Assessing Some Criticisms of the Trump Administration's Executive Order on Antisemitism

|The Volokh Conspiracy |

It strikes me that the best criticism of the order is that the executive branch is expanding the reach of Title VI, and has been since the Bush II administration, without either Congressional action or at least a formal rulemaking process that would allow public objections during the notice-and-comment period and also litigation against whatever winds up being published in the Federal Register. As someone who was strongly critical of the Obama administration for governing through executive order and informal guidance, I'd need some persuading as to why the same criticisms don't apply here.

As for measured substantive criticism, David Schraub in The Atlantic provides a useful and thoughtful summary of criticism from the left. Here are some of the prominent criticisms, and my response.

(1) While there is nothing inherently wrong with the Trump executive order, Schraub suggests that Jews and others rightly don't trust the Trump administration regarding antisemitism, and therefore don't trust the administration to properly and fairly enforce the order on college campuses. Whatever one thinks of Trump and his administration–and I have knowledgeable Jewish friends who think everything from 'the Trump administration is institutionally antisemitic' to 'the Trump administration is the most philo-semitic in history'–it's not the "Trump administration" that enforces Title VI, it's the Department of Education Office for Civil Rights. There's no reason to think that the civil servants at OCR have gone Trumpian. Ken Marcus, the political appointee who runs OCR, has made a career out of fighting antisemitism; it's ridiculous to think that Ken deserves Jews' mistrust.

(2) Shraub references the "more legitimately controversial aspect of the Executive Order: its misappropriation of the IHRA definition of anti-Semitism for use in assigning civil liability." Schraub fails to make it clear that this definition is only to be used as possible evidence of discriminatory intent when otherwise potentially illegal discrimination is going on. No one is going to be civilly liable for saying something that violates IHRA by itself. True, aggressive bureaucrats can blur this distinction under hostile environment law, and ignore relevant First Amendment constraints. But that's a problem with hostile environment law and aggressive bureaucrats, not in using the IHRA definition as one factor in assessing discriminatory intent. I'm all for constraining hostile environment law with strong First Amendment protections, but I'm not in favor of the position that hostile environment law should be applied vigorously to protect other minority groups, but not Jews.

(3) Finally, Schraub suggests that the Trump administration has proven itself all-too-willing to crack down on speech on campus related to the Middle East it doesn't like. In particular he objects that the Trump administration has violated freedom of speech and academic freedom by starting to monitor academic balance in Middle East Studies programs that receive federal funds. I certainly agree, as a general matter, that the federal government has no business monitoring academic programs for balance. But the particular funding program at issue provides funding for Mideast studies to promote knowledge of the Middle East to serve U.S. foreign policy objectives. As a result of this mandate, the relevant funding law requires universities to pledge that their programs will be balanced. In other words, monitoring balance is not some bizarre or aggressive anti-academic freedom initiative, but just enforcing the law–a law, admittedly, that previous administrations failed to enforce. But aren't we having an impeachment right now in part over the notion that the executive branch is supposed to follow Congressional mandates with regard to appropriations? Universities should not accept money with such strings, especially when the money is not, as it is not in the Mideast Studies funding context, remotely crucial to their fiscal stability. But if they do accept federal money with such strings, they, and critics like Schraub, can hardly object that their academic freedom is being denied.

UPDATE: How might the IHRA definition of antisemitism 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, the Jewish student organization is denied a room reservation. Same scenario, but the tag line is "Zionists are Nazis." It's not illegal to say that. But it can surely be used as evidence that the Hillel room reservation denial was motivated by discriminatory sentiment against Jews, and it would be almost facetious in that context to say that the tagline was merely evidence of hostility to Israel and its supporters and not evidence of discriminatory animus toward Jews.

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  1. possible evidence of discriminatory intent

    I’m still hazy on the effect of this EO on evidentiary rules then.

    Was anything previously forbidden from being used as evidence of discriminatory intent? Does this automatically make such evidence considered more probative the prejudicial? Is it a thumb on the scales?
    Is this more just guidance for DoJ prosecutorial discretion purposes?

    1. No change in the evidentiary threshold.

      What this does is continue the Obama and Bush policy of considering “Jew” to be a race too rather than exclusively a religion. That matters because while many laws say you can’t discriminate on the basis of sex, race, or religion, some laws do not include religion in that.

      In Bernstein’s example if the law prohibiting some kinds of discrimination in school room reservations allowed (by not prohibiting) discrimination based on religion then Jews could be lawfully discriminated against.

      So in applying laws that already prohibit religious discrimination there is no change whatsoever, but in cases where only racial discrimination is prohibited the EO explicitly extends the Bush/Obama non-codified policy of interpreting Jewishness to include race in addition to religion, and extend protections to them under the law.

      The real headline ought to have been “Trump formalizes explicit policies of prior two administrations prohibiting discrimination against Jews”

      1. Read the OP. I, and the OP, are now talking about the adoption of the IHRA definition of anti-Semitism.

  2. To understand the EO’s implications for free speech, it is helpful to read Kushner’s op ed, for it fleshes out the core problem. He writres:

    “For example, the [International Holocaust Remberance] alliance defines “the targeting of the state of Israel, conceived as a Jewish collectivity,” and those who deny “the Jewish people their right to self-determination, e.g., by claiming that the existence of a state of Israel is a racist endeavor” or those who compare “contemporary Israeli policy to that of the Nazis” as examples of anti-Semitism.”

    As Masha Gessen noted in the New Yorker: “All three examples perform the same sleight of hand: they reframe opposition to or criticism of Israeli policies as opposition to the state of Israel. And that, says Kushner, is anti-Semitism.”

    So I’m less sanguine that the EO will not threaten free speech, particularly because, as we know from the Obama administration “Dear Colleague” letter, colleges dependent on federal financial assistance will overreact by suppressing or punishing speech that arguably might subject them to loss of federal money. All the incentives tip toward suppression of criticism of Israel.

    1. It doesn’t matter what Kushner or anyone else says is antisemitic. Expressing antisemitic sentiment isn’t illegal, and nothing in the executive order allows or encourages the government to claim otherwise. Universities do overreact to the possibility of hostile environment liability. If that’s the problem, get rid of hostile environmental liability based on speech, don’t suggeste it’s only a problem when applied to Jews.

      1. I have no problem with principled free speech activists who oppose broad definitions of antidiscrimination rules for fear that they will chill speech. But some of the critics of the EO on the left have not expressed such concerns about, e.g., hostile environment law more generally, making me question their motives in this case.

      2. In the unitary executive system now beloved by the Attorney General, the Office for CIvil Rights is a subordinate part of the Education Department, whose secretary serves at the pleasure of and under the direction of the president, who employs Kushner with specific responsibility for enforcement of the EO, so it very much matters what Kushner says, and Kushner’s definition of antisemitism clearly encompasses otherwise protected speech that is critical of Israeli policies. Because Title VI, like Title IX, is a spending clause statute, the government can impose speech restrictions in return for its money that it could not impose as a sovereign since schools are always free, albeit often only in theory, to reject all federal financial assistance.

        Hostile sex environment funding loss / coerced resolution agreements did not threaten colleges before the Dear Colleague letter; similarly, hostile national origin / race funding loss or coerced resolution agreement has not threatened colleges that host speakers who oppose Israeli government policies until now. The threat of an OCR investigation revolutionized college sexual harassment policies and enforcement; schools rushed to abolish due process and to regulate speech to avoid OCR complaints, and there’s every reason to think that the EO, backed by what Kushner wrote, will have the same effect. Even Harvard backed down in response to the Dear Colleague letter, albeit over the objections of law faculty, and though Harvard may show a stiffer spine in response to the EO than it did in response to the Dear Colleague letter, schools with fewer resources, all of whom know where Kushner sits, won’t want to spend them defending an OCR investigation, and will instead avoid speakers and programs that include criticism of Israeli policies or support of BDS.

        1. I don’t know what EO you are reading, but unlike the Dear Colleague letter, this EO doesn’t have anything remotely like specific rules requiring colleges to crack down on anti-Israel speech or speakers; indeed, it doesn’t have such rules AT ALL. As for, “who employs Kushner with specific responsibility for enforcement of the EO,” I don’t know what that could possibly mean. Kushner’s only role is as a presidential adviser. He can’t “enforce” anything. And, as noted, if the concern is that hostile environment law is too broad or too unconstrained by the First Amendment, that problem goes well beyond this EO and antisemitism, and is a good reason to limited hostile environment law and subject it to proper First Amendment standards. Yet oddly enough, some of the most vociferous critics of the EO are also big fans of hostile environment law, suggestion that their real concern isn’t freedom of speech.

    2. It’s far more likely that on college campuses the effect might be to restrain administrators from allowing or encouraging suppression of criticism of Palestinian causes or advocacy of anything pro-Israel.

      1. Speech restrictions in order to fight potential future speech restrictions, but this time by the bad guys!

        1. Agreed on the circular idiocy of that, but the problem then isn’t this action, it’s the entire idea of hostile environments extended to areas that include protected speech.

          If a school will be held liable for the actions of students – none of whom broke the law – then the school is strongly incentivized to extend the law. That the school doesn’t have the power to do so (because it’s unconstitutional) but is still held accountable just highlights the problem. Power and responsibility have to go together, and the solution in this case to correct hostile environment laws.

          Not having thought about it in depth I’m not sure they can be meaningfully saved. If you cut out all of the perverse incentives does the law still provide any meaningful benefits, that aren’t already captured by other laws targeting direct activity?

          1. This is not happening. When’s the last time a school was held liable for the actions of its students when they didn’t break the law?

        2. The good guys haven’t been engaging in de-platforming, and definitely aren’t getting the encouragement, tacit or otherwise, from administrators to do so.

          I don’t like hostile environment law in general but adding jews to the other groups is not going to result in stifling anti-Israel speech.

  3. In other words, monitoring balance is not some bizarre or aggressive anti-academic freedom initiative, but just enforcing the law–a law, admittedly, that previous administrations failed to enforce. But aren’t we having an impeachment right now in part over the notion that the executive branch is supposed to follow Congressional mandates with regard to appropriations?

    So it looks like in your zest for rule of law, you skipped right over the Constitutional implications. Conditioning government funding on having viewpoint balance seems problematic, no?

    1. I don’t think so, but if so, that makes the funding, not just the condition, unconstitutional.

        1. The doctrine of unconstitutional conditions was mostly taught to me via exceptions like Rust and airport searches. But a bit of digging turned up Legal Services Corp. v. Velazquez (2001)
          https://en.wikipedia.org/wiki/Legal_Services_Corp._v._Velazquez

          1. This reminds me of a phrasing that Mark Bennet (the Texas attorney, not the Judge) uses to explain how to tell if something is a content based restriction or merely time place and manner.

            “If you have to read it (or watch it or listen to it), it’s content based.”

            I think there an additional corollary based on that idea – if you have to understand the context around the subject, it’s almost definitely a viewpoint based restriction. If an old computer can fix the text via a serach-and-replace function it’s probably content based rather than viewpoint based.

            Those simple rules describe almost every 1st Amendment ruling in the current era of strong protections, and can be used to make evaluating new instances fast and easy.

    2. I think it would be considered government speech. Government has its own free speech rights and does not have to be viewpoint neutral in contracting and funding that speech.

  4. ?? “So it looks like in your zest for rule of law, you skipped right over the Constitutional implications.”

    He mentioned the constitutional implications in the sentences right before your quote. Maybe he didn’t discuss them as fully as you would have liked, but this is really tangential to the OP. If you would like to know more about how the 1A applies to government funded speech, maybe you can do some research and post your findings in a comment. I’d like to know more too.

    1. This isn’t government funded speech.

  5. “No one is going to be civilly liable for saying something that violates IHRA by itself. True, aggressive bureaucrats can blur this distinction under hostile environment law, and ignore relevant First Amendment constraints. But that’s a problem with hostile environment law and aggressive bureaucrats, not in using the IHRA definition as one factor in assessing discriminatory intent. I’m all for constraining hostile environment law with strong First Amendment protections, but I’m not in favor of the position that hostile environment law should be applied vigorously to protect other minority groups, but not Jews.”

    I’d say that if hostile-environment law is bad, it should be, first, not extended, and, second, rolled back if possible.

    To say hostile environment doctrine goes too far but so long as we have it, let’s extend it to more situations for the sake of supposed fairness, is how we get bad policies more entrenched, not less so.

    Rolling back bad policies sometimes starts by making exceptions, drawing back from some of the implications, and only afterward deciding for the sake of consistency to dump the policy as a whole.

    1. In the campus context, it seems some of the language indicates that certain kinds of Israel-bashing raise Title Vi concerns. In the hostile-environment context, this could well mean that campus administrations will be pressured to clamp down on Israel-bashing.

      I’m against Israel-bashing because I don’t want a country singled out for double standards and academic boycotts, but as our own Artie might say, even Israel-bashers have rights, including the right to say offensive stuff. We’ve seen what colleges do to viewpoints and words they deem offensive – give the threat of aid cutoff and they might extend this to debates on the Middle East.

      1. (With the pressure they’re getting from “both sides,” the college administrators may decide to “split the difference” and ban either harsh criticism or fulsome praise of Israel, or even of other Mideastern countries (especially if those countries are oil-rich and donate to the University).

      2. It might make de-platforming a little less popular with administrators, but criticism of Israel, including Israel’s right to exist, will continue to be quite healthy and unmolested on college campuses.

        1. Unless, as I hinted, they decide to ban “both sides” for the sake of “fairness” and “better campus climate.”

          1. But even that is viewpoint based discrimination, which is always struck down.

            At least the content based restriction of “no talking about Israel or Palestine” has a chance of surviving, even if it’s easily worked around.

            1. What about private colleges/universities?

              1. No difference in the analysis. Title VI applies to every educational institution that receives federal funding regardless whether the institution is characterized as “public” or “private.” Remember, Title VI does not ban religious discrimination precisely because Title VI applies to private religious institutions. To escape Title VI, you’d have to pull a Hillsdale and opt completely out of all federal education funding.

                1. Right, but I don’t think you can bring a 1st Amendment challenge to a private university’s policies unless there’s a state statute saying so (California) or first-amendment-style policies in the student handbook.

            2. “At least the content based restriction of “no talking about Israel or Palestine” has a chance of surviving, even if it’s easily worked around.”

              That has no chance of surviving in any US court. 1A defense against content and viewpoint discrimination has, so far, been very robust.

              None of this works to prohibit speech but to tag efforts to stifle speech by identifying invidious intent.

  6. “no reason to think that the civil servants at OCR have gone Trumpian”

    Of course not, the impeachment charade has proven that the civil service is actively anti-Trump, root and branch.

  7. “it’s not the “Trump administration” that enforces Title VI, it’s the [OCR] … it’s ridiculous to think that [OCR head] Ken [Marcus] deserves Jews’ mistrust”

    Assuming that Marcus serves at the (visual-thinker trigger warning) continuing pleasure of Trump, the latter’s position on the antisemitism spectrum is hardly irrelevant to the fair enforcement of the EO.

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