President Trump’s “Executive Order on Combating Anti-Semitism,” issued on December 11, has created a rift in the Jewish community between those who welcome it as an expression of the administration’s commitment to the Jewish people and Israel and those who see it as a sinister effort to set Jews apart as something other than ordinary, loyal Americans. As a scholar of civil rights, a Jew, and a proud, liberal Zionist, I want to reassure my friends on the left that the Order, in itself, is cause for celebration rather than concern and in fact is exactly the same as President Obama’s policy, just in a different form. Ever the public relations master, by announcing longstanding policy in a new Executive Order, President Trump has taken credit for yet another policy put in place by his predecessor. The critics are correct, however, that in the wrong hands the Order has the potential to threaten values that many Jews hold dear.
The basic legal issue addressed by the Order is relatively simple. Title VI of the Civil Rights Act of 1964 gives the government the power to cut off federal funding to programs and activities that receive federal funding if they discriminate on basis of race, color, and national origin but not if they discriminate based on religion. The Order, in purposely vague language, instructs federal agencies to treat anti-Semitism the same “as all other forms of discrimination prohibited by Title VI,” which is the same position taken by the Department of Education under Obama and even his predecessor, George W. Bush. Virtually all institutions of higher education in the United States receive federal funds, and the Order empowers funding agencies to consider cutting off those funds if the institution is found to be engaging in anti-Semitic behavior which, in some circumstances, can include the failure of the institution to address campus hostility directed at Jews.
The rise of anti-Semitic behavior on some campuses gives us clues about what the President is concerned about. Overtly anti-Semitic policies are unlikely to exist, but under the Order the federal government might investigate a university’s failure to prevent verbal and physical assaults on Jewish students, which sometimes result from groups and individuals who hold all Jews responsible for Israeli policies, the failure to provide equal time for pro-Israel voices on campus or even the offering of courses that include Holocaust denial or equate Zionism with racism.
This order does not raise the specter, as some have suggested, of labeling American Jews as foreign or other. Rather, it merely extends to Jews protections that are already available to numerous national groups such as Italian-Americans, German-Americans and Mexican-Americans and racial groups such as African-Americans and Asian-Americans. In fact, in 1987, the Supreme Court determined that Jews were protected under the Civil Rights Act of 1866 as a distinct racial group because in the 1860s the definition of what constituted a race was much broader than it is today, encompassing groups such as “Finns,” “Basques,” “Russians,” “Greeks” and “Jews.” Jews have thus been considered a race under federal law for more than 30 years and no dire consequences have resulted. But that decision is not a precedent for considering Jews as a racial or national group under the 1964 Act because by the 1960, the concept of racism was much narrower. The legal basis for the Order, which leaves serious doubts about the order’s legality, is the notion that Congress would have wanted to protect people that are perceived to be members of a distinct racial, national or ethnic group even if technically that discrimination doesn’t fall within the 1964 Act’s language.
The discomfort many Jews feel about this order results from a number of sources. First, and foremost, is the view of many that even while President Trump has taken steps to support Israel, he has cultivated the support of white supremacists and other extremist groups that have unleashed a significant increase in overt anti-Semitism across the country. In my view, this perception has ample support in the record, and I count myself among those who feel that President Trump has made this country less safe and welcoming to the Jewish community. It is not surprising that the percentage of Jews voting for Democratic candidates increased significantly between 2016 and 2018. Many of us are deeply suspicious of the president’s intentions toward us and do not view support of the Netanyahu government as in the long-term interests of the State of Israel. The recent inclusion in the White House Hanukah celebration (and at the opening of the new U.S. Embassy in Jerusalem) of a Christian minister who preaches that all Jews are doomed to hell unless they convert and the president’s persistent invocations of stereotypical views of Jews as wealthy, greedy and more loyal to Israel than the United States reinforces the sense that the president is no true friend.
Second, ambiguity over whether Judaism is a religion or something more, such as a nationality, is baked into Jewish tradition. The Jews who sued in 1987 to protect their property from anti-Semitic violence in the 1980s disclaimed the argument that Jews are an actual race, arguing instead that the defendants wrongly perceived Jews as a separate race, which is the position that the Obama administration took in its interpretation of Title VI. Yet we refer to the Jewish nation and chant “Am Yisrael Chai” on many occasions. Many support Zionism, a Jewish nationalist movement, which makes little sense unless Jews are a distinct national or ethnic group.
Third, many fear that the federal government will use this order as an excuse to stifle academic freedom and legitimate campus debate over the Israeli-Palestinian conflict and Israel’s treatment of Arabs in the occupied territories. While this did not happen under the two previous administrations with the same policy, in an op-ed piece published in the New York Times, presidential advisor and son-in-law Jared Kushner seemed to equate opposition to Israel with anti-Semitism. While clearly some opposition to Israel is rooted in anti-Semitism, much of it is not, and many of those who are highly critical of current Israeli policy are liberal Jewish Zionists like me. While this fear merits vigilance, at least until now, the Department of Education rarely investigates discrimination because universities usually resolve the problem themselves, often in response to pressure from the community and advocacy groups like the Anti-Defamation League. And they do so without trampling on the First Amendment values that are so important to the place of Jews in American society.
My bottom line is that we should welcome the protection that this Order might provide, recognizing that it may exceed the power granted by the Civil Rights Act of 1964, and we should remain alert to the administration’s tendency to embolden white supremacist activity that poses a direct threat to our security.
Professor of Law Jack M. Beermann is the Harry Elwood Warren Scholar at the Boston University School of Law and a resident of Swampscott.