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Trump’s executive order: what it said, what it didn’t say

President Trump, joined by First Lady Melania Trump, holds an Executive Order he signed on combating anti-Semitism Wednesday, Dec. 11, 2019. (D. Myles Cullen)

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Based on inaccurate reporting by The New York Times the night before President Donald Trump announced an executive order on anti-Semitism, Dec. 11, many wire reports, including one printed on page 1 of the Intermountain Jewish News, Dec. 13, contained inaccuracies.

The NYT reported, and other news sources repeated, that Trump had defined Jews as a nationality for the purposes of defining discrimination under Title VI of the 1964 Civil Rights Act.

Denver attorney and political activist Norm Brownstein, who has been active in seeking a way for the federal government to act against anti-Semitism in schools on the basis of Title VI, clarified the content of Trump’s executive order and the history behind it in an interview with the IJN this week.

Title VI defines the basis for government action, such as withdrawal of federal funds, against discrimination by schools.

It was inaccurately reported that since religion is not a definition in Title VI on the basis of which discrimination may be acted against, Trump included it under “nationality.”

In fact, Trump’s executive order does not define Jews or any other religious group. Rather, his order adds one significant expansion to the way that both Presidents George W. Bush and Barack Obama defined Title VI to include discrimination against Jews.

Trump’s executive order for the first time by any American president accepted the defiinition of anti-Semitism adopted in 2016 by the International Remembrance Holocaust Alliance, of which the US is a member.

Both Bush and Obama found a way to subsume, for all practical purposes, religion under Title VI. Both presidents had the Dept. of Education issue a “Dear Colleague” letter — a letter of instructions to schools by the Dept. of Education. The Bush letter went out on Sept. 13, 2004; the Obama letter on Oct. 26, 2010.

Each letter, based on the fact that Title VI does not cover discrimination based solely on religion, said that groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith.

Protection may not be extended on the basis of religion alone. But it may be extended to religious groups that face anti-Semitism, harassment, threats or intimidation that creates a hostile environment so severe, pervasive or persistent so as to interfere with or limit some students’ ability to participate in or benefit from the services, activities or opportunities offered by schools.

Neither Bush’s nor Obama’s letter provided specific guidance on current manifestations of anti-Semitism. Trump’s executive order provided that guidance: the international definition of anti-Semitism [see box for the definition].

This definition takes into account certain anti-Israel activity that is deemed anti-Semitic.

Brownstein relates the back story to this executive order.

“It’s something I’ve been working on for four years.

“In 2016, Mark Rowan, a founding partner of Apollo Global, Mitch Weber, a lawyer in Washington, DC, who now works for the White House Counsel, and I came to see then Senate Majority Leader Harry Reid and his chief of staff, David Krone.

“Rowan was deeply bothered by anti-Semitism in colleges.

“We explored many things. We talked to Ken Marcus, then president of the Brandeis Center for Human Rights Under Law, now assistant secretary for civil rights at the Dept. of Education.

“We discovered that while the State Dept. had a working definition of anti-Semitism, all of the anti-Semitism claims from people at universities were never investigated by the Dept. of Education because it had no definition of anti-Semitism.

“The State Department’s definition was developed through the International Remembrance Holocaust Alliance. It’s a working definition.

“It’s simple and broad.

“It includes examples, such as calling for killing a Jew in the name of a radical ideology, or accusing Israel of exaggerating the Holocaust, or drawing a comparison between Israeli policy and that of the Nazis.

“So we brought the definition to Congress. In 2016, the Senate passed a bill that defined anti-Semitism according to the international definition, and required the Dept. of Education to use it.

“It passed unanimously, but was held up in the Judiciary Committee in the House. Rep. Bob Goodlatte (R-Va.), the chair, opposed it, ostensibly for First Amendment concerns.

“When Goodlatte, a Republican, started talking about First Amendment, constitutionality, we brought in the #1 Republican lawyer in America, Paul Clement, and he wrote an opinion. Then we hired the former White House counsel for Obama, Kathy Ruemmler. They both said it doesn’t violate the First Amendment.

“The original Jewish support group for this bill was ADL, AJC, AIPAC, JFNA, Wiesenthal Center and Christians United for Israel.

“The bill expired in 2017.

“Earlier this year, in March, the Senate reintroduced the bill. The sponsors now, as in 2016, are Sen. Tim Scott (R-SC) and Sen. Bob Casey (D-Penn.). Among the co-sponsors are both Cory Gardner and Michael Bennet.

“So then we see this impeachment thing is coming. Congress is not going to get it done. But we need to make a run, so we turned to the president for an executive order.

“Even though the president can’t bind Congress, and he can only bind his own administration, we went ahead and the White House issued this executive order — which requires all agencies of the federal government to use this definition, and the Dept. of Education especially, because it enforces Title VI.

“It will be very very difficult for any American president to get rid of this.

Mark Rowan approached Jared Kushner, and Kushner approached the president.

“After talking to everybody, the president decided to issue the order.

“We’re not giving up on the US Senate, but it will be difficult to get this done in the short term.

“The order has nothing to do with BDS. It’s not BDS, it’s anti-Semitism. Nor does the order label Jews a nationality. The nuance is in the two letters from Bush and Obama.

“Alan Dershowitz says it’s the biggest thing he’s seen in 65 years.

“Larry Mizel and I were at the signing. Mizel is chair of the Wiesenthal Center. Also there were Rowan and Scott. Harry Reid and David Krone were totally instrumental.

“Of all the stuff I’ve done for Israel and Jewish issues, this is at the top of the list.

“This is the only thing that can have an impact in dealing with universities. This is going to be the only way that the government can force universities to investigate and decide if something is anti-Semitic, and can make the university do something about it, and if they don’t, their federal funding is cut.

“I want to get it right.”

Copyright © 2019 by the Intermountain Jewish News



Hillel Goldberg

IJN Executive Editor | hillel@ijn.com


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