The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.