President Trump signed an executive order on Wednesday instructing federal agencies to use Title VI — the law that bars federally funded programs from discriminating on the basis of “race, color, or national origin” — to combat anti-Semitism. That move sparked uproar from critics who stressed that Jews are not a race or nationality. But Mr. Trump’s interpretation of Title VI as applying to anti-Semitism is neither new nor troubling. The characterization of anti-Semitism as a form of racial or national-origin discrimination has a secure place in American law.
Title VI was enacted as part of the landmark Civil Rights Act of 1964. Other titles of that statute — including Title II, which bars discrimination in public accommodations; Title III, which requires desegregation of public facilities; and Title IV, which empowers the Justice Department to pursue public school desegregation — cover race, color, religion and national origin. Title VII, which prohibits discrimination in employment, applies to race, color, religion, sex and national origin. Title VI is conspicuous in that it leaves religion out.
Yet the idea that Title VI could apply to anti-Semitism emerged even before the law’s enactment. During an April 1964 floor debate, Senator Joseph Clark of Pennsylvania — one of four Democrats who led the push to pass the legislation through the upper chamber — suggested that Title VI banned anti-Semitism in federally funded programs. “Certainly a broad definition of ‘national origin’ would include individuals of Jewish origin or race,” Mr. Clark said, emphasizing that Jews cannot escape anti-Semitism by following a different faith.
Mr. Clark’s view that Title VI applied to anti-Semitism was not shared by every senator. Al Gore Sr. of Tennessee, father of a future vice president, argued that Title VI excluded “our friends of the Jewish faith.” But Mr. Gore, who knew that a vote for civil rights would be political suicide for a Southern Democrat, was most likely looking for reasons to quibble with the bill. His insistence that Title VI excluded Jews may have been part of his effort to justify his ultimate “no” vote on the legislation.
Fast-forward to 1982, when Shaare Tefila, a synagogue in Silver Spring, Md., was spray-painted with swastikas, Ku Klux Klan symbols and other anti-Semitic messages. The synagogue and several members responded by suing those who had vandalized their house of worship. The plaintiffs cited the Civil Rights Act of 1866, which applies to racial discrimination. They argued that even though Jews are not a racially distinct group, the vandals viewed Jews as a distinct race and were motivated by racial animus.
The case ultimately reached the Supreme Court, which voted unanimously in the synagogue’s favor. “[T]he question before us is not whether Jews are considered to be a separate race by today’s standards,” Justice Byron White wrote, “but whether, at the time [the statute] was adopted, Jews constituted a group of people that Congress intended to protect.” The justices concluded that Jews fell within the statute’s scope. Jewish groups cheered the ruling.
The Shaare Tefila case teaches that placing a group within a racial category for purposes of civil rights protection does not require us to endorse the idea that the group is racially distinct. Race, after all, “is an idea, not a fact,” as the Princeton historian Nell Irvin Painter put it. Humanity cannot be genetically gerrymandered into a small number of distinct subgroups, but racial discrimination is a real phenomenon requiring robust legal responses. Just as African-Americans qualify for protection from racial discrimination even though the very idea of race is based on pseudoscience, anti-Semitism can be racism for legal purposes even though Jewishness cannot be reduced to racial terms.
The idea of Jewishness as a nationality presents similar problems. The Hebrew Bible speaks of Jews as the “nation of Israel” and “a holy nation,” and Jews across the world share cultural, linguistic and historical as well as religious bonds. But the notion of nationhood in the Hebrew Bible and later Jewish thought is not the same as the modern conception of nations as territorially bounded political entities. Jews do not fit neatly into categories of “race,” “religion” and “national origin” that took their present shape millenniums after the Jewish people came into existence.
The nuances of Jewish identity and experience do not, however, shield Jews from attackers who see Jews as a nation apart. Jews can suffer national-origin discrimination regardless of whether Jewishness is a nationality.
Bigots, to be sure, have deployed ideas of Jews as a race and a nation to justify Jewish exclusion and — in the case of Nazi Germany — Jewish extermination. False notions of African racial distinctiveness have been harnessed for horrific ends as well. These facts do not mean, though, that Jews or African-Americans should be read out of federal statutes that protect individuals from discrimination on the basis of race and national origin.
The Education Department under President George W. Bush recognized that anti-Semitism could constitute racial or national-origin discrimination within Title VI’s ambit. The Justice Department under President Barack Obama reaffirmed that view. President Trump’s executive order is consistent with those interpretations, though he is the first to articulate this position as an administration-wide policy.
Yet the executive order is not wholly innocuous. In addition to interpreting Title VI as encompassing anti-Semitism, the order references a series of “contemporary examples” of anti-Semitism that it instructs agencies to consider. Those examples include, among others, “claiming that the existence of a State of Israel is a racist endeavor” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”
The notion that Zionism equals racism is as noxious now as when the Soviet Union propagated it. And while the treatment of Palestinians by the government of Prime Minister Benjamin Netanyahu of Israel ought to be condemned in clear terms, current Israeli policy is not comparable to the Nazi campaign of genocide. Still, the Trump administration’s decision to invoke these examples is disconcerting. The better approach to arguments of those types would be to confront and defeat them in free and open debate rather than to stamp them out through federal civil rights enforcement.
And, of course, the Trump administration’s application of Title VI to anti-Semitism in no way excuses the president’s remarks regarding Jews in other contexts, such as his statement over the weekend that Jews “have to vote” for him because otherwise their taxes will rise. The notion that Jews are driven by love of money is, indeed, anti-Semitic. The idea that Jews should fall within federal statutory protections against racial and national-origin discrimination, however, is not.
Daniel Hemel (@DanielJHemel) is an assistant professor at the University of Chicago Law School and a visiting professor at Harvard Law School.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
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Home » Analysis & Comment » Opinion | Trump’s Executive Order Has Firm Legal Grounding
Opinion | Trump’s Executive Order Has Firm Legal Grounding
President Trump signed an executive order on Wednesday instructing federal agencies to use Title VI — the law that bars federally funded programs from discriminating on the basis of “race, color, or national origin” — to combat anti-Semitism. That move sparked uproar from critics who stressed that Jews are not a race or nationality. But Mr. Trump’s interpretation of Title VI as applying to anti-Semitism is neither new nor troubling. The characterization of anti-Semitism as a form of racial or national-origin discrimination has a secure place in American law.
Title VI was enacted as part of the landmark Civil Rights Act of 1964. Other titles of that statute — including Title II, which bars discrimination in public accommodations; Title III, which requires desegregation of public facilities; and Title IV, which empowers the Justice Department to pursue public school desegregation — cover race, color, religion and national origin. Title VII, which prohibits discrimination in employment, applies to race, color, religion, sex and national origin. Title VI is conspicuous in that it leaves religion out.
Yet the idea that Title VI could apply to anti-Semitism emerged even before the law’s enactment. During an April 1964 floor debate, Senator Joseph Clark of Pennsylvania — one of four Democrats who led the push to pass the legislation through the upper chamber — suggested that Title VI banned anti-Semitism in federally funded programs. “Certainly a broad definition of ‘national origin’ would include individuals of Jewish origin or race,” Mr. Clark said, emphasizing that Jews cannot escape anti-Semitism by following a different faith.
Mr. Clark’s view that Title VI applied to anti-Semitism was not shared by every senator. Al Gore Sr. of Tennessee, father of a future vice president, argued that Title VI excluded “our friends of the Jewish faith.” But Mr. Gore, who knew that a vote for civil rights would be political suicide for a Southern Democrat, was most likely looking for reasons to quibble with the bill. His insistence that Title VI excluded Jews may have been part of his effort to justify his ultimate “no” vote on the legislation.
Fast-forward to 1982, when Shaare Tefila, a synagogue in Silver Spring, Md., was spray-painted with swastikas, Ku Klux Klan symbols and other anti-Semitic messages. The synagogue and several members responded by suing those who had vandalized their house of worship. The plaintiffs cited the Civil Rights Act of 1866, which applies to racial discrimination. They argued that even though Jews are not a racially distinct group, the vandals viewed Jews as a distinct race and were motivated by racial animus.
The case ultimately reached the Supreme Court, which voted unanimously in the synagogue’s favor. “[T]he question before us is not whether Jews are considered to be a separate race by today’s standards,” Justice Byron White wrote, “but whether, at the time [the statute] was adopted, Jews constituted a group of people that Congress intended to protect.” The justices concluded that Jews fell within the statute’s scope. Jewish groups cheered the ruling.
The Shaare Tefila case teaches that placing a group within a racial category for purposes of civil rights protection does not require us to endorse the idea that the group is racially distinct. Race, after all, “is an idea, not a fact,” as the Princeton historian Nell Irvin Painter put it. Humanity cannot be genetically gerrymandered into a small number of distinct subgroups, but racial discrimination is a real phenomenon requiring robust legal responses. Just as African-Americans qualify for protection from racial discrimination even though the very idea of race is based on pseudoscience, anti-Semitism can be racism for legal purposes even though Jewishness cannot be reduced to racial terms.
The idea of Jewishness as a nationality presents similar problems. The Hebrew Bible speaks of Jews as the “nation of Israel” and “a holy nation,” and Jews across the world share cultural, linguistic and historical as well as religious bonds. But the notion of nationhood in the Hebrew Bible and later Jewish thought is not the same as the modern conception of nations as territorially bounded political entities. Jews do not fit neatly into categories of “race,” “religion” and “national origin” that took their present shape millenniums after the Jewish people came into existence.
The nuances of Jewish identity and experience do not, however, shield Jews from attackers who see Jews as a nation apart. Jews can suffer national-origin discrimination regardless of whether Jewishness is a nationality.
Bigots, to be sure, have deployed ideas of Jews as a race and a nation to justify Jewish exclusion and — in the case of Nazi Germany — Jewish extermination. False notions of African racial distinctiveness have been harnessed for horrific ends as well. These facts do not mean, though, that Jews or African-Americans should be read out of federal statutes that protect individuals from discrimination on the basis of race and national origin.
The Education Department under President George W. Bush recognized that anti-Semitism could constitute racial or national-origin discrimination within Title VI’s ambit. The Justice Department under President Barack Obama reaffirmed that view. President Trump’s executive order is consistent with those interpretations, though he is the first to articulate this position as an administration-wide policy.
Yet the executive order is not wholly innocuous. In addition to interpreting Title VI as encompassing anti-Semitism, the order references a series of “contemporary examples” of anti-Semitism that it instructs agencies to consider. Those examples include, among others, “claiming that the existence of a State of Israel is a racist endeavor” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”
The notion that Zionism equals racism is as noxious now as when the Soviet Union propagated it. And while the treatment of Palestinians by the government of Prime Minister Benjamin Netanyahu of Israel ought to be condemned in clear terms, current Israeli policy is not comparable to the Nazi campaign of genocide. Still, the Trump administration’s decision to invoke these examples is disconcerting. The better approach to arguments of those types would be to confront and defeat them in free and open debate rather than to stamp them out through federal civil rights enforcement.
And, of course, the Trump administration’s application of Title VI to anti-Semitism in no way excuses the president’s remarks regarding Jews in other contexts, such as his statement over the weekend that Jews “have to vote” for him because otherwise their taxes will rise. The notion that Jews are driven by love of money is, indeed, anti-Semitic. The idea that Jews should fall within federal statutory protections against racial and national-origin discrimination, however, is not.
Daniel Hemel (@DanielJHemel) is an assistant professor at the University of Chicago Law School and a visiting professor at Harvard Law School.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: [email protected].
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Source: Read Full Article