The Trump Executive Order on Anti-Semitism Has Been Badly Misrepresented

Contrary to considerable alarmism -- much of it stoked by misleading coverage in the New York Times and Washington Post -- President Trump's Executive Order on anti-Semitism does not classify Jews as a separate nationality, nor does it directly threaten free speech on campus. In fact, it pretty much extends the previous policies of the Obama and Bush II administrations by taking reasonable steps to ensure that Jewish students a provided protection from discrimination under Title VI -- which covers race, color, and national origin, but not to religion. My friend David Schraub (a reader and occasional commenter on this blog) has done an exceptionally good job of explaining the EO in an article in The Atlantic. Here is the gist, but you really need to read the entire essay:

So if Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity.

But the federal government—starting in the George W. Bush administration, and more formally during the Obama administration—began to settle on a more tailored answer. Title VI does not cover religion-based discrimination. But when discrimination against Jews—or Muslims or Sikhs, for that matter—is based on “the group’s actual or perceived ancestry or ethnic characteristics,” or “actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity,” the government found, then that discrimination falls under Title VI’s purview. Anti-Semitic discrimination is unlawful under Title VI to the extent that it targets Jews as a racial or national group.

This seemed appropriate. After all, anti-Semites very often envision and target Jews as a racial or national group. Secular Jews are by no means immunized from anti-Semitic attacks. And Jews have vigorously resisted the Protestant-oriented insistence that Jewishness is reducible to a religious identity. An antidiscrimination regime that is blind to this aspect of Jewish identity and to this manifestation of anti-Semitic hatred would be wholly unequipped to protect Jews.

But the emphatic denials by some Jewish commentators that Jews should ever be conceived as a national grouping risk unraveling the entire basis for affording Jews Title VI protection in the first place—not just under the Trump administration’s view, but in the view of every recent administration. Only some notion of legally cognizable Jewish nationhood (or race) brings Jews under Title VI’s ambit. And if any use of national-origin-based protections implies that the covered group is not truly “American,” then huge swaths of antidiscrimination law should be repealed—at great danger to the increasing number of Americans who still face discrimination based on their national ancestry.

But another concern is at play in the response to the executive order: the worry that the Trump administration will take real fears of anti-Semitism and weaponize them by leveling bad-faith allegations to silence or suppress speech—particularly speech centered on Israel.

[The EO] also breaks new ground by officially instructing all government agencies tasked with enforcing antidiscrimination law to “consider” the nonbinding International Holocaust Remembrance Alliance (IHRA) working definition of anti-Semitism, including its illustrative examples.

This issue largely concerns the more legitimately controversial aspect of the executive order: its misappropriation of the IHRA definition of anti-Semitism for use in assigning civil liability. The definition was not designed to fulfill this role, and indeed its own drafters have been vocal in opposing its use for this purpose.

There is much more to David's essay, including a powerful explanation of the overbreadth of the IHRA definition of anti-Semitism as an enforcement tool, coupled with a explanation the ways in which it will not endanger First Amendment rights. David concludes:

At root, the problem is that the Trump administration cannot be trusted to judge what is anti-Semitic and what is not. But the fight against anti-Semitism requires judgment—there is no way to avoid it. Jews can be mistrustful of what the Trump administration has in store for us, or suspect that Trump does not have our best interests at heart when he purports to fight anti-Semitism for us. But we must nonetheless preserve a real and serious corpus of law protecting Jews from anti-Semitic discrimination, even if the Trump administration tries to use these tools for its own illiberal agenda.

As I said, it is a must read.

Comments

[anymouse]

"Contrary to considerable alarmism -- much of it stoked by misleading coverage in the New York Times and Washington Post..."

Boy, you could preface just about every sentence written about politics for the past three years with that one. Which explains why the MSM isn't held in high esteem by many.

[Howard Wasserman]

Steve:

I agree that it's a good piece. But as I wrote here (https://prawfsblawg.blogs.com/prawfsblawg/2019/12/jewish-as-race-or-national-origin.html), I am not sure why he is concerned about the national origin issue. Many courts treat Jews as a racial group for civil rights purposes, including Title VI.

[PaulB]

Classic example of (Robert) Conquest's Law. Everyone is more conservative on subjects on which they are knowledgeable.