NAICU Washington Update

President Signs Executive Order on Anti-Semitism on College Campuses

December 12, 2019

In a move that garnered significant and, in some cases, erroneous initial media coverage, President Trump recently signed an executive order aimed at combating anti-Semitism on college campuses. Although the executive order is intended to encourage the Department of Education to pursue more robust enforcement of anti-Semitic conduct, it does not represent a dramatic policy shift.
Despite news reports to the contrary, the executive order does not expressly define discrimination against Jewish people as a prohibited form of national origin discrimination. Rather, the order allows federal agencies to adopt a more expansive definition of anti-Semitism and clarifies the circumstances under which anti-Semetic conduct will be construed as a form of national origin discrimination.
Notably, President Trump’s executive order echoes guidance issued by the Obama Administration in 2010. This guidance, which remains in effect, clarifies the Department’s interpretation of Title VI of the Civil Rights Act. Under Title VI, institutions of higher education that receive federal funding are prohibited from discriminating on the basis of race, color, or national origin. There is no equivalent federal statutory prohibition against discrimination on the basis of religion.
Nevertheless, there are some instances in which current law can be used to address religious discrimination in higher education. According to the 2010 guidance, “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.” In recent years, the Department has increasingly relied upon this interpretation to pursue enforcement action against anti-Semitism on college campuses.
Like the Obama-era guidance, President Trump’s order states that “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.” In addition, the order allows federal agencies to adopt the same broad definition of anti-Semitism that is contained in the Anti-Semitism Awareness Act of 2019. An earlier version of the legislation passed the Senate in 2016, but died in the House of Representatives amid concerns about the bill’s impact on freedom of speech and academic expression. The new executive order clarifies that federal agencies are prohibited from infringing upon First Amendment free speech rights.
The executive order is the latest development in a long-running political debate about the prevalence and severity of anti-Semitic incidents at colleges and universities. In recent years, the debate has increasingly centered around the boycott, divestment, and sanctions (BDS) movement that seeks to end international support for Israel based on its treatment of Palestine. Specifically, some legislators equate the BDS movement with anti-Semitism, while others argue that the movement is not anti-Semitic because it reflects criticism of Israel’s policy choices, not anti-Jewish beliefs.

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