Why Trump's Executive Order Protecting Jews Is Both Legal and Necessary
"This administration's commitment to open debate and the pursuit of truth on our nation's campuses is unwavering. In enforcing Title VI against the wider spectrum of prohibited discrimination, government agencies will continue to respect the free flow of ideas, even those that are detestable, and enforce critical protections for free speech and political debate. But we will stand firmly against using taxpayer resources to entrench and subsidize invidious discrimination." —Jared Kushner, senior adviser to the president
An Emergency Meeting at Valley Beth Shalom
Five years ago, this author attended an emergency meeting of Jewish congregants that was called on a weeknight at Valley Beth Shalom, a synagogue in Encino, California. A UCLA student had been invited to speak about the problem of anti-Semitism on campus. Apparently, Jews were being targeted by Palestinian Muslims, due to their support for the Boycott, Divest, and Sanctions (BDS) movement against Israel. Jews were being told they could not run for office on campus, were being told they were unfit for certain other roles or jobs, and were even being violently attacked. These were mainly American students who were being mistreated, based on hatred being directed toward Israel for its government policies affecting Palestinians living in Gaza.
Question: Do American Jews deserve equal protection under the law along with Israeli Jews who enjoy legal protection under Title VI of the Civil Rights Act of 1964? Here is the applicable language under the law: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
All presidents have issued executive orders, the first one to call it precisely that being President Abraham Lincoln. Presidents have historically used executive orders to clarify policies based on existing law or to instruct the government how to implement a given law. The issuing of an order should be no more than an effort to "take Care that the Laws be faithfully executed," in accordance with Article Two, Section Three of the U.S. Constitution.
The Congress might make a new law, and the president might then assign specific departments to implement parts of that law, within whatever discretion the law gives him, but never in a manner that would go against the letter or spirit of the law. Trump's recent issuance of an executive order to protect Jews from anti-Semitic hatred is the most recent example.
Why Trump's Executive Order Is Legal
Trump has not changed the law with his executive order, but only clarified how Title VI will be enforced with respect to how anti-Semites are punishing American Jews for Israeli policy, rendering them, in effect, discriminated against on the basis of Israeli national policy, even if they are Americans and not Israelis. The order prompts enforcement action by removing a loophole the universities have been using to permit American Jews to be mistreated by Palestinian students who hate Israel. This was permissible discrimination in the mind of any university administrator who turned a blind eye, due to the fact that most of the targeted Jews on campus were not Israeli nationals. Trump directs in his executive order that if Jews are being targeted by anti-Semites due to Israeli national policy, then they are being treated as Israeli nationals, so they get the same protections under law that Israelis do — equal protection, as it were.
An Order that Never Forgets
There were Germans under Hitler who were mistakenly targeted as Jews, although they were not Jewish. These unfortunates were victims of anti-Semitism, even if they were not Jews themselves, were they not? The intent to prevent such injustice is written into Trump's order, because people being assaulted on campus at UCLA, due to Israeli policy regarding Palestinians in Gaza, are victims of violence directed at Israeli Jews.
Section 1 of President Trump's order reads like this:
My Administration is committed to combating the rise of anti-Semitism and anti-Semitic incidents in the United States and around the world. Anti-Semitic incidents have increased since 2013, and students, in particular, continue to face anti-Semitic harassment in schools and on university and college campuses. Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance. 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.
Trump's executive order is not a change in the law or a prohibition of free speech. Anti-Semitic speech is permitted under the First Amendment, but refusing to hire someone or allow someone to run for office on campus due to hatred for Israel is off-limits.