President Donald Trump signed an executive order on Wednesday expanding his administration’s interpretation of race and national origin to include Judaism – a move that extends certain civil rights protections to Jews in education settings.
The move is part of the Trump administration’s broader efforts to combat what it considers anti-Israel and anti-Semitic movements on college campuses. But the order has ignited debate over federal funding, free speech and views about Israel, and prompted renewed questions about how Jewish people should be classified by the government.
What does the new executive order actually change?
The order concerns a section of the federal Civil Rights Act of 1964 requiring federally funded educational institutions not to discriminate based on national origin. Under this order, colleges and universities that support or tolerate anti-Israel movements – the most prominent being Boycott, Divestment and Sanctions (BDS) – could be under threat of having their funding withheld by the Department of Education.
While protections from racial, color and national origin discrimination are covered under Title VI of the Civil Rights Act, religious discrimination is not. In the past, the Education Department has nevertheless interpreted the law to protect students of any religion from discrimination based on shared ethnic, racial or national origin.
As a 2010 letter from the Justice Department to the Education Department’s civil rights office laid out, Title VI protects religious students when discrimination “is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than its members’ religious practice.”
The order would reinforce the inclusion of anti-Semitic conduct in this interpretation of national-origin-based discrimination for which students are afforded protection.
What prompted this move?
There has been an uptick of reported incidents of anti-Semitic harassment, vandalism or assault on college campuses in recent years. The Anti-Defamation League found that the number of anti-Semitic incidents on campuses in 2017 was 204, up 89% from the previous year. That number stayed relatively steady in 2018, at 201 incidents.
In addition to these incidents, college campuses have seen movements like BDS, which encourage international boycotts and sanctions against the state of Israel, emerge in the last decade.
The initial organizers of BDS, according to the movement’s official website, were Palestinian activists who have argued Israel is an apartheid state. While the ADL has avoided labeling BDS as anti-Semitic, the organization has argued that advocates for the movement “all too often … employ anti-Semitic rhetoric and narratives to isolate and demonize Israel.”
Opposition to BDS has been gaining political traction in Republican circles, including within Trump’s evangelical Christian base, which is strongly supportive of Israel. Pro-Israel conservatives in the US have accused BDS of being anti-Semitic in origin and nature, and that its prominence on campuses is a threat to Jewish students. Sheldon Adelson, the casino mogul and Republican party megadonor, has also put a great deal of money behind combating BDS groups on campuses.
And the administration has been signaling its own concerns about anti-Semitism on campuses. Attorney General William Barr, for example, mentioned the issue during a July conference on anti-Semitism.
“Jewish students who support Israel are frequently targeted for harassment, Jewish student organizations are marginalized, and progressive Jewish students are told they must denounce their beliefs and their heritage in order be part of ‘intersectional’ causes,” Barr said.
Where did this order originate?
According to the New York Times, which first reported on the Trump administration’s plans, Jared Kushner, the President’s son-in-law and a senior White House adviser, has been pushing for this order internally.
The language is very similar to legislation proposed in Congress directing the Education Department to include protection from anti-Israel and anti-Semitic discrimination in enforcing the Civil Rights Act. Members of both parties co-sponsored the Anti-Semitism Awareness Act, which was first introduced in 2016, when it passed the Senate unanimously but was not taken up by the House of Representatives.
The bill was reintroduced in both houses of Congress in 2018 and 2019.
The definition of anti-Semitism in that bill tracks with the working definition adopted by the International Holocaust Remembrance Alliance in 2016. As a result, the US State Department has adopted this definition, which the administration says was built on its own working definition from 2010.
Why is it controversial?
Pretty much anything involving the Middle East, the Trump administration, discrimination, and federally funding for colleges is bound to attract controversy.
Some Jewish groups, including the Anti-Defamation League, have expressed their support.
“In a climate of rising anti-Semitism, this Executive Order provides valuable guidance on anti-Semitism, giving law enforcement and campus officials an important additional tool to help identify and fight this pernicious hate,” said Jonathan Greenblatt, the CEO of the ADL, in a statement Wednesday.
But one major objection is that the order threatens free speech. J Street, a progressive Jewish organization, issued a statement blasting the expected executive order, saying it would have a “chilling effect” on criticism of Israel on campuses.
The Foundation for Individual Rights in Education, a non-ideological organization that defends college students’ free speech, said the order “would threaten freedom of expression on campus.”
Palestinian groups in the United States have also expressed their opposition to the executive order. The US Campaign for Palestinian Rights, for example, has said it would “embolden” Kenneth Marcus, the Education Department’s civil rights chief who the group calls a “staunch opponent of Palestinian rights.”
And while the Trump administration has made several policy decisions and moves that can be broadly interpreted as pro-Israel, the President’s own comments do not always endear him to the American Jewish community, which already votes overwhelmingly Democratic.
The executive order comes just days after several Jewish groups criticized Trump over a speech he delivered Saturday to an Israeli-American organization. The groups accused him of using anti-Semitic stereotypes.
Speaking at the Israeli American Council National Summit in Florida, Trump suggested that many of the attendees at the event are wealthy and in real estate, and that their wealth would guide their votes in the 2020 presidential election.
“A lot of you are in the real estate business because I know you very well. You’re brutal killers, not nice people at all. But you have to vote for me, you have no choice,” he said. The President also admonished some Jewish Americans for not loving Israel “enough.”
Trump drew similar condemnation during his 2016 presidential campaign when he told a group of Jewish Republicans, “You’re not going to support me because I don’t want your money.”