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How The Left Can Lead The Fight Against Anti-Semitism On College Campuses

In the face of rising anti-Semitism, what should we ask of the law? The highly conflicting responses to President Trump’s executive order on anti-Semitism highlight a fundamental, century-old tension within the American Jewish community about the role of civil rights law in protecting Jews: Do we want the government to treat American Jews as a vulnerable minority group requiring specific anti-discrimination protection? Or are Jews better off seeking equal citizenship as part of the white majority, with no special protection?

To judge from the more incendiary liberal and progressive responses to the announcement of Trump’s order, American Jews now face Nuremberg-style racial laws, and pro-Palestinian political activism has just been criminalized out of existence.

Neither of those realities is remotely in the offing. Yet even less overheated reactions have focused too narrowly on the cynical weaponization of civil rights against anti-Zionism. The real challenge of the executive order to American Jews is its political message about law’s role in fighting anti-Semitism.

For most of the past century, Jewish communal debates about countering anti-Semitism did not neatly reflect left-right partisan lines. But in the past few decades, as political polarization has intensified among American Jews, something new has developed vis-à-vis civil rights law: Jewish conservatives have increasingly advocated an aggressive approach to using civil rights law to protect Jews from anti-Semitism. Despite the conservative political rhetoric about how the law should treat every citizen as an individual, they have advocated what amount to group-based protections for Jews.

By contrast, liberals have largely fallen silent on the matter of anti-Semitism on college campuses, or generally, on the left, which Trump’s executive order was designed to address. Their own predilection for group-based remedies to combat racial prejudice does not routinely extend to Jews. We see that reflected in the varying responses to Trump’s executive order.

To be sure, this vaunted conservative legal solution does precious little to change the status quo on Jews and civil rights law. Rather than defining Jews as a separate nationality, Trump’s new policy merely codifies a still fuzzy, problematic international definition of anti-Semitism already in use in parts of the U.S. government. Beyond that, the directive further confirms that Jewish university students do have recourse to existing anti-discrimination coverage via the 1964 Civil Rights Act.

Neither is likely to make a sizable impact on American anti-Semitism. The new official anti-Semitism definition, based on the controversial International Holocaust Remembrance Alliance criteria, unwisely collapses any distance between anti-Zionism and anti-Semitism. Yet despite the headlines, it does not offer an ironclad set of legal guidelines for identifying or criminalizing anti-Semitic speech.

As for the Title VI rule, the announcement purports to close a legal loophole by which religion is not covered alongside race, color, and national origin in the section of the Civil Rights Act that commonly applies to federally-funded portions of higher education.

As many legal commentators have pointed out, this is technically not a new policy. More crucially, it is hardly a foolproof remedy. No one believes that universities themselves are actively discriminating against Jewish students.

The kinds of anti-Semitic campus threats Jewish students do face — bellicose protests, anti-Semitic vandalism, bigoted speakers — rarely if ever result from deliberately biased university policies. Worse still, the cynical, calculating executive order will likely do little to stop the BDS movement, which is surely savvy enough to reconfigure its tactics and repackage itself as a free speech cause.

What the Trump executive order does do, however, is signal to American Jews that the right has specific legal solutions to check anti-Semitism, while the left is absent on this issue.

Part of the problem is that when American Jewish liberals do confront anti-Semitism, they often default to a philosophy of civil libertarianism. They stress that securing constitutional protections for individuals, including free speech rights and separation of religion and state, are more important than applying group-based anti-discrimination schemes to Jews, especially if those initiatives might exacerbate the local reception of the Israeli-Palestinian conflict.

Yet a simple reliance on civil libertarianism will not suffice to counter the conservative legal campaigns against anti-Semitism or check the spread of inciteful anti-Semitic propaganda. Nor will arguing that right-wing terror is more dangerous than left-wing radicalism convince those Jewish parents genuinely worried about campus anti-Semitism.

Unless the Jewish left presents its own positive view of what civil rights law should do to confront anti-Semitism, then Trump’s anti-Semitism initiative will only further turn the fight against anti-Semitism into a partisan issue.

What, then, should the Jewish left propose? One possible way forward lies in the twisted legal origins of the present policy. The idea of closing the Title VI loophole dates back to the early 2000s, when conservative lawyer Kenneth Marcus, then working in the Bush Department of Education civil rights office, first decided to tackle campus anti-Zionism.

Faced with the absence of “religion” from Title VI of the 1964 Civil Rights Act, Marcus found a fascinating legal precedent in a 1986 Supreme Court case, Shaarey Tefillah v. Cobb. That case is worth considering in light of today’s rampant anti-Semitism and debates about the politics of the Israeli-Palestinian conflict.

After a suburban Washington, DC synagogue was vandalized with anti-Semitic graffiti by neo-Nazi teenagers, a local lawyer named Irvin Shapell devised a novel legal strategy. Rather than file for civil damages to property, he claimed in his lawsuit that the anti-Semitic attack was a violation of a Reconstruction-era law, the 1866 Civil Rights Act, still part of the federal penal code, that forbids racially-motivated damages to the private property of “non-white persons.”

Shapell argued that since the anti-Semites evidently believed the Nazi propaganda that Jews were a separate, non-white biological race, the law could be applied to them. The defendants’ counsel argued that this claim was preposterous, since Jews were manifestly part of the white racial majority.

At the Supreme Court hearing, a surreal discussion ensued about the nature of Jewish identity. At one point, Justice Thurgood Marshall wondered aloud how the law would apply if it were a synagogue in Harlem comprised of African-American Jews that was vandalized. Would that constitute an anti-Semitic hate crime? Or a racist one? How should Jewish racial identity be defined?

In yet one more irony, the court heard Shaarey Tefillah v. Cobb paired with a companion case, Saint Francis College v. Al-Khazraji, in which an Arab-American college professor claimed racial discrimination in employment. In the end, the Supreme Court ruled unanimously that both Jews and Arabs were entitled to be treated as racial minorities for the purposes of civil rights protection.

Taken together, these two Supreme Court rulings opened the door to using anti-discrimination laws originally intended for African-Americans to protect Jews and other minority groups. But in his Bush-era effort, Marcus ignored this outcome to focus only on Jews. He has done so again in his current stint back at the same office in the Trump Department of Education.

During the Obama Administration, Democrat officials actually argued that Title VI should be applied to Jews, Arabs, Muslims, and Sikhs. Jews did deserve legal protection from anti-Semitism, as did other minority populations whose identities commingled ethnicity, color, and religion. In an age in which the Jewish left is grappling anew with thorny questions of race and religion, that sort of legal strategy is well worth reconsidering.

Today, conservatives routinely denounce identity politics and tribalism as undermining American democracy. Yet ironically, the conservative legal strategy for combatting anti-Semitism now rests upon an identitarian assumption that Jews can and should be treated as a separate minority group. Liberals, meanwhile, prize the political virtues of minority identity yet often default to civil libertarianism when it comes to Jewish concerns about anti-Semitism.

Instead, in the face of the Trumpian initiative, liberals might do well to articulate their own visions of anti-discrimination law for Jews and others. Doing so would send a powerful message about what the law can do to stop anti-Semitism alongside other forms of hatred in American society.

James Loeffler is an author and the Jay Berkowitz Professor of Jewish History at the University of Virginia.

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