Jewish Insider published a draft executive order on "combating anti-Semitism" that President Donald Trump is expected to sign Wednesday, raising questions about a New York Times report from Tuesday that "the order will effectively interpret Judaism as a race or nationality, not just a religion"—which elicited widespread criticism, particularly among progressive Jews.
The leaked draft suggests Trump's order is more ambiguous than it was initially reported by the Times. As watchdog reporter Dan Froomkin put it at Press Watch: "The Times report may have been both credulous and overstated."
The draft, Vox explained, "does not redefine Judaism as a nationality. Instead, it appears to largely be a reiteration of 2010 guidance issued by the Obama administration aimed at providing a more expansive definition of anti-Semitism."
The order pertains to enforcement of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and, national origin in programs and activities that receive federal funding—including educational institutions. The draft states in part:
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.
However, Vox noted, a reading of the full text "doesn't mean... that the executive order is without its problems."
The draft also instructs federal officials enforcing Title VI to "consider" the International Holocaust Remembrance Alliance (IHRA) working definition of anti-Semitism, as well as the alliance's contemporary examples of anti-Semitism "to the extent that any examples might be useful as evidence of discriminatory intent." With such considerations, the draft states, "agencies shall not diminish or infringe upon any right protected under federal law or under the First Amendment."
Although IHRA says that "criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic," its list of examples includes "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," and "drawing comparisons of contemporary Israeli policy to that of the Nazis."
Considering the examples, Vox reported that "rigorously applying the IHRA standard to Title VI enforcement could, then, result in reclassifying campus advocacy for the Palestinians as anti-Semitism—forcing universities to either crack down on student free speech or risk losing a whole lot of federal funding."
Some legal experts agreed. As Vox pointed out, University of Michigan Law professor Sam Bagenstos tweeted that "the text of the EO is really a nothingburger that doesn't change the law in any way. The key question will be how it is applied in practice."
According to Froomkin, the intent of the order—however nuanced the language—is still very clear.
Responding to an op-ed that Jared Kushner, Trump's son-in-law and senior adviser, wrote for the Times Wednesday, Froomkin tweeted:
Jared’s op-ed makes it crystal-clear that the executive order has nothing to do with anti-Semitism, but is an attempt to ban criticism of Israel (and please Sheldon Adelson) https://t.co/NnS3zpgPNC
— Dan Froomkin/PressWatchers.org (@froomkin) December 11, 2019
"Most directly," Froomkin wrote in his earlier piece, "it's an obvious attempt to kill the BDS 'Boycott, Divestment, and Sanctions' movement on college campuses which, modeled on the fight against the apartheid regime in South Africa, is an attempt to sever ties with Israel in account of its inhumane treatment of the Palestinian people."
That reality, he added, is not "hard to figure out."
Progressives responded with swift condemnation after The New York Times reported Tuesday that President Donald Trump plans to sign an executive order Wednesday that allegedly aims to tackle anti-Semitism by defining Judaism as a race or nationality rather than just religion and enabling the Education Department to withhold federal funding from institutions that don't crack down on criticism of Israel.
Critics of Trump's "terrifying" order warned that it will be harmful not only to those who speak out against Israel's treatment of Palestinians—particularly through the Boycott, Divestment, and Sanctions (BDS) movement—but also to American Jews, the very people the order is supposed to protect, regardless of their political positions.
"The order's move to define Judaism as a 'nationality' promotes the classically bigoted idea that American Jews are not American," tweeted Emily Mayer, co-founder and political director of the Jewish progressive activist group IfNotNow. "Trump's executive order is not about keeping Jews safe. This is just more anti-Semitism."
"This order is a dangerous move to silence the free speech of human rights advocates and, in particular, Palestinian and Muslim college students," Mayer added.
Jewish groups accuse Trump of anti-Semitism over "horrifying" plan to define Judaism as a nationality https://t.co/Lz8tCguWah
— Newsweek (@Newsweek) December 11, 2019
The Minnesota-based group Jewish Community Action, which also responded on Twitter, declared that "as American Jews, we will resist being defined as anything else. This is an empty, dishonest manipulation—the president wants to distract us from the truly violent white nationalism he has emboldened, and his own blatant anti-Semitism. We can't let it work."
According to three administration officials who spoke to the Times on the condition of anonymity, "the definition of anti-Semitism to be used in the order matches the one used by the State Department and by other nations, but it has been criticized as too open-ended and sweeping," even by its original lead author.
The lead author of the definition of antisemitism that Trump is about to apply by executive order to police campus debates testified before congress in 2017 that it should never, ever be used that way.
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Yousef Munayyer, executive director of the U.S. Campaign for Palestinian Rights, called the "outrageous" order part of the Trump administration's sustained campaign "to silence Palestinian rights activism" by classifying opposition to Israel's treatment of Palestinians as anti-Semitism.
"Israeli apartheid is a very hard product to sell in America, especially in progressive spaces," Munayyer told the Times, "and realizing this, many Israeli apartheid apologists, Trump included, are looking to silence a debate they know they can't win."
By signing the order, the Times explained,
Trump will use his executive power to take action where Congress has not, essentially replicating bipartisan legislation that has stalled on Capitol Hill for several years. Prominent Democrats have joined Republicans in promoting such a policy change to combat anti-Semitism as well as the boycott-Israel movement.
As Rabbi Alissa Wise, co-acting executive director of Jewish Voice for Peace, put it in a statement: "The executive order is his way of forcing through a deeply unpopular and unconstitutional bill."
"Three days ago, Trump said Jews would vote for him because they like money," Wise said, referencing the president's speech at a pro-Israel conference in Florida over the weekend. "And yet now he suddenly pretends to care about Jewish safety? He has never cared about stopping anti-Semitism—this executive order is about silencing Palestinians and the people who speak up with them."
Wise, on behalf of her group, urged members of Congress to "immediately condemn this executive order and commit to overturning this authoritarian act."
Among those who have spoken out against the order is Rep. Pramila Jayapal (D-Wash.), co-chair of the Congressional Progressive Caucus. She warned in a tweet Wednesday that Trump's order "will stifle free speech and legitimate opposition to the Israeli government's policies on college campuses. It will do nothing to protect Jewish students. Instead, it'll usher in a climate of fear for campus activists."
Journalist Aaron Maté concurred, commenting that it is "hard to think of a more brazen assault on free speech."
Hard to think of a more brazen assault on free speech than Trump's executive order targeting campuses that defend Palestinian rights & criticize Israel. One obstacle in opposing it is that Trump is "essentially replicating bipartisan legislation." https://t.co/Ad5vUtkucD pic.twitter.com/P6B1VVy9a7
— Aaron Maté (@aaronjmate) December 11, 2019
Students such as IfNotNow activist Becca Lubow also slammed the forthcoming move by Trump.
"As an anti-occupation college student, I know this executive order defining Judaism as a 'nationality' will ramp up already vicious attacks on Palestinian students," she said. "As a Jew, I'm terrified by my government saying my country, my home, isn't here."
Some critics decried the "hypocrisy" of Trump's order and accused the president of contributing to anti-Semitism.
.@realDonaldTrump gave one of his most antisemitic speeches to date this past weekend, calling Jews “not nice people” & “brutal killers,” claiming that we vote to protect Jewish wealth above all else. Antisemitic violence has steadily increased on his watch, because of him.
— Sophie Ellman-Golan (@EgSophie) December 10, 2019
The hypocrisy reeks. Trump doesn't care about Jewish safety. If Trump were really concerned about antisemitism he’d stop peddling anti-Jewish stereotypes and kick white supremacists out of the White Househttps://t.co/To9KMdSO9T
— Sonya E Meyerson-Knox (@S_MeyersonKnox) December 10, 2019
An assault on free speech by a man who spews and enables violent antisemitism regularly. Using these tactics criminalizes voices for Palestinian human rights, endangers the Jewish community, and provides cover for consistent right-wing bigotry. https://t.co/SXm9xYkgtV
— Omar Suleiman (@omarsuleiman504) December 11, 2019
Others highlighted how often critics of Israel face attempts to silence them, on campuses and beyond.
By far the worst Trump-era attack on free speech is this executive order from Trump designed to punish campus criticism of Israel. Israel critics are already the #1 target of campus censorship. Will the Right's fake free speech crusaders denounce this? https://t.co/frCJ5iOIMj
— Glenn Greenwald (@ggreenwald) December 11, 2019
Here's an actual threat to free speech on college campuses, decreed by a president openly contemptuous of the Constitution (and of Jews), and targeted at political speech against Israel. Let's see how many "free speech"-obsessed elite pundits condemn it. https://t.co/hwofvUYvbE
— David Klion(@DavidKlion) December 10, 2019
Lisa Hendricks, a national volunteer with the gun violence prevention group Moms Demand Action, also took to Twitter to weigh in on Trump's executive order.
"Nope. This does not fight anti-Semitism, this is just another way of othering Jews," she wrote. "Judaism is my religion, not my race or ethnicity. You know who defined Jews as a race? Nazis."