WASHINGTON (JTA) — 'Tis the season for so much news!
In addition to another deadly attack on U.S. Jews, a much anticipated British election and the announcement that Israel is going to have a third election in less than a year, President Trump issued an executive order on anti-Semitism.
Let's break down that last one.
Defining Jews, defining anti-Semitism
President Donald Trump issued an executive order on Wednesday — in time for his annual Hanukkah parties — directing "robust" enforcement of existing civil rights protections for Jews on campus. Trump cites Title VI of the 1964 Civil Rights Act, which prohibits federal funding for discriminatory programs. He says "students, in particular, continue to face anti-Semitic harassment in schools and on university and college campuses."
The order represents a significant change in policy, having to do with how one defines anti-Semitism and how anti-Israel activism plays a role.
But that change isn't what initially dominated the news cycle: The order was leaked Tuesday to The New York Times, which mangled it and said it would define Jews as a nationality. (David Bernstein at Reason rounds up where The Times got its reporting wrong.)
The order does not define Jews in any way. Rather it says that attackers target Jews because they perceive them to be a race or having a shared national identity.
"While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices," it says.
Why wouldn't a religion alone be subject to protections? Because of the thorny establishment clause issues that could come up — a campus that allows proselytizing, for instance, could conceivably be targeted for sanctions.
"On the basis of" does not mean the perception of Jews as a race matches reality. The Obama administration's Education Department did a better job of making this clear in 2010 when it covered similar territory in a letter to universities.
"While Title VI does not cover discrimination based solely on religion, groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith," the letter said.
Still, read closely, it is clear that Trump's executive order did not advance a new definition of "Jew."
It's the social media age when you have to push out your opinion before you get the facts, so there was an explosion of Jewish anxiety on Twitter about what the designation of Jews as a "nationality" would mean.
While the initial reports misread the executive order, it still means a significant change for U.S. policy. Unlike the 2010 Obama administration directive, the Trump order refers to an outside source for its definition of anti-Semitism: The one adopted in 2016 by the International Holocaust Remembrance Alliance.
The IHRA definition includes certain forms of anti-Israel activity as anti-Semitism and also makes clear that criticism of Israel is not in and of itself anti-Semitic. Trump's order alludes to these, instructing officials to consult the section of the IHRA definition that includes them. "Contemporary Examples of Anti-Semitism," "to the extent that any examples might be useful as evidence of discriminatory intent."
So will it change anything? Almost as soon as Trump signed the order, Rep. Denver Riggleman, a Republican from a district in Virginia covering Charlottesville, wrote to Education Secretary Betsy DeVos asking her to review federal funding for Georgetown University's Center for Contemporary Arab Studies.
Riggleman, who ran a hard-fought race against Leslie Cockburn, whom Republicans had accused of being anti-Semitic for a book she wrote in the 1990s questioning the U.S.-Israel relationship, does not directly cite Trump's order. But it's not a letter that would have made sense before the Trump directive. Riggleman refers to Title VI, and nearly all of his complaints in the five-page letter have to do with anti-Israel activity.
"To remedy this unacceptable situation, I urge the Department of Education to undertake a thorough review of CCAS's activities to determine how Title VI funds are spent on such undertakings, and whether or not they are in accordance with statutory mandates," he wrote.
Were DeVos to take up Riggleman's request, the Trump administration would likely face First Amendment challenges: The offenses Riggleman cites, based on research by the conservative Middle East Forum, seem entirely based on Georgetown staffers' speech outside the confines of the classroom, signing petitions and letters. It's not clear how that would create a hostile environment inside the classroom. The same goes for the presence on the center's board of several officials of Persian Gulf states that are close U.S. allies. In one case, Riggleman slams a center official for defending Hanan Ashrawi, a Palestinian Authority official. The Trump administration's former chief peace negotiator, Jason Greenblatt, has chided Ashrawi for not speaking with U.S. officials, something a Georgetown lawyer would likely raise.
As weak as Riggleman's letter may be, it underscores how Trump's executive order may be used going forward and the vexing issues it will inevitably raise. Critics of using the IHRA definition as law (rather than simply as a tool to understand anti-Semitism) cite one of its examples of anti-Semitism involving Israel as too vague to meet any legal standard: "Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation."
[This is an excerpt. To read the rest of the article, click here.]