Why we should applaud Trump’s executive order on anti-Semitism
President Trump’s new executive order codifies longstanding Department of Education Office of Civil Rights (OCR) policy that, for the purposes of Title VI discrimination claims, Jewish students are protected against anti-Semitism. It also says that when evaluating these claims, the department should consider the International Holocaust Remembrance Alliance’s (IHRA’s) definition of anti-Semitism. The IHRA definition is widely accepted, and long has been used by our federal government.
Critics claim that the definition is too broad and that the president’s order is an attack on free speech. These critics are wrong, for five reasons:
First, the order does not, in any way, restrict or prohibit speech. Every person is free to say what they want, however abhorrent, about Jews and/or the Jewish state. As the Supreme Court in Tinker v. Des Moines explained, “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Hate speech is protected, obviously, but that does not mean that we cannot call it what it is: hateful. When that speech rises to the level of discriminatory harassment, with or without accompanying acts, then and only then is regulation appropriate. Speech codes are constitutionally problematic; regulating discriminatory conduct is not.
Second, for there to be a violation of free speech, the order would have to be about private speech, not government speech. All this order does is explain how the government defines anti-Semitism. The Supreme Court, in Walker v. Texas Division, Sons of Confederate Veterans, Inc. held that “[w]hen government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” Without this exemption, the government “would [simply] not work.” The order merely expresses the government’s position on the issue, explains how it will define anti-Semitism as it relates to harassment (not speech), and notifies the public.
Third, for those who would raise the specter of viewpoint discrimination, the answer once again is right there in Walker: “We have … refused [t]o hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals, because the program in advancing those goals necessarily discourages alternative goals.” The government is free to advance its own permissible goals, and doing so is not viewpoint discrimination.
Fourth, the order does not chill speech, because there is no threat that the government will ever investigate or bar permissible speech of any kind. The order only addresses harassment, and speech that rises to the level of harassment is already impermissible.
Fifth, the order does not create any gray area of overly broad speech/act non-distinction. It uses the longstanding definition of harassing conduct in Title XI and Title VI cases, a definition that has been upheld numerous times in a variety of cases and contexts. To the extent that speech is at all implicated, it is only to clarify what is considered discriminatory towards Jewish people within those contexts in which the law has declared discrimination unacceptable. The order affects conduct that is so “severe, pervasive or persistent so as to interfere with or limit the ability of the victim to participate in or benefit from an educational service, activity, opportunity or privilege.”
The fact is that anti-Semitism remains a disturbing problem in American society. Data show that Jews consistently are the most likely of all religious groups to be victimized by incidents of hate, and that such incidents are increasing at an alarming rate. On campuses around the country, anti-Semitism has become entrenched and systemic; recent studies show that the number of Jewish students experiencing anti-Semitism on campuses across the United States had spiked to nearly 75 percent.
History tells us that anti-Semitism is often just a form of gateway racism, the proverbial “canary in the coal mine of intolerance.” As Ahmed Shaheed, the United Nations special rapporteur on freedom of religion or belief, noted in his recent Human Rights Council report on anti-Semitism: “Anti-Semitism, if left unchecked by governments, poses risks not only to Jews, but also to members of other minority communities. Antis-Semitism is toxic to democracy and mutual respect of citizens and threatens all societies in which it goes unchallenged.”
Until now, the absence of a legal definition of anti-Semitism has been an Achilles’ heel for those who expect colleges and universities to take a stronger stand against campus anti-Semitism. Valid monitoring, informed analysis and investigation, and effective policy-making all require uniform definitions. While there can be no exhaustive definition of anti-Semitism, because it can take many forms, the IHRA definition has been an essential tool for identifying contemporary manifestations of anti-Semitism.
While some object to the idea that the Jewish people fall under Title VI’s rubric of race, color or national origin, such objections are misplaced. First, the OCR has placed Jews, Muslims and other religious groups under Title VI’s jurisdiction since 2004. Second, as any proponent of intersectionality theory should agree, Jewish people can see themselves as a lot of things — a race, nation, religion, ethnicity, culture, etc. Clarifying that for purposes of anti-discrimination provisions is entirely not problematic.
Jewish students need protection; at this writing, more than a half-dozen states are considering similar legislation. As one of the primary drafters of these state bills, I applaud the Trump administration for demonstrating leadership and sending a message that intolerance is unacceptable.
Government officials and institutions have a responsibility to protect citizens from acts of hate and bigotry motivated by discriminatory animus, including anti-Semitism, and must be given the tools to do so. President Trump’s executive order is one such tool, and as such it should be celebrated.
Mark Goldfeder is a law professor and special counsel at the American Center for Law and Justice, a nonprofit organization dedicated to the defense of constitutional liberties, where he specializes in the First Amendment and anti-Semitism. He serves on President Trump’s personal legal team in matters unrelated to anti-Semitism.