(RNS) — At Wednesday’s White House Hanukkah party, President Donald Trump presented his guests with one of his patented executive orders, titled Combating Anti-Semitism. Its stated purpose is to ensure that Jews in educational institutions receiving federal funds are protected against discrimination under Title VI of the 1964 Civil Rights Act.
According to the Republican Jewish Coalition, the order is “a truly historic and important moment for Jewish Americans.” According to J Street, it is “a cynical, harmful measure designed to suppress free speech on college campuses, not fight anti-Semitism.”
It’s neither. Here’s the story.
Title VI prohibits discrimination in federally assisted programs and activities on the basis of race, color and national origin but not religion. Over the years, however, there’s been some recognition in federal law that Jews (and other religiously identifiable groups) might be entitled to protection on grounds other than religion.
In 1987, the U.S. Supreme Court determined that Jews may be found to be victims of racial discrimination because a section of the U.S. Code written in 1866 ensuring property rights to nonwhites understood “race” to mean something different from what it means now. Thus, as Justice Byron White wrote for a unanimous court, “Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute.”
With respect to Title VI, in 2004 the Office of Civil Rights in the Bush administration’s Department of Education wrote a letter declaring that just because a particular group held a common faith didn’t mean that it might not be subject to discrimination on grounds of race or ethnicity. For that reason, the letter said, the office “aggressively investigates alleged race or ethnic harassment against Arab Muslim, Sikh, and Jewish students.”
This position was reiterated in 2010 by Thomas Perez, assistant attorney general in the Obama administration, in a letter to DOE. “Although Title VI does not prohibit discrimination on the basis of religion,” Perez wrote,”discrimination against Jews, Muslims, Sikhs, and members of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.”
So by the official position of the Trump administration’s two predecessors, the federal government already includes anti-Semitism within the purview of Title VI.
Nevertheless, in the face of evidence of an increase in anti-Semitic incidents on American college campuses, there has been agitation for federal legislation that specifically authorizes DOE to go after anti-Semitism under Title VI. Earlier this year, the Senate passed a bill titled the Anti-Semitism Awareness Act of 2019, which tells the department to “take into consideration” the definition of anti-Semitism adopted by the International Holocaust Remembrance Alliance “as part of the Department’s assessment of whether the practice was motivated by anti-Semitic intent.”
That definition reads:
Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
In its list of examples of contemporary anti-Semitism, the alliance includes a number that involve hostility to the state of Israel, which the bill describes as “useful examples of discriminatory anti-Israel conduct that crosses the line into anti-Semitism.”
The bill awaits action in the House, and there is reason to think that it will not be given a vote by the Democratic leadership, precisely because this pro-Israel language is unacceptable to a portion of the Democratic members.
Trump’s executive order closely tracks the bill, and it is fair to say that its purpose is to make some political hay with Jewish voters. But in actual fact, neither the Anti-Semitism Awareness Act nor the executive order would achieve anything that can’t be achieved under current law. At most, it may serve to encourage anti-anti-Semitism activity within DOE and to serve notice on colleges and universities that the feds are watching.
If such bully pulpiteering must be done, then better to revert to the inclusive language of the Bush and Obama era letters. Yes, Jews may be the object of Title VI-covered discrimination, and so can other ethnic and racial groups. How about the “Islamophobia, anti-Sikhism and Anti-Semitism Awareness Act of 2019”? How about an executive order to that effect?