The “firestorm” around Trump’s Executive Order to cover antisemitism under Title VI of the Civil Rights Act of 1964 was lit by the match of incompetent legal reporting at the New York Times. In advance of the release of the EO, it was characterized as redefining Judaism as a nationality. Title VI prohibits discrimination on the basis of “race, color and national origin.” It could have included religion. It didn’t.
The order will effectively interpret Judaism as a race or nationality, not just a religion, to prompt a federal law penalizing colleges and universities deemed to be shirking their responsibility to foster an open climate for minority students. In recent years, the Boycott, Divestment and Sanctions — or B.D.S. — movement against Israel has roiled some campuses, leaving some Jewish students feeling unwelcome or attacked.
But the EO didn’t redefine anything. Rather, it followed the policies of prior administrations to deal with antisemitism which, via some sophist gymnastics, was intended as discrimination based on the vague notion of Jews as a race or nationality (“Hey, you’re Jewish? What exit?”), as some who discriminate against Jews believe it to be a racial thing, and thus can be twisted to fit the extent language of Title VI.
Other than legitimate concerns that putting into words what had already been the policy might be the impetus for colleges to silence supporters of the inane BDS movement in violation of their First Amendment rights, as if they need more reason to censor on campus, the EO fury fizzled. Nothing new here. But then Berkeley Law’s David Schraub disagreed.
So if Jews are deemed “just” a religious group, then they are not covered by Title VI. Publicly funded programs, under this view, could discriminate against Jews with impunity.
That’s not really an accurate description nor a realistic concern, as Howard Wasserman explains.
But this is incomplete. Schraub ignores the word “race” in Title VI, which seems to capture Jews without having to get into existential debates about nationality and the disloyalty they imply. SCOTUS has held that Jews are protected under § 1982 and Iraqi-born Muslims under § 1981. Lower courts have relied on that case law to hold that Jews are protected as a racial group (defined by “ethnicity and ancestry”) under Title VI and Title VII (although other courts disagree). The point is that reading Title VI to protect Jews is neither unusual nor dangerous.
Yet, the capacity to find problems under every rock is the superpower of the woke, and so Schraub does.
With nerves already rubbed raw, a news report about an executive order that even hinted at dividing “Jewish” from “American” was the last straw. It was perceived as a doubling-down, another way of telling American Jews, “This is not your country.”
In part, the frenzied reaction can be laid at the feet of The New York Times—its initial article badly misrepresented the content of the prospective executive order and the context of Title VI. And in part, the hostile reaction of the Jewish public is reflective of a separate conversation occurring in the American Jewish community.
Spare me, bro. My reaction wasn’t “hostile” at all, because I don’t spend my days and nights pondering reasons to claim victimhood and marginalization, and I surely won’t let someone else claim it on my behalf. I’m Jewish. I’m American. I don’t need your hyphen or your tears. Sure, there are people who hate Jews, and there are people who hate Israel and do some dance to pretend it’s not about Jews, but Zionism. I hate to break it to you, but there’s someone who hates everyone. Not even WASPs get a free ride in this country, although most are able to afford a cab.
But if this BDS push is the root of this evil, how then does Schraub get so twisted?
Many Jews have grown frustrated at what they perceive as weak or uneven policing of Trumpist anti-Semitism—anti-Semitism that frequently seems to question whether Jews are patriotic or loyal Americans—even as most Jews have firmly laid the blame for rising anti-Semitism at the Republican Party’s doorstep. That they had just witnessed yet another round of tepid “critiques” of Trump’s anti-Semitic remarks before the IAC had Jews particularly attuned to this problem.
And many Jews haven’t, and are capable of distinguishing the progressive BDS movement from old-school antisemiticism of the right. If Schraub is going to claim to speak to “most Jews,” maybe we should take a vote first, as routine antisemitism is hardly as much of a concern for this Jew as the new pseudo-intellectualized antisemitism of the left. It’s far easier to call bullshit at the guy who calls me a “dirty, money-grubbing Jew” than the scholar who will murder ten thousand words to explain why it’s moral and decent to drive Israel filled with its Palestinian-hating Jews into the ocean because they’re committing genocide, just like the Nazis. Give me good, old-fashioned jew hate over your self-loathing sophistry.
But Jews are being baited into taking a very dangerous position here—insisting that we must withdraw from the protection of antidiscrimination law, because it might obliquely confirm the anti-Semite’s suspicion that the Jew is different.
From a law school lecturer, this is idiotic. This isn’t about some vague free-floating moral dilemma of discrimination, but the specific words written in a statute. Whether we’re Jewish or left-handed, Title VI says what it says. If the law fails to suffice, then amend it to say what it should say. But it’s law, not whatever whiny fears float about in the empty space between one’s ears. What could possibly cause Schraub to utter such mindless tripe?
This outlook is a position Jews—and progressives generally—should be very wary of endorsing. It is the kissing cousin of conservative color blindness, which insists that any and all public usages of race—even those that are tailored to undermining discrimination and ingrained inequality—actually function solely to entrench racism. It is the illusory promise of assimilation, the vain belief that if we duck our heads low enough, anti-Semites will forget who we are. It is a viewpoint that ultimately threatens the entire project of antidiscrimination law—a project that cannot function without some notion of who it is protecting and why.
In 1964, when the Civil Rights Act was enacted, color blindness was the epitome of progressivism, the most liberal of goals. Now Schraub says it’s “conservative”? Sorry, kid, but I’m not sewing a Jewish star onto my clothing or getting a tattoo so people can identify me for special maginalized victimhood. Of course there are people who hate Jews, but I’m no one’s willing victim and have no intention to go through life whining about how unfair life is to me.
Stick around for the second song.