The Civil Rights Act and the Jews

Last week, on the same day as Jersey City, President Trump issued an executive order that brought American Jews under the umbrella of the Civil Rights Act of 1964. It came as a bit of a surprise—to me, at least, but I think also to most—that prejudice directed specifically at Jewish Americans wasn’t already covered, but now it turns out that the situation is more complicated than I had understood. Title VI of that act specifically grants the Department of Education the right to withhold federal funding from any university—or, indeed, from any school at all—that discriminates against applicants or students based on “race, color, or national origin.” Religion was specifically omitted, apparently for fear that doing so would have constituted an unconstitutional breach of the wall between church and state. At the time, I suppose this seemed reasonable: at the height of the Civil Rights movement, the focus was almost solely on the eradication of institutional prejudice directed against black Americans. Looking back after all these years, though, that decision seems understandable without feeling fully cogent—and begs the obvious question why citizens who are being discriminated against because of any aspect of their identity at all should not be protected just as vigorously as people facing specifically racial discrimination?

And so, on the face of it, the President’s Executive Order of last week simply righted an accidental wrong and applied the protections inherent in Title VI of the Civil Rights Act to Jewish Americans. After all, it hardly seems debatable that Jewish Americans constitute an ethnically distinct minority within the larger American citizenry, thus falling precisely into the category of discriminated-against individuals the Act was intended to protect in the first place. Many have reacted warily to the President’s Executive Order, some even with hostility. But opposition to the Executive Order rooted in the sense that there is something offensive or derogatory about recognizing Jewish ethnicity as no less real a component in Jewishness than Judaism itself rings false to me. Just to the contrary, in fact, is the case: the reality is that the large majority of Jews on America’s college campuses who are facing open and, at least in some cases, virulent anti-Semitism understand their Jewishness in precisely that way: as ethnicity rather than as religion. As a rabbi, I can’t say that I applaud that aspect of reality. In fact, there are many ways in which I deplore it. And yet I also recognize it as the reality of our day and, as such, something entirely reasonable and rational for the federal government also to recognize as part of the status quo. Interestingly, the text of the Executive Order speaks directly to this detail when it says that “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.” That only seems rational to me.

Of great interest to me personally was the President’s specific reference to the definition of anti-Semitism developed and promulgated by the International Holocaust Remembrance Alliance, an intergovernmental organization headquarter in Berlin that brings together the resources of thirty-three different nations to promote Holocaust education and to combat anti-Semitism. And, in that context, of special interest is the connection the IHRA definition makes between anti-Zionism and anti-Semitism, including in its set of examples of anti-Semitic behavior “the targeting of the state of Israel, [specifically when] conceived as a Jewish collectivity,” as well as behavior and speech rooted in a basic denial of “the Jewish people their right to self-determination, e.g., by claiming that the existence of a state of Israel is a racist endeavor.” And also defined as anti-Semites are those who compare “contemporary Israeli policy to that of the Nazis.” That the simple truth that anti-Zionism—as opposed to opposition to some specific Israeli policy—is anti-Semitism is a truth we have long waited to hear accepted by people outside the Jewish community. So that too must be adjudicated as a positive development.

Of course, nothing regarding President Trump is ever that simple or cut-and-dried. The very fact that the President announced his Executive Order at a White House Pre-Hanukkah celebration featuring Pastor Robert Jeffress, a fundamentalist minister who has said publicly that he considers all Jews doomed to hellfire for their failure to embrace his own faith, only made the scene that much weirder and creepier, and only called the underlying motive behind the announcement more into reasonable question. And, indeed, the blogosphere is awash with dark theorizing regarding the “real” motives that led to the President’s Executive Order. I’d like to consider them one by one.

1.      It was just a play for Jewish votes in 2020. I don’t find it at all unlikely that there is some truth to this. But I also don’t care. Jewish students are under attack on America’s campuses in a way that is truly unprecedented and any effort to make them more secure, more safe, and less open to overt acts of prejudice and anti-Semitism are welcome. So what if the President’s motives were sullied by the hope of personal gain? That has become a hallmark of the administration anyway, so why not be pleased that it led for once in a positive, useful direction? When a wealthy skinflint makes a huge donation to charity not because he cares about its work but solely because he wants the tax write-off, the charity still benefits.

2.      It was really meant to stifle anti-Israelism on American campuses. This was the argument of many. But the reality is that the anti-Israelism on our campuses today, often couched in support for the BDS movement or as support for the Palestinians, veers regularly and ominously into anti-Semitism. It seems ridiculous to argue that there simply is no way to express one’s displeasure with some Israeli policy without libeling or insulting the Jewish people. But even if that were to the case (which it surely isn’t), it would still be just and right to forbid those who speak out against such policies from using anti-Semitic tropes in their speech.

3.      It was a way of making the Civil Rights Act less potent by widening it to apply to even more people. I saw this line of thinking pursued on several websites, but I still can’t quite understand how forbidding bigotry directed at one group weakens the parallel restriction forbidding bigotry aimed at a different group. At any rate, it’s hard to imagine how broadening the Act’s base could make it weaker instead of stronger.

4.      It was a veiled attack on the concept of free speech itself. This, at least in the blogosphere, was the big one. And, as far as I can see, it’s the line of argumentation most favored by anti-Israel types who are afraid that their right to protest this or that policy of the State of Israel will now be compromised. But that is not how this anti-discrimination thing words: the laws that protect people from hateful, libelous speech delimit (and are supposed to delimit) the rights of the speaker, not the spoken-about party. In other words, if someone protesting the decision to relocate the American embassy in Israel to Jerusalem cannot find a way to express his or her displeasure without veering off into anti-Semitic tropes, then that has to be that person’s problem. And that too is as it should be.

5.      It was an attack on Christianity itself. This, I find particularly scary, rooted as it apparently is in the understanding that the right of campus-based ministers to preach anti-Semitic sermons should be protected by law. It is true—and more than true—that there are many passages in the New Testament that could reasonably be labelled as hostile to Judaism. The library of early Church features an entire sub-category called the Adversus Judaeos literature, which consists of sermons and entire books written to foment disrespect, in many cases verging on hatred, of Jews and Judaism. These are legitimately understood to constitute part of the literary heritage of ancient Christianity, but it is still reasonable to expect contemporary preachers to avoid preaching sermons that propose hatred of Jews as a reasonable spiritual stance. All religions, Judaism included, have as part of their literary or cultural heritage institutions, stances, and stories that are inconsonant with republican principles of modern democracies. The existence of these do not need to be denied. (Is lying about the past ever a good thing?) But to suppose that their existence should by itself constitute an override to the prohibition of hate-speech seems, to say the very least, illogical to me.

6.      It was just an attempt to deflect attention from the impeachment hearings. I suppose we can debate whether this is likely or unlikely, but the bottom line is that it didn’t work. Nor could it ever have worked. So I’m guessing this wasn’t a real factor.

The bottom line is that I am more than pleased that the protection of the federal government will now be extended to Jewish students on American campuses. As a mentioned two weeks ago, the list of schools that have witnessed serious acts of aggression against Jewish students includes some of the nation’s most revered institutions of higher learning. The ADL has determined that the level of on-campus violence directed against Jews has risen every single year annually since 2013. Protecting victims of prejudice or bigotry is precisely what I actually do think the federal government should be doing. With all respect to Jared Kushner’s op-ed piece published in the New York Times last week (click here), I am not at all sure that the President’s motives were pure. I could probably go so far as to say that it seems highly unlikely that he was motivated solely by the desire to right a historic wrong and thus only to do good. But whatever the “real” motive or combination of motives, the Executive Order of December 11 was a positive, helpful step forward for Jewish Americans of all ages and situations, but most of all for Jewish students on America’s campuses. Nor is this a shift I can imagine future presidents undoing on ideological grounds. Whether this will really make America’s campuses a safer, better place for Jewish students remains to be seen. But that this was a step in the right direction feels obvious to me.