Director’s column: Jewish Identity and Civil Rights

Last month, as we reported in the Quad, the Institute for Jewish & Community Research joined a dozen major Jewish organizations in urging the Obama administration to bring Jewish students back within the coverage of federal civil rights law. This should be a natural move for the Obama administration, which has repeatedly pledged to step up the pace of civil rights enforcement. Yet the administration’s position remains very much in doubt. This month, Assistant Secretary Russlynn Ali confessed – in what we hope is not an admission of guilt – that “I lose sleep over this one.” Meanwhile, this issue may have united the organized Jewish community behind a movement for change, but it has also generated a diverse range of reactions from Jewish academics.

The Obama administration has hesitated to correct the omission in current law – and prior administrations have had at best a checkered record – because Title VI of the Civil Rights Act of 1964 bans discrimination on the basis of race, color and national origin but not religion. OCR has been understandably reluctant to characterize Jews as a distinct “race” in light of the devastating history of the idea of Jewish racial distinctness. This has left Jewish students legally unprotected to combat resurgent campus anti-Semitism. Jewish communal organizations – led by this Institute, the American Jewish Committee, the Anti-Defamation League and others – are now demanding OCR to recognize that Jewish students are legally entitled to the same anti-discrimination rights as other groups such as African Americans, Hispanics, Arabs, women, senior citizens and the disabled.

To some commentators, the Obama administration’s Title VI dilemma turns on a very old question. As the Jewish Daily Forward posed the issue, “Are Jews an ethnic or a religious group?” This appears to be a question of immense legal import, since Title VI protections are extended to ethnic groups but not to religious groups. Professor Avi Bass of Northern Illinois University characterized the issue even more bluntly in his widely-read Jewish Faculty Roundtable: “Thirteen Jewish organizations want Jews to be considered ‘an ethnic group’ with a ‘national origin,’ rather than ‘a religion,’ in order to protect Jewish students against anti-Semitic harassment, intimidation and discrimination on campus.” Bass’ missive clearly touched a raw nerve, as it generated countless responses over the last few issues of his Roundtable. In fact, both Bass’ original comment and many of the professorial responses misconceive the Title VI legal issue, but they raise important questions regarding Jewish identity.

Professor Tammi Rosman-Benjamin of the University of California at Santa Cruz provided the first lucid response. “Jewish leaders are not trying to redefine what a Jew is,” Prof. Rosman-Benjamin explained. “They simply want Jewish students to be afforded the same protections under federal law that other minority students are afforded.” In fact, the Jewish organizations’ argument is not based on either the actual nature of Jewish identity – as determined by science, history or anthropology – nor even the social perception of Jews in the contemporary United States. Rather, the legal argument is that Jews should be protected under Title VI because they are one of the groups which Congress intended to protect in the legislation for which Title VI provides an enforcement mechanism. It is a question of original intent and original meaning, in the legal vernacular, rather than one of scientific evidence or common perception. Moreover, as Rosman-Benjamin concluded, it is a question of equity: “It is outrageous that African American, Latino and Arab students are unambiguously protected under Title VI of the 1964 Civil Rights Act, while Jewish students are not.”

Although, the Jewish organizations’ argument rests entirely on legal originalism, extending the logic of prior Supreme Court precedents, it does raise interesting questions of Jewish identity as well. This Institute’s survey research establishes that most college faculty view the Jewish people as both a religion and an ethnicity. The responses to Prof. Bass’ article were however all over the map. “This idea that Jews are an ethnic group is crack-brained,” according to Northern Illinois Professor Albert Resis. “Are Catholics and Protestants separate ‘ethnic groups’?” UC Santa Cruz Prof. Lee Jaffe, by contrast, argues that the “’ethnic’ designation reflects both the complex nature of what it means to be a Jew as well as a pragmatic approach to dealing with institutions and organizations in the wider world.” Jaffe reasons that at public universities, “the religion label can be a bar to access to campus resources, whereas the term ‘ethnic’ opens doors.” Prof. Paul Burstein of the University of Washington goes further, arguing that “Jews actually helped create the concept of ‘ethnic group’ in order to provide a way to identify themselves during debates about immigration a century ago.” More controversially, Columbia University Professor Eric D. Zarahn argues that “[o]f course Jews are a race, to the extent that any group can be considered a race. Jews can be discriminated from non-Jews with high accuracy on the basis of physiognomy and body habitus alone.”

Another approach to the legal issue is to ask whether anti-Semites perceive the Jews to be a distinct ethnic or racial group and base their animus on that ground. This inquiry is well-rooted in American law, although it is not the method that the Supreme Court has adopted in recent years. At any rate, it is not much easier to answer than the first. Prof. Jaffee argues that “[i]n terms of protection from antisemitic harassment, very little of the discrimination against Jews is directed at our religion: They love Judaism, with its Genesis, Psalms, and the Prophets. Its Jews they hate.” Prof. Zarahn argues that this was the Nazi mindset as well: “Jews were murdered en masse in the Holocaust from a perspective purely of race.” These opinions are hardly unanimous however. Professor James Hatley of Salisbury University reports that “[t]he most damaging comments made to Jewish students as reported to me (as their JSA advisor) by non-Jewish students on the Salisbury University campus are religious in character.” In his experience – which may not be typical on secular North American campuses, “[w]hether from a roommate, boy or girlfriend, or just an acquaintance, sooner or later the poisonous statement emerges: ‘Without Jesus you’re going to hell.’”

In the end, though, the question facing the Jewish community is a question of legal and political equity. Walden University Professor Ed Beck, echoing Rosman-Benjamin and the Jewish communal organizations, concludes that “[t]he issue, as I see it is not whether Jews are an ‘ethnic’ group or ‘a religion.’” Rather, “Jews are both an ethnic group with genetic codes that are quite traceable who live with a religion that has endured nearly 6,000 years.” The bottom line, as Beck wisely points out, is quite practical: “As such, we should legally be entitled to the full protection of both ethnic and religious discrimination laws and policies. That Jews are not considered both for the purposes of ethnic intimidation prosecutions only perpetuates the incidents of them and must be rectified.”

Those who are interested in a fuller exposition of these ideas can find it in the author’s upcoming book, Jewish Identity and Civil Rights in American (Cambridge University Press 2011).