President Donald Trump signed an executive order on Dec. 11 to combat campus anti-Semitism. While well-intentioned, the order could raise free speech problems, depending on its implementation. Anyone who worries about the campus left’s suppression of alleged hate speech should also be concerned about the precedent that the order may set.
Trump’s directive addresses a lacuna in anti-discrimination law. Title VI of the Civil Rights Act of 1964 covers discrimination on the basis of race, color, and national origin, not Judaism or religion in general. The Trump order extends Title VI protections to Jews through some fancy rhetorical footwork that in essence conflates race, color, or national origin with Jewish religious practice.
Before the order was published, the New York Times had reported that the Trump administration had defined Jews as representing a “national origin.” This claim set off a firestorm of protest among some Jewish advocacy groups, but that protest has since mostly died down. Had the directive confined itself to affirming the long-standing executive branch position that Title VI extends to discrimination against Jews, there would have been little cause for First Amendment concern. But the order goes on to direct the federal agencies that enforce Title VI to consider the definition of anti-Semitism as adopted by the International Holocaust Remembrance Alliance (IHRA) in 2016. That definition states in part: “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” (emphasis added). The Trump order also directs federal agencies to consider the examples of anti-Semitism provided by the IHRA as evidence of discriminatory intent. Those examples include: “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”; “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation”; and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”
Heather Mac Donald is the Thomas W. Smith fellow at the Manhattan Institute, contributing editor at City Journal, and the author of the bestselling War on Cops and The Diversity Delusion. This piece was adapted from City Journal. Follow her on Twitter here.
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