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Thursday, December 12, 2019


I have not weighed in on the dispute over the administration's new order on anti-Semitism and Title VI. I do not like the new regs in my guise of free-speech advocate, because it appears to have potential to incentivize schools to restrict a lot of protected speech (including naked anti-Semitism) for fear of losing federal dollars.

But I do not understand the supposed apprehension that David Schraub describes: Jews do not want to be described as having a distinct national origin because it highlights "otherness," non-Americanness, and the historic charge of disloyalty. Schraub argues that "[i]f 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 this is incomplete. Schraub ignores the word "race" in Title VI, which seems to capture Jews without having to get into existential debates about nationality and the disloyalty they imply. SCOTUS has held that Jews are protected under § 1982 and Iraqi-born Muslims under § 1981. Lower courts have relied on that case law to hold that Jews are protected as a racial group (defined by "ethnicity and ancestry") under Title VI and Title VII (although other courts disagree). The point is that reading Title VI to protect Jews is neither unusual nor dangerous.

Posted by Howard Wasserman on December 12, 2019 at 07:22 PM in First Amendment, Howard Wasserman | Permalink


The possibility that Jews could be considered a "racial" group is not at all in tension with the statement that "[i]f Jews are deemed 'just' a religious group, then they are not covered by Title VI." I fail to see what is "incomplete" here.

As for me, I have no problem with Title VI protecting Jews as a racial or national group -- the approach taken by the Bush and Obama admins and confirmed in Trump's EO. But my article tries to explain why in this particular moment some Jews were especially sensitive on this point. After all, surely Steven is correct that if the NYT article had instead blared "Trump admin to declare Jews a separate race", the Jewish community freakout would have been if anything more intense. That I think the concern is ultimately misplaced -- especially once one understands the context of Title VI -- doesn't mean I don't understand where it comes from.

And this sort of ambivalence has been true for awhile. In the Shaare Tefila case, for example, the position urged by many Jewish group is that Jews are protected under Sec. 1982 because we WERE (considered) a race in the 19th century when the provision was drafted, even though we're not today -- a splitting of hairs motivated precisely by the fear that an explicit declaration of "objective" Jewish racial otherness would be dangerous.

Posted by: David H Schraub | Dec 13, 2019 4:02:58 PM

Steve: The courts have never questioned that. And it has not resulted in any special "othering." Which brings me back to my point--I am not sure why Schraub see some trade-off between civil rights protection and charges of disloyalty. Call it race, call it ethnicity, call it ancestry, call it whatever.

Posted by: Howard Wasserman | Dec 13, 2019 7:01:41 AM

Important issue. But we tend to ignore, or simply not understand, that the essence of Judaism, has to do with nationality and territory. This is a territorial religion ( differentiated from god, universal god ). It is inseparable simply. Worshiping god, in the promised / holy land, is the ultimate or the core and the essence of that religion. The fact that there is no other religion like that, or no clear analogy to it,doesn't exclude it as religion and nationality at the same time simply.


Posted by: El roam | Dec 13, 2019 6:01:04 AM

As long as the law treats anti-Jewish and anti-Muslim and anti-black and anti-homosexual speech the same, it can either legalize it all or outlaw it all under RAV v. St. Paul.

It's like speech-hostile-to-women can be outlawed so long as speech-hostile-to-men is outlawed.

We, the people, just want no content-based regulations or restrictions.

Posted by: Hanukkah It-up | Dec 12, 2019 11:31:12 PM

Referring to Jews as a "race" or "racial group" is far more fraught than nationality, for reasons that I hope are evident to readers of this blog.

The term "race," of course, is a social construction and therefore actually quite meaningless. The same is true of "ethnicity" and "nationality," both of which have shifted in colloquial meaning over the past century. Trump's EO simply clarifies that Jews may be considered as something other than a religious group.

Posted by: Steven Lubet | Dec 12, 2019 9:22:51 PM

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