The Strange Thing About Trump’s Anti-Semitism Order

(Bloomberg Opinion) -- President Donald Trump has signed an executive order aimed at combating anti-Semitism on college campuses. What could possibly be wrong with that? The answer is nothing — provided the directive is applied in a way that doesn’t infringe on the free speech rights of student groups that are critical of Israel. But the way the executive order is written opens the possibility for misuse, and the danger of chilling student speech on campus in a way that doesn’t serve the cause of fighting the scourge of anti-Semitism.

Start with the details of the order, which need a bit of legal background to be understood. Title VI of the Civil Rights Act of 1964 says that “No person … shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

That means that colleges and universities that get federal funds can’t discriminate on the basis of race or national origin. It also means, as interpreted by the Department of Education, that they must take steps to make sure their campuses aren’t places that are hostile based on race or national origin.

The first thing the executive order does is to state that Jews may be victims of Title VI discrimination notwithstanding that they are members of a religious group. In other words, the order suggests that the words “race, color, or national origin” may be interpreted to include Jewishness. That doesn’t deviate much from the Obama administration’s position on the topic.

But it’s a position that isn’t necessarily obvious. Some Jews may think of Jewishness only as a religion, not a race or a national origin.

Calling Jews a “race” has bad historical overtones. Although it was common in the 19th and early 20th centuries, Jews fought to abandon the classification. And the brutal reality of Nazi anti-Semitism, expressed in the Nuremberg “racial laws” (themselves modeled on U.S. segregation laws aimed at African-Americans), contributed to the abandonment of the idea of Jews as a race.

As for national origin, some Jews might bridle at the idea that there is a Jewish nation. Understood in context, however, it actually might not be unreasonable to treat Jewishness as a form of national origin.

“National origin” in American parlance often refers to ethnicity, not association with a specific nation-state. If Title VI covers discrimination against, say Armenian-Americans whose families don’t come from the country of Armenia but from what is today Turkey or Lebanon, it could plausibly also cover Jewish-Americans. To say that Jewishness is a “national origin” doesn’t necessarily imply that all Jews come from one place.

The executive order then goes on to direct the Department of Education to “consider” a specific “working” definition of anti-Semitism, one already used by the State Department and originally formulated by the International Holocaust Remembrance Alliance, an international organization with 31 member states including the U.S. The IHRA definition also sounds reasonable, if a little vague. It says that:

Anti-Semitism 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.

Applied to U.S. campuses, this definition on its own would likely not change anything.

But here’s where things get complicated. The IHRA definition comes with some “examples” of anti-Semitism which the executive order appears to incorporate by reference. One example of anti-Semitism is given as: “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.”

This is a controversial example of anti-Semitism, to say the least. Whether a certain group of people has a right to create their own nation-state is inherently always subject to argument and debate. Some critics of Zionism deny that Jews have a right to self-determination in the form of a state in Israel. Some Zionists have argued that Palestinians don’t have the right to form their own nation-state. Both may be wrong; or both may be right. But it isn’t necessarily an act of discrimination to make either argument.

Similarly, criticizing Israel as “a racist endeavor” (because, say, of the right of return that Israeli law grants Jews) isn’t automatically discrimination. It may be a form of political disagreement or critique — the kind protected by the First Amendment.

If the Department of Education were to pressure universities to punish or prohibit speech that denies a Jewish right to a nation state or calls Israel racist, that would violate the First Amendment. Political speech isn’t the same thing as discriminatory conduct.

The executive order does say that the First Amendment must be respected. That would mean ignoring this example.

Unless the department announces that in practice it will ignore the examples and just uses the IHRA definition without them, there is a good chance that the executive order will chill the speech of student groups critical of Israel. Indeed, it seems possible that one aim of the order is to do just that, namely to intimidate such groups on college campuses with the threat that their criticisms of Israel will get them sanctioned for anti-Semitism.

The upshot is that if implemented with its “examples,” the executive order could well lead to policy that unconstitutionally abridges free expression.

Before the guidance in the order can be implemented, the Department of Education will have to explain its decision to apply it. That will no doubt lead to a court challenge, which could actually reject the example part of the interpretation of Title VI as unreasonable even without deciding it is unconstitutional.

But the Trump administration almost certainly doesn’t mind. Trump has shown before that he is happy to issue executive orders that get blocked in court.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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