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Executive Order on Jews Has Firm Legal Grounding

(New York Times) Prof. Daniel Hemel - President Trump signed an executive order instructing federal agencies to use Title VI of the Civil Rights Act - the law that bars federally funded programs from discriminating on the basis of "race, color, or national origin" - to combat anti-Semitism. His interpretation of Title VI as applying to anti-Semitism is neither new nor troubling. The characterization of anti-Semitism as a form of racial or national-origin discrimination has a secure place in American law. In 1982, after Shaare Tefila synagogue in Silver Spring, Md., was spray-painted with swastikas, Ku Klux Klan symbols and other anti-Semitic messages, the synagogue and several members responded by suing those who had vandalized their house of worship. The plaintiffs cited the Civil Rights Act, arguing that even though Jews are not a racially distinct group, the vandals viewed Jews as a distinct race and were motivated by racial animus. The case ultimately reached the Supreme Court, which voted unanimously in the synagogue's favor. Jewish groups cheered the ruling. The Shaare Tefila case teaches that placing a group within a racial category for purposes of civil rights protection does not require us to endorse the idea that the group is racially distinct. Anti-Semitism can be racism for legal purposes even though Jewishness cannot be reduced to racial terms. Jews do not fit neatly into categories of "race," "religion" and "national origin" that took their present shape millenniums after the Jewish people came into existence. The nuances of Jewish identity do not, however, shield Jews from attackers who see Jews as a nation apart. Jews can suffer national-origin discrimination regardless of whether Jewishness is a nationality. The Education Department under President George W. Bush recognized that anti-Semitism could constitute racial or national-origin discrimination within Title VI's ambit. The Justice Department under President Obama reaffirmed that view. President Trump's executive order is consistent with those interpretations. The writer is an assistant professor at the University of Chicago Law School and a visiting professor at Harvard Law School.
2019-12-13 00:00:00
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