legally binding working definition of anti-Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities”; and

(ii) the “Contemporary Examples of Anti-Semitism” identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent.

Exec. Order No. 13899, § 2(a), 84 Fed. Reg. 68,779, 68,779 (Dec. 16, 2019)

Two phrases in that order are doing more work than anything in the bill. The definition is non-legally binding. The examples apply to the extent that any examples might be useful as evidence of discriminatory intent. The order’s own author was careful to say that this was guidance for investigators weighing evidence, not a rule that decides cases. Section 4 of the same order says nothing in it alters the evidentiary requirements by which an agency decides that conduct amounts to actionable discrimination.

Now read what the bill does with it.

(a) Requirement.–

(1) In general.–As a condition of receiving Federal financial assistance, a local educational agency or institution of higher education shall treat discrimination that is motivated by antisemitism, including discrimination by students or employees and discrimination resulting from the institutional policies of such agency or institution, as vigorously as such agency or institution treats all other forms of discrimination prohibited by title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.).

(2) Use of the definition of antisemitism.–In identifying evidence, reviewing, investigating, or determining whether there has been a violation of any relevant Federal law, a Federal department or agency, or local educational agency or institution of higher education that receives Federal financial assistance, shall consider the definition of antisemitism specified in subsection (c) for purposes of determining whether an alleged act or omission was motivated by discriminatory antisemitic intent.

(3) Enforcement.–The provisions of this section shall be enforceable by any mechanism available to enforce section 601 of the Civil Rights Act of 1964 (42 U.S.C. 2000d).

(b) Rules of Construction.–Nothing in this section shall be construed as–

(1) diminishing or infringing upon any right protected under the First Amendment to the Constitution; or

(2) preempting State antidiscrimination laws.

H.R. 8476, 119th Cong. § 3 (2026) (as reported)

The verb has not changed. Both documents say shall consider. What has changed is who is bound and what happens to them. An agency that considers non-binding guidance badly risks an inspector general’s footnote. A university that considers it badly now risks its federal money, through any mechanism available to enforce section 601. The bill takes an evidentiary suggestion addressed to federal investigators and converts it into a condition of the money that keeps the lights on in every laboratory and lecture hall in the country.

That is not a complaint about the definition. It is a complaint about the lever. Funding conditions do not work by producing correct adjudications. They work by making institutions avoid the neighborhood of a possible finding, because the cost of being wrong is catastrophic and the cost of being cautious is a cancelled event nobody outside the room will hear about. The conduct the statute reaches is decided by a university’s general counsel, months before any agency opens a file, and the decision is never reviewed by anyone.

The strongest answer to all this is in the bill itself. Let’s read it now, together.

(1) Antisemitism is a uniquely rampant problem in the United States, including in educational institutions. According to the most recent Federal Bureau of Investigation data, more than two-thirds of all religiously motivated hate crimes targeted Jews. According to 2025 data, nearly half of young American Jews say they were the personal target of antisemitism in the last year. Forty-two percent of American Jewish college students report experiencing antisemitism during their time on campus.

(3) The October 31, 2024, report found that many educational institutions have exhibited “double standards” with respect to addressing discrimination motivated by antisemitism.

H.R. 8476, 119th Cong. § 2 (2026) (as reported)

Let’s take those findings as true, for the sake of the argument. Add subsection (b)(1), which says in terms that nothing in the section diminishes any right protected under the First Amendment. Add the IHRA text’s own caveat that criticism of Israel comparable to that levelled against any other country is not antisemitic. A reasonable person could read all of that and conclude that the bill closes a real gap and guards the obvious danger on its way past.

The answer is that a savings clause binds a court, and the harm here never reaches one. Subsection (b)(1) tells a judge how to read the statute in a case that gets filed. It tells a provost nothing about whether cancelling next week’s panel is cheaper than explaining it to the Office for Civil Rights. Every incentive the bill creates operates in the gap between the conduct and the case, and the savings clause cannot reach into that gap, because there is no adjudicator standing in it. The same is true of the IHRA caveat: it asks whether criticism is similar to that levelled at other countries, which is a comparative judgment requiring time, context and a tolerance for being second-guessed. An institution with a federal grant at stake has no reason on earth to attempt it.

This is the second time this Congress has used the same lever. On 3 September the House passed the Protect Economic and Academic Freedom Act of 2026 by 237 to 169. That statute is narrower than it has been reported to be: it bars an institution from engaging in a nonexpressive commercial boycott of a major strategic partner, a term it defines by cross-reference rather than by naming Israel, and it requires an annual certification that students may study there on the same terms as anywhere else. It does not reach student protest, and saying otherwise concedes ground that does not need conceding. What it does do is make federal student aid contingent on institutional conduct toward one foreign state. H.R. 8476 makes federal assistance contingent on how institutions weigh evidence about speech concerning that same state. The instrument is identical, and it is the instrument that should worry people. It attempts to disallow higher education facilities from ceasing trade with Israel. It labels it as a way to protest, but the lever herein allow weak support behind the “protesting” done. If a university has been purchasing Israeli pencils for students but finds a better, cheaper one and switches, is that protest? No. Can it be argued as so under this? Absolutely.

American Israel Public Affairs Committee (AIPAC) lobbied on both. Its lobbying report for the second quarter of 2026, filed under the Lobbying Disclosure Act on 14 July, lists H.R. 4795 and H.R. 8476 together under the education issue code. That is a matter of public record. It is also the limit of what the record shows: a disclosure that an organisation lobbied on a bill is not evidence that the organisation wrote it, paid for it, or bought its sponsor, and this essay does not claim otherwise. The bill is objectionable on its text. A bill that needed a conspiracy to explain it would be a weaker target, not a stronger one.

Nothing here turns on whether antisemitism on American campuses is real. It is, and the findings in section 2 are not seriously contestable. The question is whether the United States should make a school’s funding turn on its handling of a definition that the executive order incorporating it twice declined to make binding. Congress can write a rule about conduct. What it is doing instead is writing a rule about evidence, attaching money to it, and trusting a savings clause to hold the line at a place where no one will ever be standing.

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