Trump’s executive order raises important questions about Jewish identity and free speech

On Dec. 11, President Donald Trump signed an Executive Order Combating Anti-Semitism. The order’s stated intent is to ensure vigorous enforcement of existing civil rights law against “prohibited forms of discrimination rooted in anti-Semitism.” While the goal of combatting anti-Semitism is, of course, laudable, the order raises important concerns about defining Jews as a racial or national group and the suppression of free speech.

The law at issue is Title VI of the Civil Rights Act of 1964. That act prohibits discrimination on the basis of race, color and national origin in programs receiving federal financial assistance. Institutions that violate Title VI may lose their federal funding.

In 2004, the Bush administration’s Department of Education decreed that the Office of Civil Rights could invoke Title VI to investigate “alleged race or ethnic harassment against Arab Muslim, Sikh, and Jewish students.”

In 2010, the Obama administration’s Department of Justice agreed. “[D]iscrimination 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 practices.”

Under the Obama administration approach, it isn’t necessary to determine whether Jews, Muslims, Sikhs or others are actually members of a distinct ethnic, racial, or national group — as long as those who engage in discrimination act on the basis of racial or national origin bias, the discrimination is covered by Title VI.

President Trump’s executive order differs from the Obama administration’s interpretation in two important respects. First, and most obvious, the order focuses only on discrimination against Jews. It does not mention Muslims, Sikhs or other religious groups. Second, the order omits the “actual or perceived” language from the 2010 Department of Justice letter, declaring that “Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.”

Read literally, the order seems to say that Title VI covers discrimination against Jews because they are members of a racial group or separate nationality.

To some Americans, including Jewish-Americans, that formulation is alarming. The suggestion that Jews have a national identity different from the country in which they live has long been a basis for denying them the rights of citizenship. In the Soviet Union, Jews were required to list “Jewish” as their nationality on the internal passports Soviet citizens had to carry, thus marking themselves out for discrimination in education, employment, and other spheres. Nazi Germany, of course, carried the trope of Jews as alien others to its ultimate extreme, taking away their citizenship, their property, and their lives.

In some European countries, to be sure, Jews’ status as a national minority carries with it rights they might not otherwise have. And, ironically, in Israel, identity papers indicate “Jewish” as a nationality rather than a religion.

In an op-ed in the New York Times, Jared Kushner, a senior adviser to the president and his son-in-law, maintains that “The executive order does not define Jews as a nationality. It merely says that to the extent Jews are discriminated against for ethnic, racial or national characteristics, they are entitled to protection by the anti-discrimination law.”

If Mr. Kushner is right about the drafters’ intent, one wonders why President Trump did not simply reaffirm the Obama administration’s more nuanced formulation, and why the order does not refer to members of other religious groups.

Combating discrimination, we suggest, may be only part, and not the most important part, of the order’s goals. To “ensure robust enforcement” of Title VI, the order directs government agencies to consider the definition of anti-Semitism adopted by the International Holocaust Remembrance Alliance (IHRA) in 2016 and the “Contemporary Examples of Anti-Semitism” that accompany it.

While some of the examples are helpful, others are problematic as guides to enforcement of Title VI. For example, denying the fact or scope of the Holocaust, while illegal in some European countries, is protected political expression in the United States. More troubling, the IHRA’s examples of anti-Semitism include “targeting the state of Israel, conceived as a Jewish collectivity,” “applying double standards” to Israel, “by requiring of it a behavior not expected or demanded of any other democratic nation,” 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 comparing “contemporary Israeli policy to that of the Nazis.”

Each of these examples encompasses political expression likely to be protected by the First Amendment. Yet Mr. Kushner cites almost all of these examples as providing “critical guidance to agencies enforcing Title VI provisions.” Mr. Kushner also declares that the IHRA definition “makes clear what our administration has stated publicly and on the record: Anti-Zionism is anti-Semitism.”

Anti-Zionism and anti-Semitism are in fact not the same things. While opposition to the state of Israel or its policies may well be motivated by anti-Semitism, it may also be stimulated by opposition to the policies of Israel’s government rather than Israel’s identity as a Jewish state.

And although President Trump’s order notes that the definition and examples should not be used to “infringe upon any right protected under Federal law or under the First Amendment,” the possibility of Title VI litigation could well chill protected speech.

It seems likely that the Trump administration issued the executive order in part to attract political support from American Jews worried about the increase of anti-Semitism in this country, and especially on college campuses, where activists sometimes push for an end to Israel’s occupation of contested land, the establishment of a Palestinian state, and the boycott, divestment, and sanctions movement (BDS).

Undoubtedly, those attacking Israel (and Jewish students who support Israel) are sometimes, maybe often, motivated by anti-Semitism. But it is simply not the case, as Mr. Kushner claims, that “discrimination, harassment and intimidation of Jewish students has become commonplace” on college campuses, and it is far too facile to conclude, as he apparently does, that criticism of Israel should so readily trigger Title VI enforcement.

Ironically, the Trump administration has sharply criticized efforts to restrict the speech of conservatives on campuses. In March, President Trump signed an executive order tying certain federal grants and funding for institutions of higher education to the protection of “free inquiry.”

Given President Trump’s reluctance to condemn white nationalists at Charlottesville and elsewhere, and his own willingness to traffic in anti-Semitic stereotypes, it is easy to understand skepticism regarding the goals of the new executive order. Whatever the motivation, the order adds little to the protections already available for Jews under Title VI — and it may well do more harm than good.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Isaac Kramnick) of Cornell: A History, 1940-2015.

David Wippman is the President of Hamilton College.