Yair Rosenberg: Trump's Redefinition of Jewish Identity That Wasn't
Regular readers of this newsletter know that I have not been sparing in my criticism of President Donald Trump, or his conduct towards Jews. I’ve spent years writing about the anti-Semitism within his ideological circle and evident from his own rhetoric and conduct. These facts remain real concerns. But the danger of a powerful narrative is that it can lead us to shoehorn events into it that don’t actually belong.
That’s what happened yesterday when it was announced that Trump would be signing an executive order to combat anti-Semitism on university campuses. Critics immediately seized on a New York Times report that claimed that the order—whose text it did not cite—would “define Judaism as a nationality, not just a religion.” In short order, “Judaism” began trending on Twitter for all the wrong reasons. Countless celebrities and commentators claimed that this was an attempt to define Jews as un-American and suggested it was the first step towards deportation or even a Holocaust.
My goal here is not to shame people who were expressing their legitimate heartfelt concerns, which is why I’m not embedding any of those tweets. I just want to explain what really happened, what the executive order actually says, and how we can avoid being taken in by such panics in the future.
Because as it turns out, the executive order does not redefine Judaism as a nationality. The full text, which was released today, simply echoes Obama era doctrine for protecting Jews under Title VI of the Civil Rights Act. Because Title VI does not mention discrimination based on religion, it could be interpreted to exclude protection for religious groups like Sikhs, Muslims, Jews, and others. To close this loophole, the Obama administration’s assistant attorney general for civil rights Tom Perez—now the head of the Democratic National Committee—crafted a policy based on prior precedent that stated that these religious groups were nonetheless covered under Title VI’s provisions, despite the language of the act. Basically, the idea was that although these groups might not define themselves as a “nation” or “race,” because racists define them that way and attack them as such, they are protected. A loophole of sorts to get around a loophole. Slate legal writer Mark Joseph Stern has an excellent detailed breakdown of this policy and its history.
Explaining Trump’s Executive Order on Anti-Semitism
President Trump is expected to sign an executive order today aimed at cracking down on anti-Semitism on college campuses. The order will define Jewish people as a nation or race and thus allow the federal government to withhold money from universities that ignore Jew-hatred.
For those interested in a deeper understanding of the plan, the original idea behind it was laid out in the September 2010 issue of COMMENTARY by Kenneth L. Marcus, who now serves as the assistant secretary of civil rights in the Trump Education Department. Marcus’s essay, “A Blind Eye to Campus Anti-Semitism?” explains:
The lack of a coherent legal conception of Jewish identity has rendered the Office for Civil Rights (henceforth, OCR) unable to cope with a resurgence of anti–Semitic incidents on American college campuses, of which the Irvine situation is enragingly emblematic. The problem stems from the fact that federal agents have jurisdiction under Title VI of the Civil Rights Act over race and national-origin discrimination—but not over religion. And because they have been unable to determine whether Jewish Americans constitute a race or a national-origin group, they found themselves unable to address the anti-Semitism at UC-Irvine. This confusion has led to enforcement paralysis as well as explosive confrontations and recriminations within the agency.