By Mark Goldfeder

Last month, in the aftermath of the most recent conflict in Israel, the general assembly of United Educators of San Francisco (UESF) became the first K-12 teacher's union in the United States to approve a resolution endorsing the antisemitic Boycott Divestment and Sanctions (BDS) movement. A similar resolution is now making its way through the United Teachers Los Angeles union.

Aside from the fact that both resolutions are offensively antisemitic, rife with inaccuracies, and morally reprehensible in their defense of terrorism, they are also problematic from a legal perspective.

To be clear, the freedom of speech – even offensive speech – must be protected. But as the United States Department of Education's Office for Civil Rights has made clear, there are times when even speech can cross over into harassment and invidious discrimination. Title VI of the Civil Rights Act of 1964 prohibits discrimination in federally assisted programs and activities, on the basis of race, color, or national origin. A violation of Title VI may be found if discrimination is encouraged, tolerated, not adequately addressed, or ignored by administrators, and complaints alleging a violation of Title VI may be filed with the US Department of Education's Office for Civil Rights or in the federal district courts.

Under Executive Order 13899 (Combating Anti-Semitism), when evaluating potential Title VI claims, the government uses the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. Per the IHRA definition, it is antisemitic to apply a double standard to the Jewish state. As it relates to these resolutions, perhaps the most telling aspect of the underlying hatred behind them is what they glaringly don't say. In the entire retelling of events, in both resolutions, there is not a single mention of Hamas, the terrorist organization that instigated the conflict by attacking Israeli civilian populations.

It is true, and tragic, that many Palestinians have been killed or wounded, and it is horrifying that some, as the resolutions point out, were mere children. But Israel does not target Palestinian civilians or children; in fact, Israel warns people in advance to evacuate the areas it plans to strike as it seeks to protect its citizens, both Jewish and Arab, from Hamas' indiscriminate attacks.

Meanwhile, it is Hamas that actually targets innocent civilians while at the same time using its own population as human shields and its civilian institutions, including schools, mosques, and hospitals, as places to hide weapons and stage military operations. The resolutions demand that Israel ceases striking Gaza, but not that Hamas cease striking Israel; that is definitionally antisemitic.

But if the narrative antisemitism was not clear enough, the resolutions also openly support the demonstrably dangerous and discriminatory BDS movement. There are thousands of readily available, easily accessible, examples of BDS leaders and activists crossing the line into unmitigated antisemitism without even the pretext of anti-Zionism, and there is also clear evidence that the antisemitic discrimination in the BDS movement disparately impacts Jewish people, leading to harassment and physical attacks. That is part of the reason why California, which is home to both of these unions, is among the majority of states that have passed anti-BDS bills- protective anti-discrimination laws which these resolutions call on people to ignore.

It is critical that these divisive resolutions do not find their way into any classroom, and that the school districts in San Francisco and Los Angeles not tolerate any resulting or connected discrimination or harassment on the part of their teachers who are members of these unions. It should be obvious that a school district that chooses to ignore an open call by its teachers to discriminate on the basis of national origin would be exposing itself to potential liability if students were to feel negatively affected, and according to reports, the resolutions are already contributing to Jewish students feeling unsafe and unwelcome at school.

Aside from the Title VI concerns, any negative repercussions against Jewish and/or Israeli students stemming from the resolutions could also well violate the anti-discrimination provisions of the state's Education Code (in particular section 220, which, among other things, forbids discrimination on the basis of nationality, race, ethnicity, and religion), and subject these districts to even further liability.

As the worldwide surge in antisemitic incidents continues, it is morally incumbent upon school officials to quickly and publicly distance themselves from the kind of hateful and inflammatory resolutions that these teachers' unions are promoting, and to make sure that their Jewish students feel supported. It should never have to come to this, but if there is any moral hesitation on the part of school officials to speaking out against antisemitic hate, then the administration should also be on notice that under Title VI they have an affirmative legal obligation to protect their Jewish students- even from their own teachers and their unions if need be.

Rabbi Dr. Mark Goldfeder, Esq. has served as the founding Editor of the Cambridge University Press Series on Law and Judaism, a Trustee of the Center for Israel Education, and as an adviser to the Permanent Mission of Israel to the United Nations. Read full bio here.