Where does criticism of Israel end and anti-Semitism begin? (Photo by Wasawat Lukharang/NurPhoto) … [+]
This morning, The New York Times reported that President Trump “plans to sign an executive order on Wednesday targeting what he sees as anti-Semitism on college campuses by threatening to withhold federal money from educational institutions that fail to combat discrimination”. This has set off an avalanche of criticism predicting that the order will marginalize American Jews by defining them as un-American and will result in censorship of Israel’s critics. The first criticism is completely baseless. The second criticism is trickier because it leaves out a lot of context but it contains a kernel of truth.
Let’s start with the idea that the order will somehow label American Jews as foreign nationals. This is based on how Trump is interpreting a civil rights law called Title VI of the Civil Rights Act of 1964. This law prohibits discrimination based on race, color, and national origin in programs and activities receiving federal financial assistance, including educational institutions such as universities. Note that it does not include discrimination based on religion. As a result, there is controversy over whether it applies to discrimination against Jews. There have been several attempts in Congress to pass a new law clarifying that Title VI does apply to Jews. These attempts have had broad bi-partisan support (one version passed the Senate unanimously) but have never made it all the through the byzantine process of federal law-making.
Trump’s order applies Title VI to anti-Semitism via executive authority. Critics say that this implicitly makes Judaism a “nationality” and essentially renders Jews un-American. For example, Emily Mayer, the director of IfNotNow wrote: “The order’s move to define Judaism as a ‘nationality’ promotes the classically bigoted idea that American Jews are not American.”
This makes no sense. First of all, Title VI refers to “national origin”, not “nationality”. And Jews are certainly an ethnicity as the scientific community understands that term. The argument that Trump’s order will somehow cast Jews as un-American is unsupported alarmism. In fact, in 1987 the Supreme Court held that Jews should be considered a race under another federal civil rights law called Sec. 1982. The Justices reversed a lower court ruling that had held that “because Jews today are not thought to be members of a separate race, they cannot make out a claim of racial discrimination within the meaning of § 1982.” That decision had no negative impact on Jews and there is no reason that protecting Jews under Title VI will either.
The other concern about Trump’s order is that it might punish mere criticism of Israel. This stems from the order’s language that agencies “charged with enforcing Title VI shall consider . . . the non-legally binding working definition of anti-Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA).
There is a lot to like about the IHRA definition of anti-Semitism. It defines anti-Semitism as a perception of Jews “which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
The IHRA standards also give examples of contemporary anti-Semitism. Some examples are spot on. They include “Holding Jews collectively responsible for actions of the state of Israel” and “Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.”
However, the IHRA standards also include more controversial examples such as “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.” I completely agree that critics of Israel often apply double standards. But people apply double standards for many reasons other than anti-Semitism. One of my great frustrations is how little many of Israel’s critics seem to know about how Israeli’s human rights record compares to that of other nations. But that doesn’t make them anti-Semites. And we are all guilty of occasionally applying double standards. That shouldn’t be considered a federal civil rights violation.
Mark Joseph Stern, writing for Slate argues that this language probably won’t cause any free speech problems because “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.” But that is just a truism—of course, federal agencies aren’t allowed to infringe first amendment rights. There is always a constitutional gray area when a statement is both political and hateful. Including constitutionally protected (if deeply misguided) statements like “Zionism is racism” as examples of discrimination undermines free speech.
In sum, there is more good than bad in Trump’s order. We live in very partisan times and many people have come to assume that anything Trump does is bad. (Anyone who has read my work knows that I have a very low opinion of the President as well.) But as noted earlier, the idea that Jews should be protected from discrimination has traditionally had strong bi-partisan support and the Supreme Court has extended civil rights protections to Jews in other contexts without controversy or problems. The fact that Trump has done this does not, in and of itself, make it bad.
Some of the IHRA examples of contemporary anti-Semitism are very helpful, while others pose a genuine danger of infringing upon constitutionally protected speech. It would have been better if someone more nuanced and artful than President Trump had signed off on this order. But even this flawed order is far better than leaving Jews unprotected under Title VI.
