Correcting the NY Times et al on Anti-Semitism

The executive order that President Donald Trump signed during the White House Hanukkah party last week continues to be misreported by the New York Times and other outlets, who have described it as redefining Jews as a “nationality.” David Bernstein, a law professor and the executive director of the Liberty & Law Center at the Antonin Scalia Law School at George Mason University, has been tracking the New York Times' "hit pieces" on the executive order. You can see his commentary here, here, and here.

As we noted last week, the actual executive order did not redefine Judaism or Jews. It reiterated guidance for the executive branch issued in 2010 and expanded it to address anti-Semitism disguised as “anti-Zionism,” using the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism.

Daniel Hemel, an assistant professor at the University of Chicago Law School and a visiting professor at Harvard Law School, takes issue with the President’s use of the IHRA definition of anti-Semitism, but he explains that the order’s extension of Title VI protections to Jews on college campuses is on firm legal grounding. Hemel writes: 

Mr. Trump’s interpretation of Title VI as applying to anti-Semitism is neither new nor troubling. The characterization of anti-Semitism as a form of racial or national-origin discrimination has a secure place in American law.

…Fast-forward to 1982, when Shaare Tefila, a synagogue in Silver Spring, Md., was spray-painted with swastikas, Ku Klux Klan symbols and other anti-Semitic messages. The synagogue and several members responded by suing those who had vandalized their house of worship. The plaintiffs cited the Civil Rights Act of 1866, which applies to racial discrimination. They argued that even though Jews are not a racially distinct group, the vandals viewed Jews as a distinct race and were motivated by racial animus. The case ultimately reached the Supreme Court, which voted unanimously in the synagogue’s favor… The Shaare Tefila case teaches that placing a group within a racial category for purposes of civil rights protection does not require us to endorse the idea that the group is racially distinct…

…Just as African-Americans qualify for protection from racial discrimination even though the very idea of race is based on pseudoscience, anti-Semitism can be racism for legal purposes even though Jewishness cannot be reduced to racial terms… The nuances of Jewish identity and experience do not… shield Jews from attackers who see Jews as a nation apart. Jews can suffer national-origin discrimination regardless of whether Jewishness is a nationality.

The Education Department under President George W. Bush recognized that anti-Semitism could constitute racial or national-origin discrimination within Title VI’s ambit. The Justice Department under President Barack Obama reaffirmed that view. President Trump’s executive order is consistent with those interpretations, though he is the first to articulate this position as an administration-wide policy.

Human rights lawyer Alyza Lewin offers this argument for the President’s use of the IHRA definition: 

…It is not unlawful in the United States to make racist or anti-Jewish comments. In America, the First Amendment protects your right to express yourself as a bigot. Nothing in the Executive Order changes that fact. But the First Amendment does not insulate and prevent those who make racist or anti-Semitic comments from being labeled as racists and anti-Semites. By incorporating the IHRA definition, the Executive Order delineates what constitutes anti-Semitism so that it can be recognized, labeled and condemned.

… There are Jews in Israel and around the globe who support the right of a Jewish nation-state, but who do not support some or all of the policies of the current government. Criticizing those policies is not anti-Semitic. What is anti-Semitic, according to the IHRA definition, is claiming that there is no right to a Jewish state within any borders.

…Trump’s Executive Order does not bar students or professors from expressing these perspectives, and it certainly does not prevent students or professors from engaging in constructive, challenging dialogue regarding the policies of the current government of Israel.

However, the Executive Order puts universities on notice that they must treat this type of anti-Semitism the same way they treat racism or other forms of discrimination. Universities must call out and condemn as anti-Semitic the persistent and pervasive demonization of Zionists, just as they would call out and condemn persistent and pervasive anti-black, anti-Hispanic or anti-Muslim rhetoric.