No, the Trump Administration Is Not Redefining Judaism as a Nationality – By Mark Joseph Stern (Slate) / Dec 11 2019
Its executive order on anti-Semitism won’t change much at all.
The New York Times published a bombshell report on Tuesday claiming that President Donald Trump planned to sign an executive order that interpreted Judaism “as a race or nationality” under Title VI of the Civil Rights Act of 1964. Title VI governs federally funded educational programs, so the Times warned that the order might be deployed to squelch anti-Israel speech on campus. “Mr. Trump’s order,” the Times further claimed, “will have the effect of embracing an argument that Jews are a people or a race with a collective national origin in the Middle East, like Italian Americans or Polish Americans.”
That turned out to be untrue. The text of the order, which leaked on Wednesday, does not redefine Judaism as a race or nationality. It does not claim that Jews are a nation or a different race. The order’s interpretation of Title VI—insofar as the law applies to Jews—is entirely in line with the Obama administration’s approach. It only deviates from past practice by suggesting that harsh criticism of Israel—specifically, the notion that it is “a racist endeavor”—may be used as evidence to prove anti-Semitic intent. There is good reason, however, to doubt that the order can actually be used to suppress non-bigoted disapproval of Israel on college campuses.
Title VI bars discrimination on the basis of “race, color or national origin” in programs that receive federal assistance—most notably here, educational institutions. It does not prohibit discrimination on the basis of religion, an omission that raises difficult questions about religions that may have an ethnic component. For example, people of all races, ethnicities, and nationalities can be Muslim. But Islamophobia often takes the form of intolerance against individuals of Arab or Middle Eastern origin. If a college permits rampant Islamophobic harassment on campus, has it run afoul of Title VI?
In a 2004 policy statement, Kenneth L. Marcus—then–deputy assistant secretary for enforcement at the Department of Education’s Office of Civil Rights—answered that question. “Groups that face discrimination on the basis of shared ethnic characteristics,” Marcus wrote, “may not be denied the protection” under Title VI “on the ground that they also share a common faith.” Put differently, people who face discrimination because of their perceived ethnicity do not lose protection because of their religion. The Office of Civil Rights, Marcus continued, “will exercise its jurisdiction to enforce the Title VI prohibition against national origin discrimination, regardless of whether the groups targeted for discrimination also exhibit religious characteristics. Thus, for example, OCR aggressively investigates alleged race or ethnic harassment against Arab Muslim, Sikh and Jewish students.”
The Obama administration reaffirmed this position in a 2010 letter written by Assistant Attorney General Thomas E. Perez, who is now the chair of the Democratic National Committee. “We agree,” Perez wrote, with Marcus’ analysis. “Although Title VI does not prohibit discrimination on the basis of religion, 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.” Perez added that Title VI “prohibits discrimination against an individual where it is based on actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity.”