President Donald Trump signed an executive order last week to combat campus anti-Semitism. While well-intentioned, the order could raise free speech problems, depending on its implementation. Conservatives who have denounced the campus Left’s suppression of alleged hate speech should be concerned about the precedent that the order may set.
Trump’s directive addresses a lacuna in antidiscrimination law. Title VI of the Civil Rights Act of 1964 bans discrimination on the basis of race, color, and national origin in institutions receiving federal funding, including colleges and universities. Judaism—and religion in general—is not included as a protected category. The best solution to that discrepancy would be for Congress to amend the statute to expand the protected categories. Instead, the Trump order extends Title VI protections to Jews through a murky set of non sequiturs, conflating race, color, or national origin with Jewish religious practice.
“While Title VI does not cover discrimination based on religion,” reads Trump’s order, “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.” This reasoning is opaque.
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, which accused the administration of using an anti-Semitic trope. “It feels dangerous,” Rabbi Hara Person, chief executive of the Central Conference of American Rabbis, told the Times. “I’ve heard people say this feels like the first step toward us wearing yellow stars.” This furor overlooked the fact that the George W. Bush and Barack Obama administrations had engaged in similar interpretive gambits in order to extend Title VI protections to Jews, though they had done so through guidance letters and technical assistance rather than a more formal executive order.
Once the order was released, the protest over the national origin issue mostly died down. Had the directive confined itself to reiterating the 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: “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.” 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.”
In 2017, Trump Education secretary Betsy DeVos declined to adopt the IHRA definition of anti-Semitism when asked to do so by Congressman Brad Sherman. As reported at the time by Eugene Volokh in Reason, DeVos argued that inquiries into discriminatory intent are fact-specific, and that the expression of racism and discrimination can change over time. The lead author of the antecedent to the IHRA’s definition of anti-Semitism also opposed a 2016 bill in Congress that would have required the Education Department to consider the IHRA definition in monitoring campuses. That definition was developed for the purpose of collecting data on anti-Semitic incidents in Europe, not for campus enforcement, argued Kenneth Stern, the director of the Bard Center for the Study of Hate. Putting that definition into enforceable law creates a “speech code for schools and colleges,” Stern wrote in the New York Times.
The examples of anti-Semitism provided in the IHRA may seem self-evidently odious. Nevertheless, there is considerable risk in the government declaring that certain concepts and language are per se discriminatory and that they constitute part of the predicate for legal action. Consider the guidelines disseminated by the University of California for identifying microaggressions. The disfavored statements include: “America is the land of opportunity,” “I believe the most qualified person should get the job,” and “There is only one race, the human race.” It is not hard to imagine an Elizabeth Warren or Joe Biden administration ordering government agencies to monitor such statements in enforcing Title VI, while also supplementing them with equally dangerous ideas such as “blue lives matter” or “all lives matter.”
And while it may seem patently discriminatory to claim that Israel is a racist endeavor, the right of self-determination is not always self-evident. As Eugene Volokh pointed out in Reason, one can reasonably dispute whether the Basques, Kurds, or Catalonians, say, possess such a right. It is not up to the government to decide which claims of self-determination are beyond questioning in any possible rhetorical context.
The defenders of Trump’s executive order would argue that it does not penalize speech per se but only sets out which speech may be used to determine whether someone had discriminatory intent in harassing another person. Uttering the disfavored concepts would not trigger Title VI liability absent an accompanying action, the order’s defenders would argue; the IHRA definitions and examples simply help determine whether specific conduct constitutes actionable discrimination. Moreover, the Trump directive contains the usual disclaimer that federal agencies shall not infringe on the First Amendment.
The Foundation for Individual Rights in Education rejects that defense. FIRE warned of the order’s likely effect on campus authorities in a press release: “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.”
The order’s precedential value is even more worrisome. We may trust the Trump administration to keep the two inquiries—into speech and conduct—separate. The question is not whether the government today will correctly identify speech that shows discriminatory intent and limit itself to that inquiry alone. The question is whether government can be trusted to make such calls indefinitely into the future. The college administrators, students, and faculty who today declare any challenge to academic orthodoxies racist will not always stay cabined on campus. Some will go on to wield government power. There is no reason to assume that as federal politicians and regulators they would abandon their anti-free speech instincts if handed a ready precedent with which to continue their crusade against America’s alleged fascist power structure.
Heather Mac Donald is the Thomas W. Smith Fellow at the Manhattan Institute, a contributing editor of City Journal, and the author of the bestseller The Diversity Delusion: How Race and Gender Pandering Corrupt the University and Undermine Our Culture.
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