Facts and Fiction: The Truth About the Trump Administration’s Executive Order on Anti-Semitism

On December 11, 2019, President Donald Trump signed an executive order declaring his administration’s commitment to enforcing federal racial anti-discrimination provisions against discrimination “rooted in anti-Semitism.” Contrary to initial reports, the Executive Order Combating Anti-Semitism does not redefine Judaism as a race or nationality. The Order suggests, however, that federal regulators may consider claims by students that the State of Israel is racist or should not exist to be discrimination on the basis of national origin. School leaders at both the K-12 and higher education levels should be aware of the directives in the order and of the increased likelihood of federal enforcement against schools that do not promptly, thoroughly, and adequately respond to complaints of anti-Semitic discrimination based on race, color, or national origin.

Background

The U.S. Department of Education’s Office for Civil Rights (OCR) has long interpreted the federal law prohibiting discrimination on the basis of race, color, and national origin—Title VI of the Civil Rights Act of 1964—to apply to discrimination against Jewish students. Since OCR’s 2010 Dear Colleague Letter on Harassment and Bullying, issued under the Obama administration, OCR has warned that “anti-Semitic harassment can trigger responsibilities under Title VI” even though “Title VI does not cover discrimination based solely on religion.” This is because Jewish individuals may “face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics,” which is covered by Title VI. “Thus, harassment against students who are members of any religious group triggers a school’s Title VI responsibilities when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.” 

The Executive Order

The administration’s recent Executive Order does not change this standard or the situations in which anti-Semitic discrimination is covered by Title VI. It specifically echoes the Obama-era guidance:

While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices.  Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

The Executive Order does direct executive departments and agencies charged with enforcing Title VI, including OCR and the Department of Justice’s Office for Civil Rights, to consider the definition of anti-Semitism adopted by International Holocaust Remembrance Alliance and the IHRA’s “Contemporary Examples of Anti-Semitism” to the “extent that any examples might be useful as evidence of discriminatory intent.” One of those contemporary examples is “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.” The Fact Sheet that accompanied the Executive Order also refers to “a disturbing trend of rising anti-Semitism in the United States . . . particularly in schools and on college campuses.” The Fact Sheet specifically refers to the “Boycott, Divest, Sanctions” (BDS) movement, through which students rally against their college or university’s financial connections to companies that do business with Israel.

These references have led concern from critics who fear a crackdown on what many see as free speech regarding an issue of growing controversy on American campuses. It remains to be seen just how OCR will interpret the Executive Order’s reassurance that “Nothing in [the] order shall be construed . . . to diminish or infringe upon the rights protected under any provision of law,” including, presumably, the First Amendment.

The Order also directs federal agencies to consider whether there are other nondiscrimination authorities that the government can use to address anti-Semitism. This is yet another signal in the Executive Order that the Trump administration intends to vigorously enforce federal law to the full extent possible when it comes to discrimination and harassment against Jewish students.

Key Takeaways for School Leaders

It seems unlikely that the Executive Order will dramatically change the definitions OCR and other federal agencies use to address complaints that a school failed to properly respond to reports of anti-Semitic discrimination or harassment against Jewish students. But school leaders at all levels should be prepared for an uptick in enforcement in this area. At a minimum, schools should handle with care any complaints of mistreatment of Jewish students by peers or other members of the school community. At the same time, equity officials in schools should ensure they understand the sometimes-thin line between discriminatory speech and speech protected by the First Amendment.

Now, more than ever, individuals tasked with investigating and otherwise responding to complaints of discrimination and harassment based on race, color, and national origin should refresh themselves on the fundamentals of Title VI and the First Amendment. For more information on training requirements and options, contact the authors of this post or any other Franczek attorney.