The New York Times published a bombshell report on Tuesday claiming that President Donald Trump planned to sign an executive order that interpreted Judaism “as a race or nationality” under Title VI of the Civil Rights Act of 1964. Title VI governs federally funded educational programs, so the Times warned that the order might be deployed to squelch anti-Israel speech on campus. “Mr. Trump’s order,” the Times further claimed, “will have the effect of embracing an argument that Jews are a people or a race with a collective national origin in the Middle East, like Italian Americans or Polish Americans.”
That turned out to be untrue. The text of the order, which leaked on Wednesday, does not redefine Judaism as a race or nationality. It does not claim that Jews are a nation or a different race. The order’s interpretation of Title VI—insofar as the law applies to Jews—is entirely in line with the Obama administration’s approach. It only deviates from past practice by suggesting that harsh criticism of Israel—specifically, the notion that it is “a racist endeavor”—may be used as evidence to prove anti-Semitic intent. There is good reason, however, to doubt that the order can actually be used to suppress non-bigoted disapproval of Israel on college campuses.
Title VI bars discrimination on the basis of “race, color or national origin” in programs that receive federal assistance—most notably here, educational institutions. It does not prohibit discrimination on the basis of religion, an omission that raises difficult questions about religions that may have an ethnic component. For example, people of all races, ethnicities, and nationalities can be Muslim. But Islamophobia often takes the form of intolerance against individuals of Arab or Middle Eastern origin. If a college permits rampant Islamophobic harassment on campus, has it run afoul of Title VI?
In a 2004 policy statement, Kenneth L. Marcus—then–deputy assistant secretary for enforcement at the Department of Education’s Office of Civil Rights—answered that question. “Groups that face discrimination on the basis of shared ethnic characteristics,” Marcus wrote, “may not be denied the protection” under Title VI “on the ground that they also share a common faith.” Put differently, people who face discrimination because of their perceived ethnicity do not lose protection because of their religion. The Office of Civil Rights, Marcus continued, “will exercise its jurisdiction to enforce the Title VI prohibition against national origin discrimination, regardless of whether the groups targeted for discrimination also exhibit religious characteristics. Thus, for example, OCR aggressively investigates alleged race or ethnic harassment against Arab Muslim, Sikh and Jewish students.”
The Obama administration reaffirmed this position in a 2010 letter written by Assistant Attorney General Thomas E. Perez, who is now the chair of the Democratic National Committee. “We agree,” Perez wrote, with Marcus’ analysis. “Although Title VI does not prohibit discrimination on the basis of religion, discrimination against Jews, Muslims, Sikhs, and members of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.” Perez added that Title VI “prohibits discrimination against an individual where it is based on actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity.”
On Wednesday, I asked Perez’s former principal deputy, Sam Bagenstos—now a professor at University of Michigan Law School—whether he felt this reasoning equated any religious group of a nationality or race. “The key point we were making,” he told me, “is that sometimes discrimination against Jews, Muslims, and others is based on a perception of shared race, ethnicity, or national origin, and in those cases it’s appropriate to think of that discrimination as race or national origin discrimination as well as religious discrimination. It doesn’t mean that the government is saying that the group is a racial or national group. The government is saying that the discrimination is based on the discriminator’s perception of race or national origin. That’s a very different matter from saying that anti-Israel or pro-Palestinian speech constitutes discrimination.”
Trump’s EO does not deviate from this understanding of the overlap between discrimination on the basis of race or nationality and discrimination against religion. It only changes the law insofar as it expands the definition of anti-Semitism that may run afoul of Title VI. In assessing potential violations, the order directs executive agencies to look to the International Holocaust Remembrance Alliance’s definition—chiefly “hatred toward Jews” directed at individuals, their property, their “community institutions and religious facilities.”
Agencies must also refer to the IHRA’s “Contemporary Examples of Anti-Semitism.” That list contains a number of obvious, unobjectionable examples. But it also includes two more controversial examples: “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor,” and “Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.” To the extent that anyone is alarmed by Wednesday’s order, these examples should be the focus of their concern. A tendentious reading of this rule could theoretically get students in trouble for severe condemnation of Israeli policy, even when it does not cross the line into a condemnation of Jews.
But the order only directs agencies to consider the IHRA’s list “to the extent that any examples might be useful as evidence of discriminatory intent.” In other words, applying double standards to Israel alone would not trigger a Title VI investigation. Instead, the IHRA’s list would only come into play after an individual is accused of overt anti-Semitism with an ethnic component, and then only as evidence of bigoted intent. Moreover, the order states that agencies “shall not diminish or infringe upon any right protected under Federal law or under the First Amendment” in enforcing Title VI. Because political criticism of Israel is plainly protected speech, the impact of the order’s revised definition of anti-Semitism will likely be limited.
In fact, it’s unclear whether Wednesday’s order will have any impact, given that it mostly just reaffirms the current law. The New York Times’ reporting provoked anger among many Jews, who feared that an order to “effectively interpret Judaism as a race or nationality” would stoke anti-Semitism. But the order does no such thing. It restates the federal government’s long-standing interpretation of Title VI to encompass some anti-Jewish bias. And it raises the faint possibility that, in some case down the road, a student’s sharp criticism of Israel may be used as evidence of anti-Semitic intent after he has been accused of targeting Jews because of their perceived race or nationality. Is this order red meat for Republicans who believe colleges are increasingly hostile to Jews? Probably. Will it quash the pro-Palestine movement on campuses or impose an unwanted classification on American Jews? Absolutely not.
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