An Executive Order, Jewish Identity and Free Speech

Initially, a factually flawed article in the NY Times alarmed our Third Narrative discussion group by reporting that the Trump administration’s new executive order was redefining Jewishness in “national” or even “racial” terms.  The actual text of the “Executive Order on Combating Anti-Semitism” does not do that however.  

Two of our Third Narrative colleagues are in the forefront of the public discussion.  Kenneth Stern, currently director of the Bard Center for the Study of Hate, has long been an authority consulted and writing on the complexities of identifying hate speech within a society that values free speech and scholarly discourse; he is mentioned in a number of prominent publications on this new executive order.  Writing in The Guardian, he reminds us that a government sanction against some opinions regarded as antisemitic may inhibit legitimate debate and scholarly research:

Fifteen years ago, as the American Jewish Committee’s antisemitism expert, I was the lead drafter of what was then called the “working definition of antisemitism”. It was created primarily so that European data collectors could know what to include and exclude. That way antisemitism could be monitored better over time and across borders.

It was never intended to be a campus hate speech code, but that’s what Donald Trump’s executive order accomplished this week.  . . .

. . .  I’m worried administrators will now have a strong motivation to suppress, or at least condemn, political speech for fear of litigation. I’m worried that faculty, who can just as easily teach about Jewish life in 19th century Poland or about modern Israel, will likely choose the former as safer. I’m worried that pro-Israel Jewish students and groups, who rightly complain when an occasional pro-Israel speaker is heckled, will get the reputation for using instruments of state to suppress their political opponents.  . . .

Our colleague, David Schraub, a lecturer in law at UC-Berkeley, has just published in The Atlantic on this issue (excerpted below):  

. . .   American antidiscrimination law covers certain protected categories. Title VI of the Civil Rights Act prohibits discrimination in programs receiving federal support on the basis of “race, color, or national origin,” but—unlike many other antidiscrimination provisions—not religion.

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.

But the federal government—starting in the George W. Bush administration, and more formally during the Obama administration—began to settle on a more tailored answer.  . . . [W]hen discrimination against Jews—or Muslims or Sikhs, for that matter—is based on “the group’s actual or perceived ancestry or ethnic characteristics,” or “actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity,” . .  . then that discrimination falls under Title VI’s purview. Anti-Semitic discrimination is unlawful under Title VI to the extent that it targets Jews as a racial or national group.

This seemed appropriate. After all, anti-Semites very often envision and target Jews as a racial or national group. Secular Jews are by no means immunized from anti-Semitic attacks. . . . An antidiscrimination regime that is blind to this aspect of Jewish identity and to this manifestation of anti-Semitic hatred would be wholly unequipped to protect Jews.

This week, the Trump administration announced a new executive order that, more or less, entrenches the rule already adopted by the Obama and Bush administrations. It also breaks new ground by officially instructing all government agencies tasked with enforcing antidiscrimination law to “consider” the nonbinding International Holocaust Remembrance Alliance (IHRA) working definition of anti-Semitism, including its illustrative examples.  . . .

The IHRA’s 2016 working definition of antisemitism is controversial because it classifies some criticisms of the State of Israel as antisemitic.  Although the IHRA specifies in advance of this list that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic,” introducing the specter of legal sanction, including the defunding of academic programs, can have a chilling effect on free speech and the freedom of scholarly inquiry and discussion.    

The following acts or beliefs concerning Israel are listed by the IHRA as antisemitic:

  • Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.

  • Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

  • Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.

  • Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.

  • Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.

  • Drawing comparisons of contemporary Israeli policy to that of the Nazis.

  • Holding Jews collectively responsible for actions of the state of Israel.  

Probably all of us at TTN would regard such beliefs and behaviors to be noxious or at least wrong headed.  But are all of them examples of antisemitic hatred?  In this connection, the NY Times editorial page cites Kenneth Stern:

Mr. Trump’s executive order points agencies to the definition of anti-Semitism prepared by the International Holocaust Remembrance Alliance. This definition includes several examples of speech that should be covered [i.e., protected] by the First Amendment, like “claiming that the existence of a State of Israel is a racist endeavor.” For this reason Kenneth Stern, the lead author of the definition, wrote in The Times that it shouldn’t be applied to higher education.

If non-Jews genuinely believe (as most probably do) that Jews are simply a religious group and question whether they’re entitled to self-determination in a country of their own, is that antisemitism or is that ignorance?  And if scholars or activists condemn the oppressive tactics and discriminatory practices of Israeli authorities and armed forces in the West Bank and East Jerusalem, are they guilty of antisemitic “double standards” for not citing the oppressive practices and noxious policies of Palestinian groups like Hamas or of umpteen other movements and governments that subjugate masses of people?  

The Trump administration is ostensibly issuing this executive order to protect Jews from discrimination and assault in the educational sector and elsewhere.   And there is need for such protection: e.g., Stern mentioned Jewish high school students being bullied in a “Kick a Jew Day”; there’s also the example of dorm residents with mezuzas on their doorposts being harassed with “eviction notices” by anti-Israel demonstrators.  

The prevailing notion that Jews are basically followers of a religion does not adequately define most Jews, who are either not religious or only marginally so.  Other than converts, most Jews identify as such because they know their parents and ancestors were Jews.  Hence, a rethinking of Jewish identity away from an exclusively religious identification makes sense. 

Regardless of how Jews are categorized, however, we know that they/we constitute a minority group frequently targeted for discrimination and violent attack.  This past week, we were reminded anew of this sad fact by the deadly attack in Jersey City. Blog TTN