It’s Time To Implement Trump’s Executive Order On “Combating Anti-Semitism” – Our Letter to the Department of Education

by Johanna Markind
August 20, 2022
Read the original post in Legal Insurrection.

President Biden’s Education Department is still futzing around without addressing campus anti-Semitism. True to form, the Middle East Studies Association (MESA) is urging DOE to continue ignoring the problem. In  letter to DOE, Legal Insurrection Foundation (LIF) has urged DOE to address anti-Semitism as soon as possible by implementing President Trump’s Executive Order on Combating Anti-Semitism.

Back in 2019, then-President Trump signed Executive Order 13899, entitled “Combating Anti-Semitism.” EO 13899 basically suggested that anti-Semitic discrimination was or could be prohibited under existing federal law because it is, or often is, also racial or ethnic discrimination. Think of the Nazis, who murdered Jews because they allegedly belonged to an inferior race. More to the point, think of today’s Israel-haters, who discriminate against Jews because of their ethnic ties to Israel.

For legal geeks looking for a more detailed explanation, EO 13899 directed that the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism be taken into account in enforcing Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal funding, and is the go-to provision used to enforce anti-discrimination rules in education; but it doesn’t specifically prohibit religious discrimination. The EO states:

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.

President Biden hasn’t revoked EO 13899, for which we should all be grateful. But Biden’s DOE hasn’t enforced it either. It’s put off even revising its administrative regulations to implement the executive order until December 2022.

MESA, which has all-but abandoned its academic mission in favor of an pursuing an obsessive-compulsive vendetta against Israel, wrote to DOE trashing the very idea of EO 13899 on the false premise that it “would constitute a serious threat both to academic freedom and to the First Amendment right of free speech at this country’s institutions of higher education.” Why? Because the IHRA definition would allegedly define criticism of Israel or of Zionism as anti-Semitism.

That’s false. The IHRA definition explicitly doesn’t do that. What it explicitly says is, “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.”

What it does say is, unfairly targeting Israel as by “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,” or “Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation,” are examples of anti-Semitism.

Why would MESA oppose such a fair-minded definition of anti-Semitism? Why, because MESA is not fair-minded about Israel, and crosses the line into anti-Semitism by denying the Jewish people their right to self-determination, applying double standards to Israel, and so forth.

Beyond, that MESA has done everything possible to chill speech in favor of Israel, and to hound its supporters off campus. Its attempt to wrap itself in the mantle of protecting “free speech” and the “First Amendment” is laughable.

To counterbalance MESA’s missive, LIF founder and president William Jacobson and I sent our own letter to DOE. We said EO 13899 would help fight anti-Semitism, and DOE should implement it without delay. Here’s an excerpt (with footnotes omitted):

Much contemporary anti-Semitism poses as obsessive hatred of the State of Israel. The world’s only Jewish state is portrayed as uniquely lacking the right to exist. That is anti-Semitism in and of itself, but even if it were not, anti-“Zionism” easily slips over into obvious anti-Semitism. A report by the AMCHA Initiative documented an alarming correlation between anti-Zionism and actions intended to harm Jewish students. Similarly, the Anti-Defamation League (“ADL”) reported that for academic year 2020-21:

ADL experts identified a pattern of anti-Israel groups and activists blatantly demonizing pro-Israel and Zionist students, which disproportionately impacted Jewish students. Occasionally, these activists espoused antisemitic tropes, such as those alleging Jewish or Zionist power and control over the media and political affairs. Such language can create a corrosive climate for many Jewish students on campus. ADL’s Center on Extremism, which monitors anti-Israel activities across the country, found this language primarily came from a handful of student activist organizations that often work in concert to spread anti-Israel and anti-Zionist messages on U.S. college campus.

A joint Hillel-ADL survey from 2021 found that almost a third of Jewish students had experienced anti-Semitism directed at them, and another 31 percent of Jewish students witnessed on-campus anti-Semitic activity directed against others. Fifteen percent of Jewish students reported that they felt the need to hide their Jewish identity from others on campus, and 12 percent said they had been blamed for the actions of the Israeli government because they are Jewish.

We also offered a little background about MESA (again, with footnotes omitted):