The New York Times Misreported Trump's Executive Order on Antisemitism

No, the order does not "interpret Judaism as a nationality"

|The Volokh Conspiracy |

Lots of my friends on social media were up in arms over a New York Times report last night that stated that the Trump administration was poised to sign an executive order that would "interpret Judaism as a nationality." [The latest version of the Times's article more accurately says "race or nationality," but that's still misleading without proper context.] People jumped to a lot of false or exaggerated conclusions based on this misleading account of the order. Here's what the order actually says:

Title VI of the Civil Rights Act of 1964 (Title VI),42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices. 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.

It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI."

The only question at issue is whether discrimination against Jews as an ethnic group, as opposed against Jews as a religious group, is covered by Title VI. Jews are already covered as a "race" under other civil rights legislation (see the Shaare Tefilah case). It was the policy of the Bush II administration Department of Education, and has been the policy of the Trump Administration's Department of Education, to hold that Jews are similarly protected under Title VI from discrimination when the discrimination is motivated by racism rather than by religious bias. To my knowledge, the Obama administration never explicitly repudiated that policy, but also generally declined to use Title VI in this way. [UPDATE: My understanding is that the Obamaites didn't inherently object to the notion that Jews can be the subjects of racism, but did not want to extend the reach of Title VI for fear that it would dilute resources needed to protect "underrepresented" minorities.]

The executive order does not mean that the Trump administration is declaring that Jews are, objectively speaking, a nation or a race. Rather, it's that Jews are protected as a nationality or race if discrimination against them is motivated by the perception that they are a nationality or race. Consider Hispanics. Hispanics are not a "race," and indeed can be from any racial group. But no one would raise an eyebrow to discover that Hispanics are protected from discrimination based on race or national origin if subject to discrimination by someone who hates Hispanics as a group.

In short, the executive order is neither novel nor a big deal in its protection of Jews under Title VI, and contrary to various nonsense that circulated on social media, it's not the least bit sinister.

UPDATE: A reader points me to this Dear Colleague letter from the Obama Administration, which adopted the same view of Title VI's scope re Jews as the Trump EO:

While Title VI does not cover discrimination based solely on religion, groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith. These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs). Thus, harassment against students who are members of any religious group triggers a school's Title VI responsibilities when the harassment is based on the group's actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members' religious practices.

Again, the Trump EO defining Jews as a group protected by Title VI is neither novel nor a big deal.

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  1. What shouldn’t have shocked me, but did was how many people explicitly said that this was the same step that Hitler did, declaring that Jews were not German.

    From the first reporting, I thought it was a meaningless statement supporting Israeli politics. However, the more I hear about it the more nonsensical that the initial outrage becomes.

  2. Wait, what? Trump wrote an executive order to extend protection of Jews as a nationality. Trump officials admit this, “There’s been a lot of unclarity surrounding the application of Title VI to Jewishness, basically, because of a question of about whether Jewishness is primarily a religion — in which case Title VI would not apply to anti-Semitic discrimination — or whether it’s a race or national origin,” a senior administration official told reporters. “This EO will clarify that Title VI applies to anti-Semitism.” That’s according to Trump’s minions, today. I don’t understand what you are arguing about, besides the fact that you want to take a pot shot at the NYT.

    1. The article above quotes the executive order. It very clearly does not say what you claim it says. So either you didn’t bother to read the article or you didn’t understand it.

    2. “interpret Judaism as a nationality” is simply incorrect. Judaism is a religion. The EO acknowledges that Jews can be discriminated on the basis of religion, and are a religious group. What would be correct is to the EO recognizes that Jews, while a religious group, may also be subject to discrimination based on race/nationality, as if so, are protected under Title VI. A lot of hysteria on social media last night thinking that Trump was engaged in some right-wing plot to identify Jews as foreigners, for some combination of alt-right and right-wing Zionist reasons. Balderdash.

      1. jonhranta is correct that the problem was two-fold: Trump staffers oversold the EO on Tuesday, likely purposefully to make it appear that they were doing more than they really were in the wake of Jersey City. NYT agreed to run with these statements without reading the text of the actual EO, the text of which appears to have been locked up until Wednesday. This fueled internet speculation. Reading the NYT article it does not appear that they fueled that internet speculation, and in fact highlighted that the EO was supported by the ADL.

        Trump could have used an EO to extend the same interpretation to Title VII, which would have at least solved the problem Eugene highlighted a couple months back in Bonadona v. Louisiana College (W.D. La. Aug. 28, 2019).

        1. I agree that the NY Times can be fooled, but to be fooled by the one person they distrust the most? On the surface that sounds implausible.

      2. You’re right, Judaism is a religion, and not a nationality. But that’s not what Trump’s EO says. Trump wants to extend Title VI protection to Jews. Title VI doesn’t cover religion. It does cover nationality and race. So Trump’s EO conflates Judaism with nationality. Don’t take my word for it, take the Trump spokesperson’s word for it.

        1. Take the Obama administration’s word for it, it’s not controversial to say that Jews are protected as an ethnic group from discrimination based on race or national origin under Title VI.

  3. Jews will be treated as a nationality or a race. Antisemitism is a form of racism, so it should be prohibited under Title VI of the Civil Rights Act of 1964. This executive order just make that explicit.

    1. Precisely

    2. It also makes explicit that criticizing Israeli treatment of the Palestinians could be construed as evidence of anti-Semitism.

      Do you agree with doing so?

      1. It adopts the IHRA definition of antisemitism as one potential factor in determining discriminatory intent, to the extent discriminatory intent is relevant. The IHRA definition does not condemn “criticizing Israeli treatment of Palestinians” as antisemitism or evidence of antisemitism. It does say that analogizing Israeli Jews to Nazis is antisemitic, and it is. But note that analogizing Jews to Nazis is not itself illegal under Title VI or the Eo, you have to have done an underlying illegal act.

        1. The IHRA definition does not condemn “criticizing Israeli treatment of Palestinians” as antisemitism or evidence of antisemitism.

          Describing Israel as an “apartheid state” or criticizing its disproportionate use of force against Palestinians in the OT could quite easily fall within the scope of the IHRA definition, in the hands of an aggressive bureaucrat.

          But note that analogizing Jews to Nazis is not itself illegal under Title VI or the Eo, you have to have done an underlying illegal act.

          I am not sure what you think an “underlying illegal act” looks like, given the list of examples of antisemitism that the IHRA definition runs through. It would seem to plausibly include hosting speakers that condemn Israel as a racist, apartheid state; not cracking down on disruptive protesters with signs critical of Israel; featuring courses that focus on the Palestinian struggle without (again, in the eyes of some bureaucrat) appropriate context on the pro-Israel side; and so on.

          Do you disagree?

          1. “Describing Israel as an “apartheid state” . . . could quite easily fall within the scope of the IHRA definition”

            As well it should. Its a gross slander and motivated by Jew hatred.

          2. The executive order doesn’t say that violating the IHRA is illegal discrimination; it says that the IHRA definitions can be used as evidence of discriminatory intent. Imagine a university administrator who refuses to give a room reservation to a black student group. He claims that it was just a bureaucratic error, not discrimination. But he sent a note with the denial with a tagline “white lives matter.” It’s not illegal to say “white lives matter.” But it can surely be evidence of discriminatory intent in that context. Similarly, Hillel is denied a room reservation. Same scenario, but the tag line is “Zionists are Nazis.” Not illegal to say that. But it can surely be used as evidence that the Hillel room reservation denial was motivated by discriminatory sentiment. Now, “hostile environment” law, which is another issue, can surely give opportunities to aggressive bureaucrats to violate free speech rights. But that’s a problem with hostile environment law, not the IHRA definition. Oddly enough, most of the groups most hostile to the IRHA definition being adopted are just fine with hostile environment law in general. It almost makes you think that freedom of speech is not their primary concern….

  4. “To my knowledge, the Obama administration never explicitly repudiated that policy, but also generally declined to use Title VI in this way.”

    Unless I’m misreading, this is a Dear Colleague letter from the Obama admin affirming that Title VI does indeed apply to discrimination against Jewish people based on “perceived shared ancestry or ethnic identity as Jews.”

    1. Thanks. But they never applied this, in practice, to the university context.

  5. Not exactly a surprise the NYT misreports these days. Maybe the question to ask is when do not misreport?

  6. Every NYT editor’s meeting: “How can we most misrepresent ‘X’ to re-enforce to our acolytes ORANGE MAN BAD?”

    1. No one who regularly reads the NYTimes would say this.

      1. Only someone who drinks their koolaid would say that!

  7. The EO seems common sense to me, and given the rise of antisemitism, regrettably necessary.

  8. The text of the order says antisemitism. I wonder how this will be construed towards non-jewish semites.

    1. Since “antisemitism” is a term of art which means “racist hostility to Jews,” I don’t think that will be an issue.

  9. I don’t see how anyone can say Judaism is NOT an ethnicity. Its adherents believe that one is Jewish if he has a Jewish mother. Period. He doesn’t need to follow halakha, or even believe in god. Further, “Jewish atheism” is a real thing in America. If an atheist can be Jewish, then that means that “Jewish” connotes something other than a religion.

    1. Because you can convert.

      1. But what if you convert purely for the jokes?

      2. The closest analogy is neither religion nor ethnicity as those terms commonly are used in the U.S., but a tribe. You generally need to be descended from a member of the tribe to be a member yourself, but you can also be given membership (“convert”) if you are not so descended.

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