Trump's Order Aimed at Fighting Anti-Semitism Is Constitutionally Problematic, but It's Not Anti-Semitic

Erroneous reporting set off a bizarre backlash that obscured the real problem.

When it comes to refuting dubious allegations of anti-Semitism, Donald Trump cannot win, a point dramatically illustrated by the reaction to the executive order he signed yesterday. The order, which is aimed at fighting "anti-Semitic harassment in schools and on university and college campuses," raises serious First Amendment concerns, which I'll get to in a minute. But much of the initial backlash against the order focused on its purported anti-Semitism. That's right: An order targeting anti-Jewish prejudice somehow became yet another example of Trump's anti-Jewish prejudice. On Twitter, the president's reflexive critics described his order as reminiscent of Nazi racial ideology, "fascist," and "as antisemetic [sic] as it gets."

Those comments were based on a New York Times story that erroneously claimed the order "will declare that Judaism may be considered a national origin." That phrase has since been stricken from the article, without any indication of a correction. But the story still says "the order will effectively interpret Judaism as a race or nationality, not just a religion," which is not accurate either.

Here is 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.

As George Mason University law professor David Bernstein noted yesterday in a Volokh Conspiracy post, that understanding of Title VI is consistent with the policies of the last two administrations. The Justice Department during the George W. Bush and Obama administrations took the position that Title VI "provides protection to Jews, Arab Muslims, Sikhs, and/or members of other religious groups" when "discrimination is based on the group's actual or perceived shared ancestry or ethnic characteristics, rather than its members' religious practice."

The Trump administration's take on Title VI is not new, and it does not reflect a belief that Jewishness resides in one's blood or DNA. "The executive order does not mean that the Trump administration is declaring that Jews are, objectively speaking, a nation or a race," Bernstein writes. "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."

A Times editorial avoids the mischaracterization of Trump's order presented in the paper's news coverage, saying the administration is trying to "combat anti-Semitism on college campuses by using Title VI of the Civil Rights Act of 1964 to withhold federal money from schools that fail to counter discrimination against Jews." The Times generously concedes that "Mr. Trump's action might seem like a gesture of real concern" but complains that "it does little to target the larger source of violent anti-Semitism." In other words, Trump is targeting left-wing anti-Semites when he should be targeting right-wing anti-Semites.

The Times compounds its churlishness by averring that "the president himself has trafficked in anti-Semitic stereotypes, frequently endorsing crude, negative caricatures about Jews." To back up that claim, the editorial cites a speech that Trump delivered on Saturday at the Israeli American National Council Summit in Hollywood, Florida. After bragging about his efforts to move the U.S. embassy in Israel from Tel Aviv to Jerusalem at a reasonable cost, Trump said this:

So we [were] going to spend 2 billion, and one of the [proposed expenditures] was going to buy a lousy location. A lot of you are in the real estate business, because I know you very well. You're brutal killers. (Laughter.) Not nice people at all. But you have to vote for me; you have no choice. You're not going to vote for Pocahontas [i.e., Democratic presidential contender Elizabeth Warren], I can tell you that. (Laughter and applause.) You're not going to vote for the wealth tax. "Yeah, let's take 100 percent of your wealth away." No, no. Even if you don't like me; some of you don't. Some of you I don't like at all, actually. (Laughter.) And you're going to be my biggest supporters because you'll be out of business in about 15 minutes, if they get it. So I don't have to spend a lot of time on that.

In case you doubt that the audience actually greeted Trump's remarks with laughter and applause, you can watch the video here. Although the Jews who listened to Trump's speech evidently were not offended by what he said, the Times is offended on their behalf. But that reaction hinges on an uncharitable interpretation of Trump's comments, colored by the presumption that he "traffick[s] in anti-Semitic stereotypes, frequently endorsing crude, negative caricatures about Jews." Trump may or may not be right that the rich developers who heard his speech will vote their pocketbooks next November (regardless of how they feel about him), but that suggestion is hardly proof of anti-Jewish bias.

The real problem with Trump's executive order is not that it incorporates a Nazi-esque definition of Jewishness, or that the president's sincerity is questionable in light of things he has said that the New York Times editorial board considers anti-Semitic. The real problem (one the Times also notes) is the order's potential impact on freedom of speech.

The order says federal agencies enforcing Title VI should "consider…the non-legally binding working definition of anti-Semitism" adopted by the International Holocaust Remembrance Alliance (IHRA). That definition, which is also used by the State Department, cites "contemporary examples of anti-Semitism" that include "drawing comparisons of contemporary Israeli policy to that of the Nazis," "blaming Israel for all inter-religious or political tensions," "applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation," "focusing on Israel only for peace or human rights investigations," and "denying the Jewish people their right to self-determination" or "denying Israel the right to exist."

These positions strike many Jews (including me) as grossly unfair, but they are not necessarily motivated by anti-Semitism, let alone synonymous with it. They raise important questions about the justice of Israeli policies, the sources of the Israeli-Palestinian conflict, collective vs. individual rights, and the legitimacy of nation-states. A college campus is precisely the sort of place where issues like these should be hashed out. But if allowing students, faculty members, and outside speakers to express vehemently anti-Israel views can be construed as a Title VI violation, and therefore a threat to federal funding, universities may be inclined to err on the side of censorship. That possibility is not far-fetched, since discrimination can include a "hostile environment" that interferes with a student's education, and a hostile environment can be created by things other people say.

The Foundation for Individual Rights in Education (FIRE), which is committed to defending freedom of speech for people across the political spectrum, notes that the IHRA definition of anti-Semitism "may apply to core political speech protected by the First Amendment." FIRE rightly worries that the executive order's "ambiguous directive and fundamental reliance on the IHRA definition and its examples will cause institutions to investigate and censor protected speech on their campuses."

There are legitimate reasons to be concerned about Trump's executive order, but they have nothing to do with his purported anti-Semitism or any other special characteristic of this particular president, his party, or his administration. To the contrary, the order  reflects a bipartisan tendency to battle bigotry by suppressing controversial speech.

Addendum: David Bernstein thinks FIRE's concerns about the executive order are misplaced. "If one wants to make the case that this sets a bad precedent because it may eventually lead, by legal and policy evolution, to the IHRA definition being used to claim hostile environment liability for pure speech, that's a reasonable critique," he writes in an email. "But that's really more of a problem with hostile environment law than with the [executive order]."

Bernstein notes that the order says the "contemporary examples" of anti-Semitism cited in the IHRA definition should be used "to the extent that" they are "useful as evidence of discriminatory intent." In his view, that means the examples come into play only when there is "an underlying act that seems like it might have been discriminatory, but the perpetrator denies intent."

Bernstein also notes that the order says federal agencies, in applying the IHRA definition, "shall not diminish or infringe upon any right protected under Federal law or under the First Amendment." He thinks that language "would prohibit" the Education Department's Office for Civil Rights "from interpreting the [order] to require universities to punish students for engaging in purely political speech not directly aimed at harassing particular students."

In response, Robert Shibley, FIRE's executive director, says "it's unrealistic to think that this definition and list of examples won't be used by students, faculty, administrators, and finally Department of Education bureaucrats to determine what speech counts as anti-Semitic harassment." In practice, he writes in an email, "the definition and list will not just be 'considered' for purposes of determining 'discriminatory intent.' This is not a criminal proceeding where protected speech will only be considered as an evidentiary factor by a jury—it's going to be the same college administrators making the same kinds of decisions they make now in Title IX discrimination cases (that is, bad decisions) under the same kind of pressure over losing federal funding."

Shibley also worries that the precedent set by this executive order will encourage other groups to "demand that certain expression be specified by the government as prima facie examples of anti-X bigotry, with the express purpose of targeting the speech of their political opponents." He adds that the order's assurance about respecting the First Amendment is not enough to save it, because "rhetorically stapling a copy of the First Amendment to a vague instruction mandating 'consideration' of an overbroad definition doesn't ameliorate the inevitable constitutional harm."