President Trump has issued an executive order on the enforcement of Title VI relative to anti-Semitic acts. OK, but what is Title VI?
Title VI “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.”
In a bit more detail : “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be to discrimination under any program or activity receiving Federal financial assistance.”
The Act clearly would find a violation if an entity that received federal financial aid–a college, say–were to overtly discriminate on the basis of race in, say, admissions. That’s the idea anyway.
But the “denied the benefits of” language casts a wide net and so Title VI can also apply to acts undertaken by members of the entity that would have the effect of “denying benefits”. Overt harassment on the basis of race, color or national origin that rose to the level of creating a hostile environment might constitute a violation.
The Act does not include “religion” in its scope. In the past the omission of religion was handled in a fashion that attempted to square itself with the actual language of the law. Thus in a 2010 letter Assistant Attorney General Thomas Perez (yes, the current DNC head) quoted with approval an earlier 2004 DOJ letter on the subject:
Groups that face discrimination on the basis of shared ethnic characteristics may not be denied the protection ofour civil rights laws on the ground that they also share a common faith. Similarly, the existence offacts indicative ofreligious discrimination does not divest OCR ofjurisdiction to investigate and remedy allegations ofrace or ethnic discrimination. OCR will exercise its jurisdiction to enforce the Title VI prohibition against national origin discrimination, regardless of whether the groups targeted for discrimination also exhibit religious characteristics.
And then Perez goes on to conclude:
We agree with that analysis. Although Title VI does not prohibit discrimination on the basis of religion, discrimination against Jews, Muslims, Sikhs, and members of other religious groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.
Restraint! Who knew?
Now comes Trump. What does his new Order do and how does it square itself with the law?
Many were saying that Trump defined Judaism as a nationality in order to fit anti-Semitic acts into the scope of Title VI. But he appears not to have done that. Instead he seems to be making up law in a subtler way.
From the Order:
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. Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.
It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.
Got that? It starts from the same place as Perez:
Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.
But then moves to a wonderful non sequitur:
The executive branch will enforce Title VI against anti-Semitic acts as vigorously as “all other” forms prohibited by the law.
“All other” is a curious formulation. The language seems to suggest that anti-Semitic acts are a class of prohibited acts, along with “others”. But that is not the case. Trump has made new law when even the Democrats were careful to attend to the statute’s clear meaning.
This invention of law where it previously did not exist is not the only problem with the order. Colleges are notorious for ignoring free speech considerations and this will just give them one more tool to do so.
Yes, the Order includes this language:
In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment.
But that is a thin reed considering the violations that routinely take place that no one has yet reined in. And keep in mind, too, that First Amendment applies only to public institutions. Private colleges are not subject to the First Amendment and here they are invited to curb as they wish.
That’s my narrow-minded formal objection. But that is not all of it.
Further from the Order:
In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments and agencies (agencies) charged with enforcing Title VI shall consider the following:
(i) the non-legally binding working definition of anti-Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. 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”; and (ii) the “Contemporary Examples of Anti-Semitism” identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent.
Those working definitions include the following:
Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
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.
So let’s review how far we have come.
We start with a law that says that institutions which receive federal funding should not discriminate on the basis of race, color or national origin.
We expand that to include not only direct acts on the part of the entity receiving the funds (e.g., admissions) but the actions of members of the entity, to the extent that they result in a hostile work environment that would deny some the benefits of the program.
We expand that to potentially include speech, whether ostensibly protected at public entities or not protected at private ones.
We expand the meaning of the law so that anti-Semitism is its own new category, one not moored in the language of nation found in the statute.
We set a very specific compliance target, one that is easy to run afoul of.
So what will happen now when a campus group calls for BDS sanctions? And are there no instances in the world where an individual might reasonably be criticized for dual loyalty? Is criticism of Jonathan Pollard to be considered anti-Semitic? Can a private college be denied federal assistance if a student criticizes Pollard’s spying as an example of dual loyalty in a letter to the campus newspaper, and the administration does not shut the paper down?
As FIRE points out:
The order directs federal agencies charged with enforcing Title VI to “consider” the IHRA definition of anti-Semitism and its accompanying examples, both of which may apply to core political speech protected by the First Amendment. While the order is couched in language intended to paper over the readily evident threat to expressive rights, its ambiguous directive and fundamental reliance on the IHRA definition and its examples will cause institutions to investigate and censor protected speech on their campuses. Having spent 20 years defending speakers from across the political spectrum, FIRE knows all too well that colleges and universities will rush to punish student and faculty speakers in an attempt to avoid federal investigation and enforcement.