What are Jews? Members of a religious group? A race or an ethnicity? A nation? Some mixture of them all, or something else entirely?
As a debate among the Jews, this question may be academically interesting or, depending on your point of view, incredibly tedious. But as a legal question, it matters a great deal. American antidiscrimination law covers certain protected categories. Title VI of the Civil Rights Act prohibits discrimination in programs receiving federal support on the basis of "race, color, or national origin," but—unlike many other antidiscrimination provisions—not religion.
So if Jews are deemed "just" a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity.
But the federal government—starting in the George W. Bush administration, and more formally during the Obama administration—began to settle on a more tailored answer. Title VI does not cover religion-based discrimination. But when discrimination against Jews—or Muslims or Sikhs, for that matter—is based on "the group's actual or perceived ancestry or ethnic characteristics," or "actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity," the government found, then that discrimination falls under Title VI's purview. Anti-Semitic discrimination is unlawful under Title VI to the extent that it targets Jews as a racial or national group.
This seemed appropriate. After all, anti-Semites very often envision and target Jews as a racial or national group. Secular Jews are by no means immunized from anti-Semitic attacks. And Jews have vigorously resisted the Protestant-oriented insistence that Jewishness is reducible to a religious identity. An antidiscrimination regime that is blind to this aspect of Jewish identity and to this manifestation of anti-Semitic hatred would be wholly unequipped to protect Jews.
This week, the Trump administration announced a new executive order that, more or less, entrenches the rule already adopted by the Obama and Bush administrations. It also breaks new ground by officially instructing all government agencies tasked with enforcing antidiscrimination law to "consider" the nonbinding International Holocaust Remembrance Alliance (IHRA) working definition of anti-Semitism, including its illustrative examples.
The announcement set off a firestorm of criticism in the Jewish community, most of which focused on attacking the idea that Jews could be included as a "nationality" (thus receiving national-origin-based protections). These critics perceived the order as implicitly denying the Americanness of American Jews: What would it mean for the federal government—led by Donald Trump, no less—to separate Jews into their own nation?
But the emphatic denials by some Jewish commentators that Jews should ever be conceived as a national grouping risk unraveling the entire basis for affording Jews Title VI protection in the first place—not just under the Trump administration's view, but in the view of every recent administration. Only some notion of legally cognizable Jewish nationhood (or race) brings Jews under Title VI's ambit. And if any use of national-origin-based protections implies that the covered group is not truly "American," then huge swaths of antidiscrimination law should be repealed—at great danger to the increasing number of Americans who still face discrimination based on their national ancestry.
The furious responses from many Jews reflected, in part, simmering anger at a particular form of anti-Semitism characteristic of the Trump administration and elements of the broader conservative movement. President Trump has regularly and repeatedly suggested that America is not the country of American Jews. Israel is "your country," he says, and Netanyahu is "your prime minister." The impeachment investigation has likewise seen several prominent Jewish figures have not just their patriotism but their very loyalty to America questioned—most notably Alexander Vindman. Just a few days ago, Trump proffered a cavalcade of anti-Semitic stereotypes in a speech before the Israeli American Council, lambasting American Jews for their insufficient love of both him and Israel, calling Jews "not nice people" who would nonetheless be compelled to vote Republican in order to protect their wealth.
With nerves already rubbed raw, a news report about an executive order that even hinted at dividing "Jewish" from "American" was the last straw. It was perceived as a doubling-down, another way of telling American Jews, "This is not your country."
In part, the frenzied reaction can be laid at the feet of The New York Times—its initial article badly misrepresented the content of the prospective executive order and the context of Title VI. And in part, the hostile reaction of the Jewish public is reflective of a separate conversation occurring in the American Jewish community. Many Jews have grown frustrated at what they perceive as weak or uneven policing of Trumpist anti-Semitism—anti-Semitism that frequently seems to question whether Jews are patriotic or loyal Americans—even as most Jews have firmly laid the blame for rising anti-Semitism at the Republican Party's doorstep. That they had just witnessed yet another round of tepid "critiques" of Trump's anti-Semitic remarks before the IAC had Jews particularly attuned to this problem.
So that's part of the story, and in some ways the literal content of the executive order is irrelevant to it. But some deeper and more substantive anxieties are at work here.
One is the very old worry that promoting any sort of "hyphenated identity" ultimately gives succor to racists and bigots of all stripes. To be accepted as American, Jews and other minority groups must simply be American—no ifs, ands, or buts. The fear is that the executive order, insofar as it encodes Jewish difference into American law, may enable anti-Semitic hatred.
It is not that this risk is illusory. It is true, as Ian F. Haney Lopez wrote years ago, that "to acknowledge race is to leave open the possibility—indeed the certainty—that this acknowledgment will at times be turned to racism's service," and that applies with equal force to the acknowledgment that Jews view themselves and are viewed by others as having a distinct national origin. But Jews are being baited into taking a very dangerous position here—insisting that we must withdraw from the protection of antidiscrimination law, because it might obliquely confirm the anti-Semite's suspicion that the Jew is different.
This outlook is a position Jews—and progressives generally—should be very wary of endorsing. It is the kissing cousin of conservative color blindness, which insists that any and all public usages of race—even those that are tailored to undermining discrimination and ingrained inequality—actually function solely to entrench racism. It is the illusory promise of assimilation, the vain belief that if we duck our heads low enough, anti-Semites will forget who we are. It is a viewpoint that ultimately threatens the entire project of antidiscrimination law—a project that cannot function without some notion of who it is protecting and why.
Antidiscrimination law has to name categories, and in doing so it acknowledges certain identities as demarcating social differences. Some on the right have sought to use this unavoidable feature of antidiscrimination law as means of declaring war on the entire apparatus—anti-racism rendered as racism. But acknowledging diverse identities does not justify inequality or subordination, and recognizing American diversity need not entail denigrating American minorities.
Right now, amid the resurgence of neo-Nazis and the rise of the alt-right, serious antidiscrimination protections are particularly necessary. The response of the law cannot be to carve out an exemption for anti-Semitic discrimination so long as it takes on a racialized or nationalist character. Indeed, several groups—perhaps most notably Mexican Americans—have seen their Americanness challenged in an even more direct and vicious fashion by the Trump administration than have the Jews. Yet to respond to that challenge by withdrawing the national-origin-based protections Mexican Americans are entitled to under the law, on the spurious hope that doing so would dissipate the racist belief that they aren't real Americans, would be a catastrophically shortsighted response. Heightened discriminatory hatred requires more robust antidiscrimination law, not less.
But another concern is at play in the response to the executive order: the worry that the Trump administration will take real fears of anti-Semitism and weaponize them by leveling bad-faith allegations to silence or suppress speech—particularly speech centered on Israel. Jews may need more robust antidiscrimination protections, but the Trump administration can hardly be trusted to implement them.
This issue largely concerns the more legitimately controversial aspect of the executive order: its misappropriation of the IHRA definition of anti-Semitism for use in assigning civil liability. The definition was not designed to fulfill this role, and indeed its own drafters have been vocal in opposing its use for this purpose.
While the order does not explicitly mention either Israel or the Boycott, Divestment, Sanctions (BDS) movement, there is again ample reason for concern here. Trump's repeated indulgences in anti-Semitic themes—from dual-loyalty charges to Soros-based conspiracy mongering—give lie to any serious belief that his administration can be trusted to keep Jews safe. That the same administration that has cried about "free speech on campus" when it comes to protecting the rights of racist provocateurs like Milo Yiannopoulos is suddenly a lot more invested in student safety when it might help suppress pro-Palestinian protests provokes fears that it primarily sees the charge of anti-Semitism as a tool to bludgeon wayward Democrats.
There is one mystery in all this that I haven't wrapped my head around: Whether or not Jewish is a national identity, Israeli obviously is. So if the goal is to target BDS, to the extent that BDS activism obstructs Israeli or Israeli American students' equal access to educational opportunities in the U.S. on account of their national origin, wouldn't that invite a perfectly straightforward Title VI application without the need to bank-shot it through Jews-as-a-nation?
At any event, neither fights over free speech nor the Israeli-Palestinian conflict tend to bring out anyone's better angels. Hypocrisy abounds. Many averred free-speech warriors have been quite willing to sanction explicit and de jure censorship on campus aimed at suppressing pro-Palestinian speech; many of those indulging in naked harassment or discrimination of Jewish students have learned to yell "Free speech!" as if it provides a catchall dispensation—especially if they drape their conduct in the cloak of "criticism of Israel."
Ideally, the uncontroversial truth would be that anti-Israel conduct is neither necessarily anti-Semitic nor necessarily not anti-Semitic—it depends on the details of the case. To declare all anti-Israel sentiment intrinsically anti-Semitic would be as absurd as to insist that none of it is, or to proclaim that otherwise anti-Semitic conduct is cleansed of its character because it styles itself as "anti-Israel."
It is also the case that the First Amendment protects anti-Semitic speech—whether in an "anti-Israel" guise or not. In a sense, the IHRA definition shouldn't matter to the free-speech debate, because if we're talking about speech qua speech, both anti-Semitic speech and non-anti-Semitic speech are equally entitled to constitutional protection. "I hate Jews" is as protected as "I hate Zionists" is as protected as "I hate Dodgers fans."
The legal question is when conduct—anything from vandalizing a Hillel to assaulting a student to refusing to write a letter of recommendation—ought to be attributed to an anti-Semitic motive. If a man on campus assaults me on the street, he's a criminal. Is he an anti-Semitic criminal? If he takes a swing while yelling "I hate Dodgers fans," then he probably isn't. If he does it while yelling "I hate Jews," then he definitely is. What if he punches me while screaming "I hate Zionists"? This is the core of the dilemma. But resolving it doesn't change the fact that all three statements—were they simply uttered in the town square or written in a blog post—are equally protected speech.
The trouble with the IHRA definition is that, while it nominally respects these distinctions, it is far too flimsy to work as a tool of law enforcement. Originally designed for monitoring and data-collection purposes, the IHRA definition is a political document in the truest sense: vague to the point of incoherency, and riddled with so much imprecision and hedging that it could justify labeling anything or nothing anti-Semitic.
The definition itself sets a cloudy tone right at the outset, stating that "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews." "A certain perception"—well, what perception is that? It "may" take the form of "hatred toward Jews"—what other forms "may" it take? Later, the document gives a set of contemporary "examples" of anti-Semitism—including things like dual-loyalty accusations or Holocaust denial—but clarifies that these examples only "could, taking into account the overall context," possibly be thought of as anti-Semitism—offering no guidance as to when they "could" or "could not" be deemed anti-Semitic. And while some of the examples seem to cover extreme forms of vitriolic criticism of Israel (such as comparing Israel to Nazi Germany), the definition confirms that "criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic."
If the IHRA were to be operationalized as a legal tool, at the very least it would require nuance, sensitivity, and care to put into practice. The Trump administration has not, to put it mildly, earned the benefit of the doubt in performing such a delicate task. It has no principled interest in academic freedom; it is still seeking to meddle in academic programming with an ill-conceived investigation into what it terms the "balance" of Middle Eastern–studies programming at Duke and the University of North Carolina—as if federal bureaucrats have any business micromanaging the curricular offerings of American universities.
Even if the IHRA guidelines do not on their face bar lawful and protected anti-Israel activity (and—for what it's worth—I don't think they do), they are written in language that is so broad and so vague that relying on them for use in legal-enforcement actions is almost guaranteed to have a chilling effect. If a student posts a graphic image of a Palestinian child killed by Israel Defense Forces fire, is that tantamount to invoking a blood libel? If a campus organization is primarily focused on Palestinian rights, does that demonstrate a double standard against Israel? The simple fear that the government might decide that it is or that it does is enough to produce a chilling effect, even if the new guidelines spark no new enforcement actions.
This is all good reason to follow the advice of the IHRA's own drafters and not enlist the IHRA definition for a task it cannot hope to fulfill. But qualms about the utility of the IHRA are only part of the picture. The bigger fear is that the Trump administration will abuse anti-Semitism claims to suppress free speech whether the IHRA definition sanctions it or not. On that score, the uncomfortable truth is this: Giving more robust antidiscrimination protections means giving Trump more robust tools he can abuse. Withdrawing those tools from the Trump administration to prevent their abuse means withdrawing those tools from even where they could be used to combat genuine anti-Semitism. Reducing the number of false positives means accepting more false negatives.
For Jews who are genuinely fearful of rising anti-Semitism but have felt burned by the way this administration has manipulated the concept for nakedly political and partisan ends, there is no easy resolution to this tension. The difficult challenge they now face is to communicate these concerns and express their anger in a way that doesn't risk inadvertently overthrowing decades of hard-won civil-rights progress.
Jews have every reason to be suspicious of the way in which the Trump administration will use a putative fight against anti-Semitism to squelch liberal speech on campus and drive further wedges between Jews and other minority groups (who certainly aren't the beneficiaries of the Trump administration's sudden affinity for academic safe spaces). But it's necessary to contest such abuses without adopting the uncompromising position that any form of anti-Semitic conduct, so long as it styles itself as "anti-Israel" in character, is outside the ambit of antidiscrimination law. Jewish students should not have to accept being barred from academic spaces or excluded from academic opportunities because of the assumption that their Jewishness converts them into agents of the Israeli government. Nor should Jews be forced to issue humiliating disclaimers disavowing the conduct of the Israeli government every time they want to act publicly under a Jewish banner.
At root, the problem is that the Trump administration cannot be trusted to judge what is anti-Semitic and what is not. But the fight against anti-Semitism requires judgment—there is no way to avoid it. Jews can be mistrustful of what the Trump administration has in store for us, or suspect that Trump does not have our best interests at heart when he purports to fight anti-Semitism for us. But we must nonetheless preserve a real and serious corpus of law protecting Jews from anti-Semitic discrimination, even if the Trump administration tries to use these tools for its own illiberal agenda.
David Schraub is a lecturer at Berkeley Law School and Senior Research Fellow at the California Constitution Center.