POV: Trump’s Executive Order Aimed at Protecting Jews Will Have a Chilling Effect on Freedom of Speech at Colleges
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POV: Trump’s Executive Order Aimed at Protecting Jews Will Have a Chilling Effect on Freedom of Speech at Colleges
Director of BU’s Elie Wiesel Center says it will allow for the policing of speech, like in the days of McCarthyism
Most of us think of Judaism as a religion, rather than a “race, color, or national origin.” So here is the first thing about the Executive Order on Anti-Semitism President Trump signed on December 11 that has raised eyebrows: his order draws attention to anti-Semitism by making it a potential Title VI violation. Title VI of the 1964 Civil Rights Act “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance.”
However, since the executive order concedes that Title VI “does not cover discrimination based on religion,” how can it serve the protection of Jews from anti-Semitic harassment?
It asserts that “(d)iscrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.” This means that Jews may claim a violation of their civil rights if they feel discriminated against on the basis of their (perceived) race, color, or national origin as Jews.
This all sounds strange when we consider that the worst excesses of anti-Semitism had to do with the definition of Judaism as “race.” At the same time, the executive order does nothing to protect Jews from religious discrimination, which does not fall under the protection of Title VI.
And that’s the problem.
The introduction states that “anti-Semitism and anti-Semitic incidents” are on the rise “in the United States and around the world.” Specifically, it claims that “(a)nti-Semitic incidents have increased since 2013, and students, in particular, continue to face anti-Semitic harassment in schools and on university and college campuses.” [In other words, the main thrust of this executive order is to protect Jewish students from anti-Semitic harassment in schools and on university and college campuses across the United States.
Branding views that are critical of Israel as anti-Semitic and making these views actionable, as the Trump Executive Order on Anti-Semitism does, will have a chilling effect on the freedom of speech at schools, colleges, and university campuses that rely on federal financial assistance.
It is not immediately apparent what kind of speech is flagged by the policy statement. In order to make anti-Semitism actionable in the sense of this interpretation of Title VI protection, Section 2 of the order refers to the May 26, 2016, definition of anti-Semitism adopted by the International Holocaust Remembrance Alliance (IHRA), signed by 32 of its member states, including the United States, which states, “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” This definition was adopted by the US Department of State and posted on its Office of International Religious Freedom website. According to that website, as a member of the IHRA, the US government encourages other countries to adopt the same standards.
In addition, the Office of International Religious Freedom and the Executive Order on Anti-Semitism also refer to a list of examples included in the May 2016 resolution that many perceive as troubling because they conflate anti-Semitism (hatred of Jews) with anti-Zionism (criticism to the State of Israel). Such examples include:
- 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 anti-Semitism (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.
While the IHRA declaration and the State Department website include a statement to the effect that “criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic,” the Executive Order on Anti-Semitism does not distinguish between legitimate and illegitimate criticism of Israel. Omitting this sentence from the policy directive opens the door to civil rights proceedings being triggered by entirely legitimate Israel-critical protests on campus. Furthermore, including Israel-critical campus protests in statistics of anti-Semitic incidents leads to a misreading of trends and likely exaggerates the threat against Jewish students.
Branding views that are critical of Israel as anti-Semitic and making these views actionable, as the Trump Executive Order on Anti-Semitism does, will have a chilling effect on the freedom of speech at schools, colleges, and university campuses that rely on federal financial assistance.
As I pointed out in a recent opinion piece, we need to be careful when citing statistics. Hiding behind vague references to “the rise of anti-Semitism” are two potential fallacies. One fallacy hides behind the naturalistic imagery we use when speaking of social trends as “waves” and the like. Speaking of social movements as “waves” increases our sense of helplessness in the face of impersonal forces of violence. The other fallacy hides behind the conflation of anti-Semitism and anti-Zionism. Anti-Semitism is hateful, whether you define Jews as a community of national origin or as a religious community. Criticism of Israel may be painful to Jews and friends of Israel, but it is not necessarily a form of anti-Semitism. It can be part of a legitimate struggle and advocacy for Palestinian rights and a form of protest against Israeli human rights abuses of the kind tracked by Israeli human rights organizations such as B’tselem.
Opposition to the existence of a Jewish State is as old as the Jewish State. Some ultra-Orthodox and ultra-liberal Jews have opposed Jewish statehood, albeit for different reasons. Neturei Karta and the Satmar Hasidim oppose a secular Jewish state for religious reasons. In their understanding, only the Messiah, and hence G-d himself, can end the exile, return the Jews to the land of Israel, rebuild the temple, and bring about the kingdom of G-d. To these religious Jews, Zionism is rebelliousness against the divine edict of exile. Other Jews, devoted to various doctrines of internationalism or post-nationalism, believe that all nation states are evil. For them, Jewish statehood falls short of the ideals of Jewish ethics, and makes Jews and Judaism into stooges of capitalism and colonialism. Neither of these groups can be called anti-Semitic, simply because they subscribe to views critical of Jewish statehood even though both deny the right of Israel to exist.
The executive order was welcomed by many Jews and organizations combating the rising tide of anti-Semitic hate speech and violent incidents that target Jews simply for being Jews. Anti-Semitism is real and it is a danger to Jews, and of late, also to people who socialize with Jews, attend synagogue services on High Holidays, or simply shop in a kosher market. But the executive order neither combats white supremacism nor offers law enforcement a useful tool to fight bigotry in its many forms.
It merely instigates a new era of government interference in American campus life and policing of speech that feels like the beginning of a new McCarthyism. Liberal watchdogs see the measure as advancing the ongoing conservative crackdown on freedom of speech at universities and colleges under the guise of “both side-ism.” As reported by Erica L. Green for the New York Times, the brain behind the new executive order is the head of the US Department of Education Office for Civil Rights, Kenneth L. Marcus. His intention, and that of the most vigorous supporters of the measure, is to create equivalence between anti-Zionism and anti-Judaism. The executive order provides legal backing to the Education Department’s growing number of investigations of academic programs and campus free-speech policies triggered by complaints of discrimination or anti-Jewish bias. Palestinians and advocates of Palestinian rights fear that the measure aims to suppress advocacy and academic freedom. Prestigious Middle East Studies programs have already been scrutinized by the Education Department for anti-Christian bias. With the new executive order, it is now possible to threaten colleges and universities with withdrawal of federal funding if they are found to be critical of Israel.
A measure aimed to curtail freedom of speech on campus in the name of protecting the civil rights of a particular minority does not advance the protection of speech or the rights of all minorities to be free of harassment. It intimidates colleges and universities to the point of curtailing academic freedom and political rights of faculty and students who believe it is their right and responsibility to criticize the State of Israel. We need to fight anti-Semitism on and off campus, but we also need to protect freedom of inquiry and political speech on campus. This measure appears designed to do neither. Rather it seems designed to harass faculty and intimidate student activists by casting aspersions on contested political speech.
“POV” is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact John O’Rourke at orourkej@bu.edu. BU Today reserves the right to reject or edit submissions. The views expressed are solely those of the author and are not intended to represent the views of Boston University.
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