Last night I did a post decrying a forthcoming Executive Order (EO) that would, based on The New York Times‘ reporting about the forthcoming EO, redefine Judaism as a race and nationality. Specifically:
Religion was not included among the protected categories, so Mr. Trump’s order 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.
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 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.”
There is much more at the link, including an analysis of why this is likely to have little actual effect in combatting anti-Semitism on college and university campuses. If you have the five minutes, I highly recommend clicking across and reading Stern’s entire article.
Since I believe in marking my beliefs, assessments, analyses, and statements to market, especially if I’m wrong, I just want to state clearly that last night’s post was inaccurate. It was inaccurate because I wrongly described what the forthcoming Executive Order was going to contain and what it would do. And this inaccuracy was based on incorrect reporting from The New York Times. While the larger context within the post about why Judaism is a religion, not a race or nationality is correct, the premise for the post is not. I am not going to pull the post, but I am adding an update with a link at the bottom to this post for anyone who comes upon it from this point on.
I sincerely apologize for riling everyone up and making everyone less informed. That is not the objective I’m trying to achieve here.