Did President Trump Redefine Judaism as a Nationality?

An executive order signed by Trump could have big consequences for institutions of higher learning.

  • Published 13 December 2019

U.S. President Donald Trump issued a controversial executive order on Dec. 11, 2019, that targets protest movements on college campuses known as Boycott, Divestment and Sanctions (BDS) rallies against the Israeli government over its treatment of Palestinians. It’s an order that that some say could redefine Judaism as a nationality in certain contexts.

Trump signed the “Executive Order on Combating Anti-Semitism” at a White House Hanukkah reception in the presence of evangelical pastor Robert Jeffress, who in 2010 stated “you can’t be saved being a Jew.” The order drew praise from some Jewish organizations and criticism from others. It also drew a vocal backlash from Palestinian activists who said it will chill legitimate free speech that criticizes the Israeli government.

Some Jewish leaders raised concerns over its implications for the Jewish community, namely that it could result in defining being Jewish as a nationality. For example, Rabbi Hara Person, the chief executive of the Central Conference of American Rabbis, said the order feels “dangerous,” telling the Times. “I’ve heard people say this feels like the first step toward us wearing yellow stars.”

Writing for the left-leaning Jewish publication The Forward, Palestinian activist Samer Hassan wrote, “It’s not just actual anti-Semitism that this executive order is designed to target. The State Department and now the federal government have changed their definition of anti-Semitism to include criticism of Israel by suggesting the use of the International Holocaust Remembrance Alliance’s definition of anti-Semitism, which identifies anti-Zionism with anti-Semitism. The IHRA definition effectively characterizes all Palestinian resistance, much of which views Zionism as racist, as anti-Semitic.”

Indeed, White House adviser Jared Kushner (who is also Trump’s son-in-law) defended the executive order in an op-ed for The New York Times, saying “The Remembrance Alliance definition makes clear what our administration has stated publicly and on the record: Anti-Zionism is anti-Semitism.”

The order leverages Title VI of the Civil Rights Act, which “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance.”

In a story published a day before the executive order was issued, the Times reported:

The order to be signed by Mr. Trump would empower the Education Department in such actions. Under Title VI of the Civil Rights Act of 1964, the department can withhold funding from any college or educational program that discriminates “on the ground of race, color, or national origin.” Religion was not included among the protected categories, so Mr. Trump’s order will have the effect of embracing an argument that Jews are a people or a race with a collective national origin in the Middle East, like Italian Americans or Polish Americans.

Kushner took issue with this reportage in his op-ed, stating in response:

When news of the impending executive order leaked, many rushed to criticize it without understanding its purpose. The executive order does not define Jews as a nationality. It merely says that to the extent that Jews are discriminated against for ethnic, racial or national characteristics, they are entitled to protection by the anti-discrimination law.

But the Times stood by its reporting. In an email to Snopes, New York Times spokeswoman Danielle Rhoades Ha said: 

We are confident in the accuracy of our reporting.

The anti-Semitism executive order refers to Title VI of the Civil Rights Act, which extends protections on the basis of race, color or national origin, then [the order] states, “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.” As our story states, the executive order effectively brings Judaism under the umbrella of race and national origin, not just a religion, for the purpose of civil rights law enforcement.

We’ve posted a follow up story that shows that the Trump administration’s Education Department is pursuing five cases involving perceived anti-Jewish bias, in which “national origin” was explicitly referenced regarding Jewish students.

The Times follow-up story outlined several cases pursued by the U.S. Department of Education under the Trump administration, including  separate ones at New York University and the University of North Carolina at Chapel Hill, in which investigators are looking into “whether [university] administrators have allowed their campuses to become hostile environments for Jewish students by coddling anti-Israel sentiment.”

Agreeing with the Times’ assessment was Jocelyn Samuels, who serves as executive director of the Williams Institute at the University of California at Los Angeles School of Law and was a former director of the Office for Civil Rights at the U.S. Department of Health and Human Services from 2014 to 2017. She told us the executive order appears to be intended to “expand the ambit of conduct” that could trigger Title VI enforcement action.

The executive order puts universities in a difficult position by pressuring them to crack down on speech that would likely be protected by the First Amendment, Samuels said.

“I think the real concern about this in the real world is that there are still going to be lots of instances of confusion about when something triggers a legal claim or not, but universities faced with the prospect of losing federal funds will clamp down on what is really political speech about the policies of the Israeli government,” Samuels said.

Universities could then face lawsuits over violating the First Amendment rights of students and faculty who speak out against human rights violations committed against Palestinians by the Israeli government and who are then censured for doing so.

“I also think that it’s interesting that the executive order is focused on anti-Semitism, because there’s a lot of anti-Muslim activity and comments that occur in a variety of contexts, including on university campuses,” Samuels added, pointing out that non-discrimination laws cover, for example, both men and women, and white people and African-Americans. “Under that precedent, you would assume any treatment afforded to one group under the law would be afforded to others as well. But because this order is worded exclusively in terms of anti-Semitism, I think that has yet to play out.”

Some observed that Trump signed the order just a few days after delivering remarks at the Israeli American Council summit that some criticized as embodying anti-Semitic tropes, including the comments: “A lot of you are in the real estate business because I know you very well. You’re brutal killers. Not nice people at all.  But you have to vote for me; you have no choice. You’re not going to vote for Pocahontas [Democratic presidential candidate Elizabeth Warren], I can tell you that. You’re not going to vote for the wealth tax.  ‘Yeah, let’s take 100 percent of your wealth away.'”

Trump has also been criticized for using rhetoric that has helped to create an ideological ecosystem in which far-right values have grown, leading to deadly hate crimes targeting the Jewish community.

In an op-ed for The Jewish News of Northern California, Donald C. Cutler slammed the executive order, writing, “This EO will not protect us from men with guns coming into our communities, our sanctuaries, our supermarkets, and killing us for being Jews.” Instead, he wrote, it laid “the groundwork to protect conservatives from being offended. The United States will now protect you from hearing a different point of view about Israel. I hope you feel safer.”