Are Jews Protected from "Racial" Discrimination Under Title VI?

A recent article discussing the issue neglects to consider the precedent of "Hispanics"

Since 2003, the federal government's official view has been that Jews are protected from racial (but not religious) discrimination by educational institutions under Title VI of the 1964 Civil Rights Act. This protection underlies dozens of lawsuits and administrative actions taken by or on behalf of Jewish students, especially since the Hamas atrocities of October 7 unleashed a wave of campus antisemitism.

However, there is a dearth of caselaw on the issue of whether Jews are in fact protected. Title VI intentionally excluded religious discrimination from its purview; if Jews are seen as entirely a religious group, rather than an ethnic group, the case for protection under Title VI becomes weak. And while the Supreme Court has held that Jews are protected as a "race" under the 1866 Civil Rights Act, that decision was based on the Court's understanding of what groups were considered "races" in 1866. By contrast, in 1964 Jews were mostly considered to be a religious minority, not a racial or even an ethnic one.

In a recent article, Professors Benjamin Eidelson and Deborah Hellman discuss the question of whether Jewish ethnicity provides a proper hook for protection from racial discrimination under Title VI. Eidelson and Hellman seem ambivalent on the matter, but ultimately conclude that courts are likely to hold that Jews are indeed protected.

I don't have any significant quarrels with their analysis or conclusion, with one caveat: they ignore the most obvious precedent for Jews being covered by prohibitions on "racial" discrimination. To wit, courts routinely hold that discrimination against Hispanics is barred by prohibitions on race discrimination.

To put the matter bluntly, "Hispanic" denotes a shared history of descent from a Spanish-speaking country, and that's all. Hispanics can be of African, Indigenous American, European, or even Asian descent, or any combination of those. As I discuss in my book Classified, historically in the United States what we now call Hispanics (the term did not come into common use until the US government adopted it in 1978) were generally considered by the federal government to be white, unless they were clearly of African descent. When the US codified population-wide racial classifications for the first time in 1978, Hispanics were designated an ethnic, not racial, group. They remained that way until 2024, when the Biden administration moved Hispanic to a new "racial or ethnic" grouping.

Nevertheless, since 1964 courts have not only held across a wide range of federal statutes and constitutional provisions that Hispanics are a racial group for the purposes of civil rights laws, they have done so even when the Hispanic individual involved in the litigation was a self-identified white Hispanic.

For example, in Village of Freeport v. Barrella, 814 F.3d 594 (2016), an Italian American plaintiff sued, arguing that the defendant illegally discriminated against him in favor of a Hispanic job candidate. The defendant rejoined that the Hispanic job candidate was a white Cuban American, and it could not be guilty of racial discrimination by favoring one white (Cuban) applicant over another white (Italian) applicant. The court rejected this argument, holding instead that "Hispanic" is a race for purposes of § 1981 and Title VII. More generally, the court held that discrimination based on ethnicity constitutes racial discrimination under Title VII.

There seems no good reason to conclude that Title VI, part of the same law, uses a different definition of discrimination based on race than does Title VII. And if "Hispanics," an ethnicity essentially invented by the US government in the 1970s for purposes of easing data collection and enforcement of civil rights legislation, are deemed protected from racial discrimination, it seems that a fortiori Jews, who have been a "people" for three thousand years, are also protected.

Comments

[Incunabulum]

Isn't being Jewish both a religion and an ethnicity. You can be both or you could be one or the other?

Is the court saying that if I convert and then are discriminated against for being Jewish that I'm not protected because I'm not *ethnically* Jewish?

[SRG2]

I have no problem describing myself as an atheist Jew. It's a common enough description. You don't find anyone calling themselves an atheist Catholic or atheist Muslim.

[Ciobair]

Not so sure. Outspoken atheist Richard Dawkins, e.g. described himself as "culturally Christian" - and if one believes "Yes Minister", not believing in God is a requirement to become Archbishop of the CoE. :o) Slightly less facetiously, "Christian atheism" is a recognised intellectual tradition, with prominent proponents e.g. Thomas Altizer's " Gospel of Christian Atheism", Peter Rollin's "pyrotheology", or Slavoj Žižek whi said: "The only way to be an atheist is through Christianity."

[SRG2]

Calling oneself a cultural Christian is not the same thing. And, though it sounds like a quibble - there's a difference between being a Christian atheist - an atheist brought up in the Christian intellectual tradition - and an atheist Christian, an actual Christian who is an atheist.

[gormadoc]

There are people who do. https://www.huffpost.com/entry/why-i-decided-to-call-myself-an-atheist-muslim_b_3261226

[SRG2]

Thanks - I had not come across this before. But regardless of the terminology, the article indirectly supports the deeper point about Jews being different in this case.

[Michael P]

That seems right to me. I think that Ashkenazim and Sephardim should also be considered ethnicities, although I'm not familiar with discrimination on the basis of either of those specifically. (I don't take a position on Mizrahi Jews as an ethnicity because I don't know enough about them.)

[thesafesurfer]

What a horrendous state the American legal establishment finds itself in debating "are Jew protected from discrimination" under blah, blah, blah.

The ONLY acceptable debate is how to prevent anti-Semitism and punish any and all parties who commit it in the United States of America.

[Gregory]

How was "hispanic" a racial category in the courts "since 1964" when the term wasn't in usage for another decade?

[Pavel Petrovich]

Hispanic becomes a 'racial' category when the left wing needs their votes. Simple.

[bernard11]

Maybe the way to approach the problem is from the point of view of the bigot.

Are Jews discriminated against because of our religion, or our ethnicity? As I pointed out in a comment elsewhere, the answer for at least 150 years or so, is both - the bigot uses whatever tool is at hand.

If Jews are discriminated against for ethnic reasons, then surely we should be accorded the same protections as other ethnic groups.

[Don Nico]

Bernard,
You are being too rationale about discrimination which is by its very nature irrational.

[gormadoc]

It's as if the map is not the place.

[ReaderY]

I think originalism fairly applied cuts against Professor Bernstein’s thesis. In 1964, the 1967 war had not yet happen, and the mentality was still closer to the 1950s.. American Judaism was overwhelmingly dominated by movements that attempted to impress on the American public that Jews were good white people, like Christians but with a different prayer book, and Judaism was purely a religion and in no way a race, and with no ethnic or nationalist elements or aspirations. Reform had an anti-Zionist platform at the time expressly disclaiming any prior nationalist or ethnic tendencies. The mindset was not so far removed from the one in the 1940s when Jewish community leaders overwhelmingly opposed and did their best to try to stop an Orthodox-sponsored march on Washington to protest the Holocaust. Jewish leaders did this precisely because they didn’t want the Amercan public to think of Jews as a people or an ethnicity. They especially didn’t want the public to associate Judiasm with the long coats and black hats of Orthodox rabbis of the times, which they found embarassingly un American and didn’t want to be seen publicly in a place like Washington. I think the mindset succeeded enough to shape Congress’ thinking. Moreover, the anti-semitism of the time was overwhelming religious in its rhetoric (Christ-killers etc.)

Professor Bernstein is basing his thesis on views which, while currently prevalent, came only later. The rise of general ethnic pride movements in the United States, as well as the widespread public spread of movements towards Zionism and Jewish nationalism, happened only later in the 1960s. While the previous mindset may no longer be remembered, I think a fair application of originalism requires looking at things from the point of view of the mindset at the time, not the current one.

[wvattorney13]

I think after the holocaust, the American people thought full well of the Jewish people as a race. Hitler wasn't exterminating people based upon their rejection of Christ as the Messiah.

[Pavel Petrovich]

Oh, that story about a mild insecticide in the shower? Greatest lie ever told. Soviets were the godless ones. It was the Bolsheviks who tore down the churches.

[ReaderY]

Apparently Holocaust denial is on the rise.

[ReaderY]

The perspective which I have sometimes called “legitimist,” which does not point to a correct answer but merely attempts to set boundaries between legitimate and illegitmate answers without picking among the legitimate ones, would put Professor Bernstein’s position on the legitimate side. As I argue above I don’t think it passes an originalism test. But it is nonetheless based on a dictionary and historical interpretation of what the words mean that has a legitimate basis and doesn’t represent a pure imposition of policy preferences. The view would have been at least a minority view at the time.

[David Bernstein]

I suppose my point is that until re section 1981, courts haven't followed an "originalist" type methodology under the 1964 act. If they did, Hispanics wouldn't be a race; no one in 1964 would have even known what you were talking about if you said "discrimination against 'Hispanics'" (Mexicans or Puerto Ricans yes; Hispanics no). And when the government had the choice in 1978, it still chose not to classify Hispanics as a race. So in light of those facts, if Hispanics are nevertheless protected from race discrimination on the basis of ethnicity, Jews should be as well.

[David Bernstein]

And just as an aside, I'm pretty sure the Reform movement had dropped its antizionism by 1964.

[bernard11]

American Judaism was overwhelmingly dominated by movements that attempted to impress on the American public that Jews were good white people, like Christians but with a different prayer book, and Judaism was purely a religion and in no way a race, and with no ethnic or nationalist elements or aspirations.

Only partly true. First, this whole business about Jews denying that we are an ethnic group was caused by the fact that a lot of people thought we were. Contrary to your comment, the antisemitism of the time was not predominantly based on religious belief but on ethnicity.

Hitler did not much care how religious you were, or even if you were a Christian. Jewish ancestry was enough. Later, less murderous, antisemites generally felt much the same.

[Frank Drackman]

For some reason the Georgia Medical Board always asks us what race you are when you renew your license, I can understand the questions about DUI’s, Drug Rehab, Lost Hospital privileges, but why race?
One year I picked “Other” and elaborated “Human”(there are those who would question that)
They didn’t like that, and I had to change it (and my claimed fluency in Vulcan)

Frank

[bernard11]

the Georgia Medical Board always asks us what race you are when you renew your license,

Why does the Georgia Medical Board ask you what race I am? Why do they think you would know?

Fortunately, I have no license to renew, so I guess it doesn't matter.

[Pavel Petrovich]

Why are 'jews' so special? As a political 'state' in the corner of the Mediterranean, are they not actors on the global stage? First Amendment protects criticism of faiths, protects bigotry, protects hate speech; why are the jews special? Can't even define a 'jew', it is not the same as very dark skin color or slanted eyes. In the eyes of Liberty, the jews are playing outside the rules.

[ReaderY]

Interesting that your closing argument refers to “liberty” as a set of rules that supposedly restrict what people are allowed to be and how they are allowed to define themselves. Let’s just say that’s neither the view of “liberty” most people have, nor the one taken by the American constitution.

[Ridgeway]

My understanding is that Title VI bars discrimination on the basis of race, color and national origin.

Anti-hispanic discrimination would seem to fit much more comfortably in "national origin" rather than race: Different bucket, but same level of protection.

Regarding Jews, most people agree that that "race" is not a particularly meaningful concept from a purely scientific point of view. From a cultural point of view, though, it is extremely important. And anti-semites have historically viewed Jews as an alien/inferior race, distinct from whites, Aryans, Frenchmen or whatever the particular antisemitic "in group" was. So it makes a lot of sense to view Jews as a distinct race for purposes of antidiscrimination law, since the people most likely to discriminate against them view them as a separate race.

This also makes sense when you look at the reason for excluding religion from the list of prohibited discriminations in Title VI. Religious education has a long and generally positive history in the US, and most people are fine with Catholic schools, Jewish schools, Baptist schools etc. Madrassahs are an open question....

But discrimination against Jews (especially in admissions) was a big issue in otherwise non-religious schools in the past, and that discrimination has (in terms of student treatment, more than admissions) reared its ugly head again.

[GKHoff]

A Jewish friend and his Jewish wife adopted a baby years ago. Neither natural parent of the baby was Jewish. The baby was brought up a a Jew, and as an adult continues to observe Jewish laws and traditions, and attends Temple. Is she protected from discrimination on the basis of race? How about other persons who were raised as Christians but later converted to Judaism?

[wvattorney13]

Despite how complicated we are trying to make it in this thread, when it is said that someone is Jewish, that can mean one of two things, or both: 1) that he is an adherent of Judaism, or 2) he belongs to a particular race of people. It is both a religion and a race.

The child in your example would be Jewish because of his religion and not because of his race.

[GKHoff]

And therefore the child (now adult) would NOT be protected against discrimination on the basis of race? But her Jewish parents would be? That was the question I posed.

[wvattorney13]

We are all protected against discrimination because of our race.

I assume you are asking if the child would be protected based upon being a member of the Jewish race even though the child is non-Jewish and the adoptive parents are Jewish.

I'll admit that I've never had that question before, but I would assume the answer would be the same if two black parents adopted a white child, that the child would not be considered black.

[David Bernstein]

What you're missing is that the protection from racial discrimination doesn't come because you're a member of the ethnic/racial group, but because you're perceived by others to be a member of that group. Caselaw is quite clear on that. So you don't have to get into the question of whether the adopted child is ethnically/racially Jewish. If others perceive him as Jewish ethnically and discriminate against him for that reason, that's quite sufficient.

[Ghost of Patrick Henry]

The "government", i.e., the Executive branch cannot lawfully create races or ethnic groups. Just another example of how Civil Rights laws are irrational AND unconstitutional. They all violate Equal Protection. End them ALL. Follow the MLK path and reject the Malcolm X and Louis Farrakhan path.

[David Nieporent]

Just another example of how Civil Rights laws are irrational AND unconstitutional. They all violate Equal Protection. End them ALL. Follow the MLK path and reject the Malcolm X and Louis Farrakhan path.

If you think that MLK was opposed to civil rights laws, you might want to try suing your high school social studies teachers for educational malpractice.

[Ghost of Patrick Henry]

He did not live to see what the Civil Rights acts were turned into by the federal courts. Imo, he would be appalled at the race baiting, anti-white racist crap that you, and the federal courts, spew.

[David Nieporent]

What were the Civil Rights acts "turned into"? And in what way do you think that this is closer to Malcolm X than MLK?

[Ronald Kessler]

Read “The Netanyahus: An Account of a Minor and Ultimately Even Negligible Episode in the History of a Very Famous Family” by Joshua Cohen, for a discussion of Jews as a race according to Ferdinand and Isabella. And Bibi’s father.