Another Day, Another Controversy

Last week the New York Times headline read: Trump Targets Anti-Semitism and Israeli Boycotts on College Campuses. It caused quite a stir in the Jewish community.

The first paragraph reported that the President planned to sign an Executive Order that would permit the federal government to withhold funding to colleges that fail to combat discrimination. That didn’t sound like a bad thing, but then I read the second paragraph (I added the bold):

“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.”

Reading that the Executive Order would define Judaism as a nation and/or race made the hair on my neck stand up. As I surfed the Internet looking at reaction to this, I found a number of comments picking up on Judaism as nationality as problematic. I was more disturbed by the use of the term race.  That idea, of Jews as a separate race, struck terror in my heart. After all, that was one of the essential pieces of Hitler’s plan to exterminate us. Identifying us as a race, as ‘the other,’ as subhuman, made the Holocaust possible. I came to understand this when I took a class in college called The Making of Modern Germany. That class was the single most important one I have ever taken.

Professor George Stein taught every Tuesday and Thursday for ninety minutes during the fall semester of my sophomore year at SUNY-Binghamton. He stood at the podium, wearing a dark suit and tie, his black hair meticulously combed, and lectured to us. It might sound boring, but it was anything but. It was a history class, but he drew from music, art, folklore, science and philosophy to tell the story of a nation. In the telling he gave context and insight into bigger themes – What is a nation? What is modernity? It was fascinating. It wasn’t interactive. Professor Stein may have left a bit of time for questions, but essentially it was entirely lecture and I wouldn’t have had it any other way. You could hear a pin drop in the hall. I took notes furiously; I wanted to commit to memory all he was offering because it was so compelling and comprehensive. I never considered skipping class. I wish I could take it again. I held on to some of my notebooks from college and graduate school. Unfortunately, I have not been able to find that one. Over the years I have wanted to refresh my memory any number of times.

My mind went to that class when I read about the Executive Order. I remember clearly Professor Stein explaining the importance of Hitler’s manipulation of antisemitism. It was already entrenched in Eastern Europe based on the belief that the Jews killed Christ and the widely circulated lie that Jews used the blood of Christian children as part of the Passover ritual. Professor Stein traced how those seeds were exploited to take hatred to the next level. Judaism became more than a religion – Jews became a race with unique characteristics (a whole science was devoted to elucidating the differences). This was a critical step in building the case for genocide.

This is why reading that Trump was urging the United States government to begin defining Judaism as a race was alarming and terrifying, even as it was being offered to ostensibly combat harassment of Jews on college campuses. I could easily imagine it being turned on its head, as so many things are these days, for nefarious purposes.

When I saw that the Anti-Defamation League supported the Executive Order, I thought there’s no way they would if it was as explained in the New York Times article. I read as much as I could on the Internet. That first day I found a lot written about the Executive Order, but not the order itself – which was frustrating.

As I was reading, I was thinking, wasn’t antisemitism already covered by our nation’s laws? Why was this necessary? I went back to look at the Civil Rights Act and found that Title VI, which covers any entity that receives federal funds, prohibits discrimination based on race, color or national origin. Title VII of the same act prohibits employment discrimination on the basis of sex, race, national origin or religion. Obviously the two lists are not the same.

Why aren’t they the same? I didn’t do deep research into this, but since educational institutions are permitted to be connected to a religion (e.g., Jesuit colleges, parochial schools) or same sex and still receive federal funds, I think they couldn’t include those categories in Title VI. Whether we should provide public funds to institutions affiliated with a religious denomination is a discussion for another day.

In my work with NYSSBA, though, I knew that this issue of schools addressing antisemitism has been litigated many times. So, the question remained, under what authority, could schools (colleges or public schools) act against antisemitism? The Civil Rights Act is enforced largely through the Department of Justice and the Department of Education. Those agencies are responsible for interpreting the law and have offices within them that receive complaints of discrimination and/or harassment (harassment can be a form of discrimination). Over the years, dating back to the Bush II administration, they issued guidance documents (the DOE calls them ‘Dear Colleague’ letters) which interpreted Title VI as covering religion. In the aftermath of September 11th, when Muslim students were especially vulnerable, the government explained that when students were targeted for being perceived as a different race the school district had an obligation to protect those being harassed. So, using the same logic, Jewish students and Sikh students (or any student whose religious practice or nation of origin may make them appear to be of a different race) are covered by Title VI.

Then the question becomes, what does this Executive Order offer that is different? After looking into this, I have no answer.  I came to the conclusion that it remains to be seen whether this is a positive thing, or a dangerous step, or not really a change at all (and just political pandering) – as with many things, it depends on how it is interpreted and implemented.

[By the way, it is worth noting that states also have laws that offer protections, too. New York State’s anti-discrimination laws are much more expansive than federal law and includes LGBT and disabled citizens, among others.]

The Executive Order was finally posted by the White House the next day – needless to say, I read it. I will point out that the Executive Order, and the source document it is based upon (a definition of antisemitism adopted by the International Holocaust Recognition Alliance) does not say that Judaism is a race or a nation. It also does not say that being anti-Israel is equivalent to being anti-Semitic, despite what Jared Kushner opines; though that is where the waters get muddy. The IHRA document specifically says “….criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic.”

As we know, on college campuses Israel gets a lot of criticism. Where it crosses over into antisemitism is complicated and often in the eye of the beholder. Can a person be anti-Zionist and not be anti-Semitic? If anti-Zionism means you oppose the existence of the State of Israel, it is hard not to get a whiff or more of antisemitism (other than Jews who believe that God – the messiah – is the only one that can create a Jewish homeland).

The founding of the State of Israel was, in my opinion, as legitimate as any nation. After the Holocaust, it was clear that Jews needed a homeland. As a result, the U.N. defined and authorized its creation. Every country I can think of has disputed boundaries and conquests in its history that contributed to their current configuration. The United States, Russia, China, Great Britain all come to mind. I’m not aware of any country that wasn’t built on the blood of a people in some way or another. Israel is no different.

I have lots of criticisms of Israel and how it conducts itself, especially under Netanyahu. But to suggest that it deserves to be isolated in the same way as North Korea or Iran, or to question its right to exist, is a bridge way too far. Students should be able to study in Israel. Academic exchanges should be welcomed. Individuals can choose not to buy its products if they don’t like their policies, as I don’t shop Walmart. But, I am not seeking to have Walmart driven into the sea, or cutting it off from civilized society. I would like Walmart to change – to treat its employees fairly and to operate as a good corporate citizen. Maybe it isn’t a perfect analogy, but I think it makes the point.

If this Executive Order is used to stifle protest of Israel’s actions, then it will be a misuse of governmental authority. If it bolsters the federal government’s authority to investigate harassment of Jews, that would be a positive outcome given the frightening increase in anti-Semitic hate crimes. If it gives authorities more cover, and suggests more political will to confront it, then maybe it can be helpful.

In sum, my two takeaways from this are: (1) the New York Times did a poor job of reporting on this and contributed mightily to the controversy by mischaracterizing the Executive Order. Some might not be surprised at that, I am disappointed.

And, (2) as with all things with the Trump administration, we will have to be vigilant to make sure power isn’t abused or turned on its head.