Professional Documents
Culture Documents
Kenneth L. Marcus1
origin but not religion, the U.S. Department of Education’s Office for Civil Rights (OCR)
because of … race [or] national origin.” under Title VI of the Civil Rights Act of 1964.
The stakes are high, since Jewish students receive no OCR protection unless actions
taken against them constitute one of these forms of discrimination. Intuitively, neither
“race” nor “national origin” seems to fit the collective self-identification of contemporary
American Jews. Moreover, the very question seems to entrap anyone who would venture
to answer it. This may be the “dilemma of Jewish difference.”2 To address the
mistreatment of Jewish students, one must employ the very conceptual categories (e.g.,
“race”) which have historically created or exacerbated the problem, but refusing to
1
Lillie and Nathan Ackerman Visiting Professor of Equality and Justice in America,
Baruch College, The City University of New York; Senior Research Fellow, Institute for
Jewish and Community Research; former Staff Director, U.S. Commission on Civil
Rights (2004-2008).
2
For a discussion of the “dilemma of difference,” see Kenneth L. Karst, Myths of
Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L.
REV. 263, 324-25 (Dec. 1995).
identify group traits may leave vulnerable populations (like Jews) unprotected from the
affects of bigotry.3
This paper will argue that anti-Semitism can meaningfully be described, for
proposition is defended under each of the four primary methodologies with which a
reviewing court or administrative agency could fruitfully examine the question. These
subjective. The degree to which this conclusion has been resisted over the years, both by
policymakers and by members of the Jewish community, suggests that the examination of
this question has been hindered by certain preconceptions or illusions, which will also be
addressed here, as well as by concerns with what I have called the “dilemma of Jewish
resolving the “dilemma of Jewish difference,” and thus of providing a fully satisfactory
3
Martha Minow develops this argument about the dilemma of difference in The Supreme
Court, 1986 Term: Foreword: Justice Engendered, 101 HARV. L. REV. 10, 21-12 (Nov.
1987).
4
This paper focuses on race, rather than national origin, because the Supreme Court’s
national origin jurisdiction has been more restrictive than its jurisprudence of race. See
Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) (establishing a narrow
conception of “national origin”).
2
In re University of California at Irvine
The question has been given urgency by the extent to which it was recently
flubbed. The OCR’s administrative resolution last year in the landmark case In re
brought against that university in part on the grounds that the relevant allegations do not
failed even to consider well-documented claims that Irvine’s Jewish students faced
In Irvine, the Zionist Organization of America alleged that Irvine has fostered a
hostile environment for Jewish students, in violation of Title VI of the Civil Rights Act of
1964, which prohibits “discrimination because of … race ... [or] national origin” (but not
religion) in programs or activities that receive federal funds. ZOA alleged that Irvine’s
Jewish students have been physically and verbally harassed, threatened, and otherwise
abused; that Jewish property has been vandalized; and that a Jewish Holocaust memorial
was destroyed.
5
OCR Case No. 09-05-2013. This case is discussed at length in Kenneth L. Marcus,
Jurisprudence of the New Anti-Semitism, Wake Forest L. Rev. (forthcoming 2009).
3
to determine whether students of Israeli origin faced anti-Israeli bias. Deciding
that the allegations did not constitute actionable national origin discrimination,
OCR rejected the bulk of ZOA’s claims on the grounds of timeliness, sufficiency
part because it was unwilling to entertain the possibility that anti-Semitism may be
considered, for civil rights enforcement purposes, to be a form of racism. Before 2004,
OCR’s practice had been to decline cases alleging anti-Jewish discrimination.7 Its
primary rationale was that Title VI of the Civil Rights Act of 1964 only prohibits
OCR was reluctant to suggest that Jews should be considered to form a distinct race. In
2004, OCR issued a series of policy statements regarding “complaints of race or national
Muslim, Sikh, and Jewish students.” One such guidance letter informed educational
institutions that OCR would defend members of groups, such as Jews, which exhibit both
6
OCR segregated a small number of claims, relating to recent events, into a separate
investigation, which is still pending.
7
OCR’s anti-Semitism policies are described in Kenneth L. Marcus, Anti-Zionism as
Racism: Campus Anti-Semitism and the Civil Rights Act of 1964, 15 Wm. & Mary B. Rts.
J. 861, 858 (Feb. 2007).
8
42 U.S.C. § 2000(d) (2000).
9
U.S. DEPARTMENT OF EDUCATION, OFFICE FOR CIVIL RIGHTS, TITLE VI AND TITLE IX
RELIGIOUS DISCRIMINATION IN SCHOOLS AND COLLEGES, Dear Colleague Letter from
4
investigate[] alleged race or ethnic harassment against Arab Muslim, Sikh and Jewish
students.”10
More recently, however, Education Department officials have taken a narrow view of
Title VI’s protections which appears to exclude Jews, which has been articulated in somewhat
Thus, under current leadership, OCR will only prosecute anti-Semitism charges “if the
allegations also include” other matters “over which OCR has subject matter jurisdiction.”
had quietly decided not to apply the policy determination made by the first George W.
Title VI’s prohibition of racial or national origin discrimination, except to the extent that
it was based exclusively on the tenet’s of a student’s religious faith. In fact, the racial
aspect of anti-Semitism was considered more important than its national origin
component, because the Supreme Court’s national origin jurisprudence had been
Kenneth L. Marcus, Delegated the Authority of Assistant Secretary of Education for Civil
Rights, dated Sept. 13, 2004, available at
http://www.ed.gov/print/about/offices/list/ocr/religious-rights2004.html
10
Id.
11
Letter of Stephanie Monroe to Kenneth L. Marcus, Staff Director, U.S. Commission on
Civil Rights, dated Dec. 4, 2006, available at http://www.eusccr.com/lettermonroe.pdf.
5
narrower than its jurisprudence of race. The significance of this change in Bush
administration policy is that Jewish students were left with no federal administrative
The notion of Jewish racial difference has a distinctive intellectual pedigree, and
it is both ugly and off-putting to many contemporary observers. The idea of Jewish
nationhood also has an antiquated historical resonance to it, and it is largely inconsistent
with contemporary Jewish self-understandings. In recent years, however, both “race” and
“national origin” have been conceptualized in broad terms to describe ethnic and
ancestral commonalities. It is in this broad sense (and only in this broad sense) that
American Jews have generally subscribed to generally ethnicity and thus to those
constitutional law has tended to define “race” in this broad sense, rather than relying on a
more narrowly biological definition. On the other hand, the Supreme Court has not yet
been given “national origin” an expansive meaning, using instead a more narrowly
colloquial conception of a person’s nation of origin.12 Until the U.S. Supreme Court
12
The Supreme Court has interpreted the term narrowly to address persons who literally
originate from the same nation. In more recent cases, the lower courts have taken a more
flexible approach, finding that ethnic groups can frequently be characterized as “national”
even if they do not presently enjoy national self-determination in any geographical
location.
6
adopts a more expansive interpretation of “national origin,” or Congress acts to prohibit
students largely depend on the extent to which courts and administrative agencies
precisely, under the terms of Title VI of the Civil Rights Act of 1964, the question is
resolution of this question has been complicated in recent years by the ideological and
institutional baggage which various stakeholders have brought to it. This paper will
begin by examining the distinctive perspective which American Jews, career bureaucrats,
and senior political appointees have brought to the issue. Next, this paper will examine
the four different approaches that have been taken to the issue, demonstrating that Jewish
students should be able to avail themselves of anti-racist provisions under any approach.
Jewish Reticence
Jewish Americans have strongly felt emotions about this issue, complicated by
nineteenth century pseudo-science and twentieth century Nazi science. Like other light-
skinned American ethnic groups, many Jews were discomforted by the notion of racial
distinctiveness even before the Second World War. The Holocaust, however, immensely
7
strengthened Jewish resistance to the notion of biological difference.13 As anthropologist
Raphael Patai and geneticist Jennifer P. Wing noted at the beginning of their pointedly
titled treatise on The Myth of the Jewish Race, “[t]he systematic extermination of 6
million Jews by Nazi Germany and its satellites was the culmination of the notion that the
Jews were a race, with distinct inherited physical and mental characteristics, alien to the
Gentile population in whose midst they lived, and overtly or secretly inimical to it.”14
This is not a reason to avoid the question. Indeed, the dilemma of Jewish racial
difference appears when the second sentence of Patai and Wing’s book is considered:
“Modern European racial anti-Semitism, which in the years of World War II led to the
known as ‘racism’…”15 The irony is palpable: Patai and Wing first demolish the notion
of Jewish “race” and then attribute the destruction of Jewry to “racism.” Having
attributed genocidal results to the conceptualization of Jews in racial terms, they appear
“racism.” In order to address this problem of group identity, are we forced to embrace
13
Bat-Ami Bar On and Lisa Tessman, Race Studies and Jewish Studies: Toward a
Critical Meeting Ground, in JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES
(Bat-Ami Bar On and Lisa Tessman, eds.) (2001) at 7.
14
Raphael Patai and Jennifer P. Wing, THE MYTH OF THE JEWISH RACE (Charles
Scribner’s Sons 1975), p. 5.
15
Id.
8
During the last quarter of the last century, the organized Jewish community only
designation, if not overcome, could obstruct efforts to enforce Jewish civil rights. Eric
Goldstein has lucidly explained the process by which the organized Jewish community
evolved from its position of initial reticence in his aptly named book on The Price of
Whiteness. The Shaare Tefila case, Goldstein argues, may be legally important for its
extension of federal civil rights protection to Jews, but it may be even more noteworthy
represented.16 When the Shaare Tefila case was first filed, Goldstein observes, the major
Jewish advocacy organizations were reluctant to support the congregation, because they
did not want to be associated with any effort to characterize the Jewish people in racial
terms. As the National Jewish Community Relations Council explained, “there ought not
to be the suggestion that the Jewish community in any way gives sanction to the notion
Interestingly, however, Goldstein notes that the Shaare Tefila increasingly gained
support from the Jewish establishment as it wound its way through the courts. By the
time the case reached the U.S. Supreme Court, the Anti-Defamation League and the
American Jewish Committee actually submitted amicus curiae briefs arguing that Jews
should be protected from “racial” discrimination. A few years later, the major Jewish
organizations supported this position even more strongly. The issue had arisen again in
16
Eric L. Goldstein explains this point in detail in THE PRICE OF WHITENESS (2006) at
225-26.
9
the wake of the 1991 Crown Heights riots. In an important legal case, Yankel
Rosenbaum, a yeshiva student stabbed during at that time argued that he had been denied
federal civil rights as a Jew, by his African American attacker, Lemrick Nelson.
Goldstein notes that this time, the coalition of groups supporting Rosenbaum’s case
included the American Jewish Congress, the Anti-Defamation League, and the leaders of
the Orthodox, Conservative, Reform and Reconstructionist Movements. These groups all
submitted briefs to the court to rebut Nelson’s argument that Rosenbaum, as a white
person, was not afforded civil rights protection from racial discrimination under the
applicable statute. While none of the organizations believed that Jews actually
constituted a “race” in any scientific sense they agreed that Jews should be recognized
and protected by law as a groups like African Americans or Hispanics. Ultimately, there
were willing to accept the terminology of “race” because it was the only language
available under the applicable statute that could bring Jews under the protection of civil
rights law.
Goldstein observes that “[f]or the first time in their history, American Jews were
not trying to prevent the government from categorizing them as a “race,” but were
nineteenth century civil rights law to be applied by Jews, a ruling Marc Stern, an attorney
17
Id. at 226 (citations omitted).
10
for the American Jewish Congress, called “a very big silver lining.”18 Moreover, this
case together with Shaare Tefila demonstrate that the Jewish community has overcome
its initial reluctance to claim the protection of anti-racism provisions in American law.
Bureaucratic Resistance
OCR officials also approach the question in light of their own bureaucratic and
ideological baggage. Career civil servants tend to be change-resistant, and OCR’s anti-
Semitism policy represents a departure from prior practice. OCR’s liberal careerists (not
Bush Administration policies which seem to advance religious interests. From the
careerist perspective, the Bush Administration’s religious freedom agenda had two
church and state. On the other hand, the Bush Justice Department’s emphasis on
religious liberty litigation was seen as window-dressing for efforts to reduce the
enforcement of civil rights protections for African Americans and Hispanics. The
challenge, then, for those advocating for Jewish students’ rights, has been to demonstrate
that Title VI OCR anti-Semitism enforcement in education is neither less important nor
employment. The EEOC’s duty to combat workplace anti-Semtism has been well-settled
since 1964.
18
Id. at 225-26 (citations omitted).
11
During the Bush Administration, some of OCR’s conservative appointees were,
conversely, wary of statutory interpretations which appear to expand the scope of civil
rights. This took the form, for example, of wariness over expansive “disparate impact”
certain high-stakes educational tests could violate the civil rights of black and Hispanic
school children who preformed less well on them. A George W. Bush Civil Rights
Commission appointee, Jennifer Braceras, argued that this policy approach amounted to
“killing the messenger,” since high-stakes tests only revealed the ethnic disparities in
achievement, rather than creating them.19 Conservatives frequently avoid such expansive
interpretations of civil rights laws, arguing that administrative agencies should merely
apply the laws as Congress passes them, rather than expanding them to fit a more robust
social justice agenda. To such conservatives, it has been important to demonstrate that
the plain language of Title VI, properly construed, prohibits at least certain forms of anti-
Semitism. In other words, it has had to be shown to these officials that this is not an
VI’s racial provisions. This point is lucidly articulated in a recent account by Harvard
anthropologist Mica Pollock of her observations of the agency during the waning days of
19
See Jennifer C. Braceras, Killing the Messenger: The Misuse of Disparate Impact
Theory to Challenge High-Stakes Educational Tests, 55 VAND. L. REV. 1111 (May 2002).
12
the Clinton Administration.20 Pollock observes, correctly, that OCR had long since
shifted the bulk of its efforts from protecting students of color from racial discrimination
in favor of protecting white students from disability rights violations. This is due in part
to legal requirements that OCR establish, under exacting standards, that alleged
first century, this is typically very hard to show. By contrast, as Pollock points out, OCR
is quick to find violations of disability laws, because the legal standards are much
lower.21 OCR’s general historical approach to racial claims has influenced its approach
to Jewish claims under Title VI. The bureaucrats who have resisted extending Title VI to
Jews have not necessarily had a narrow view of what it means to be Jewish. In some
cases, they simply have had a narrow view of what it means to apply Title VI.
Conflicting Approaches
20
See MICAH POLLOCK, BECAUSE OF RACE: HOW AMERICANS DEBATE HARM AND
OPPORTUNITY IN OUR SCHOOLS (2008), 16-21.
21
It should be remembered, despite Pollock’s contrary statements, that OCR conducted
scores of proactive Title VI race-discrimination investigations during the Bush years. For
example, during my tenure as acting agency head, OCR conducted dozens of proactive
reviews of public school districts nationwide to determine why African American and
Hispanic students were disproportionately referred for special education services. In
some cases, the students appeared to have been doubly victimized. Their real problem
was that they had not received adequate reading instruction. When they were not able to
pass reading tests, they were then misdiagnosed with mental disabilities. At the same
time, OCR conducted numerous proactive reviews of school districts to determine
whether English language learners were misdiagnosed for comparable reasons. Hispanic
and other minority children who were not proficient in English are too frequently
mistaken for special needs students. During the middle years of this decade, OCR
investigated these cases nationwide, requiring school districts to establish new policies
and practices to prevent these misdiagnoses.
13
There are at least four principal approaches to addressing this question of whether
subjective. The first approach, favored in recent years by many conservative jurists and
judges, is to consider historically the original intent of the Civil Rights Act. Those who
favor “original intent” argue that, since we are interpreting a federal statute, we should
ask what Congress meant when they passed it. Or at least we should ask how Congress
could reasonably have expected the public to understand it at the time that it was passed.
determine whether Jews are a “race” under contemporary scientific standards. Ideally,
under this approach, policy makers could rely upon a consensus of reputable scientists if
the meaning of such key terms as “race.” Those who take this approach argue that each
successive historical period gives its own meaning to basic constitutional and statutory
terms, and each generation should apply the law on its own terms. Finally, a fourth
on race. Those who emphasize subjective intent argue that it would be perverse to excuse
the anti-Semite of anti-Semitism on the ground that he has not really committed the racist
acts that he imagined because Jews are not a race. As in other areas of law, the
interpretive method that one selects may have a significant influence on the conclusion
that one reaches. For this reason, it may be worthwhile to examine each of these
methods.
14
Was the Civil Rights Act, as originally enacted in 1964, intended to protect
meaning of the Civil Rights Act either as intended by Congress or as publicly understood.
Many jurists support originalism on the ground that it most faithfully applies the law that
Congress actually passed and the President actually signed. Originalists argue that other
approaches undermine the democratic process because they do not enforce the law as it
common understandings replace original meaning, then the meaning of our laws will
Supreme Court has already adopted this approach in deciding, several years ago, that
Congress intended to treat Jews as a “race” within the meaning of an earlier civil rights
statute, the Civil Rights Act of 1866, in order to extend the same protection to Jews that
other minority groups were afforded. The question for originalists is whether a similar
intent motivated Congress a century later when it passed the Civil Rights Act of 1964.
This is a harder question perhaps, but the correct answer is the same.
This U.S. Supreme Court used an originalist method to extend civil rights
protection to the Jewish members and officers of the Shaare Tefila Congregation of
Silver Spring, Maryland, in a landmark decision under the 1866 Act.22 That case has
become the starting point to the legal analysis of Jewish racial identity. On November 2,
22
For an analysis of this case as it applies to the Title VI problem in higher education, see
Kenneth L. Marcus, Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights
Act of 1964, 15 Wm. & Mary B. Rts. J. (Feb. 2007), 861-74.
15
1982, vandals sprayed the synagogue’s outside walls in red and black paint with large
anti-Semitic slogans and symbols, including "Death to the Jude," "Take a Shower Jew,"
and "Dead Jew," swastikas, a skull and cross bones, and Ku Klux Klan symbols.23 When
the Congregation identified the people whom they believed to be the perpetrators, they
sued them in Maryland’s federal district court under a federal civil rights law known as
section 1981. Based on legislation enacted just after the Civil War, Section 1981
provides for recovery of money damages against people who deprive one of certain
constitutional rights on the basis of race.24 The Congregation did not claim that Jews
actually are a biologically distinct race. Instead, it argued that the vandalism “was
Reversing two lower court decisions, the U.S. Supreme Court unanimously held
that Jews, like other ethnic groups, are protected from “racial discrimination” as
prohibited under the Civil Rights Acts of 1866 and 1870.26 On the same day, the Court
also unanimously held in St. Francis College v. Al-Khazraji that Arabs receive the same
23
Shaare Tefila Congregation v. Cobb, 785 F.2d 523, 524 (4th Cir. 1986), rev'd, 107 S.
Ct. 2019 (1987).
24
The Supreme Court had already held that § 1981 applied to acts of racial
discrimination but not to discrimination based on religion. See Runyon v. McCrary, 427
U.S. 160, 167-68, 96 S.Ct. 2586, 2593 (1976).
25
Shaare Tefila, 785 F.2d at 525.
26
Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987).
16
protection under the same nineteenth century statute.27 The Court reached this result by
examining the post-Civil War civil rights statutes to determine “what groups Congress
intended to protect” in 1866 and 1870.28 Reviewing the legislative history, the Court
found that the congressional record was replete with references to Jews, Scandinavians,
In a nod to “public meaning,” the Court noted that this usage conformed to the usage of
the term “race” in countless contemporaneous dictionaries and reference books.30 Based
on this history, the Court concluded that “Congress intended to protect from
Congress intended to protect these groups from discrimination based on their “ancestry or
ethnic characteristics,” the Court held that actions taken against these groups are “racial
While this approach yields a positive result when applied to the nineteenth
century, would it yield the same result when applied to twentieth century legislation?
27
481 U.S. 604 (1987).
28
St. Francis College, 481 U.S. at 612-613.
29
St. Francis College, 481 U.S. at 612-13.
30
Id. at 610-11.
31
Id. at 613.
32
Id.
17
Some have argued that the same rule would produce the opposite result when applied to
the Civil Rights Act of 1964. For example, the University of California’s lawyers have
argued in Irvine that the Court’s ruling that Jews are a race was limited to its review of
the way in which the term “race” was used in 1866. By 1964, Irvine maintains, race
theory had changed dramatically, and Jews were no longer considered to be a race.33 As
this argument goes, the logic of the Shaare Tefila case is to extend civil rights coverage
only to those groups which Congress intended to cover at the time of each statute’s
enactment, interpreting any ambiguous terms according to the manner in which Congress
used them and the public understood them at the time. In other words, since Jews were
conclude that they were not among the groups that Congress intended to shield from
The problem with this argument is that it ignores Congress’s broader intent in
passing the Civil Rights Act of 1964.34 If the congressional intent, or original public
meaning, of Title VI was to recognize a new set of rights against racial discrimination,
meaning which Congress gave to those rights in 1964. In fact, that was not Congress’s
intent in passing Title VI. Rather, those congressmen who advocated passage of Title VI
explained very clearly that they were merely establishing an enforcement mechanism to
33
U.S. Commission on Civil Rights, CAMPUS ANTI-SEMITISM, p. 17 (statement of D.
Geocaris).
34
This point is explained in greater length in Marcus, Anti-Zionism as Racism, at 866-67.
18
protect rights that were already established in the Fourteenth Amendment to the U.S.
Constitution. Senator Hubert Humphrey, for example, explained that “the bill bestows no
new rights” and only seeks “to protect the rights already guaranteed in the Constitution of
the United States, but which have been abridged in certain areas of the country.”35
Senator Abraham Ribicoff was even more explicit: “Basically, there is a constitutional
restriction against discrimination in the use of Federal funds; and [T]itle VI simply spells
out the procedure to be used in enforcing that restriction.”36 This point must have been
an important one, since it was reiterated by numerous other congressmen during floor
debate, including Senators Claiborne Pell, Gordon Allott, Joseph Clark and John Pastore,
Representatives. 37 For this reason, the Supreme Court has long recognized that Title VI
effected what Justice Lewis Powell called the “incorporation of a constitutional standard”
racial discrimination, rather than creating a new right against such mistreatment, an
originalist analysis must ask whether Jews were among the groups which Congress
35
110 CONG. REC. 5252 (statement of Sen. Humphrey).
36
Id. at 13,333.
37
See id. at 7064 (Pell), 12,677 (Allott), 5243 (Clark), 7057 (Pastore), and 1519 (Celler);
see generally Marcus, Anti-Zionism as Racism, pp. 866-67 (providing extensive
quotations).
38
Regents of the University of California v. Bakke, 438 U.S. 265, 286 (1978) (Powell, J.,
op.).
19
intended to protect at the time that it enacted that amendment. Fortunately, the heavy
lifting for this analysis was already done by the Supreme Court in St. Francis College. In
that case, the Court recognized (albeit in dicta) that “discrimination … on the basis of
ancestry violates the Equal Protection Clause of the Fourteenth Amendment.”39 Indeed,
it could not be otherwise. The Fourteenth Amendment was ratified July 9, 1968. This
happened so quickly after the Civil Rights Act of 1866, that it is inconceivable that racial
theory could have changed in the intervening months. Since Congress intended for the
anti-racism provision in the 1866 Act to protect Jews as well as blacks, the anti-racism
aspect of the Equal Protection Clause must have had the same meaning. Given the
paucity of legislative history to explain the meaning of the Equal Protection Act, legal
historians consider the 1866 Act to be the best guide to the meaning of that clause.40
Moreover, there is an even stronger reason for interpreting the Equal Protection
Clause consistently with the 1866 Act. One of Congress’s principal motivations in
enacting the Equal Protection Clause was the urgent desire of many of its members to
provide a stronger constitutional foundation for the 1866 legislation.41 The 39th Congress
had passed the 1866 Act largely under the authority of the Thirteenth Amendment, which
prohibited slavery. At the time, many people questioned whether the Thirteenth
39
Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 n.5 (1987) (citations omitted).
The Equal Protect Clause provides that “No state shall … deny to any person within its
jurisdiction the equal protection of the laws.”
40
See, e.g, Rebecca E. Zietlow, Juricentrism and the Original Meaning of Section Five,
13 TEMP. POL. & CIV. RTS. L. REV. 485, 505 (2004).
41
See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 362 (2005).
20
Amendment provided an adequate basis for supporting the act. Opponents vigorously
argued that the 1866 Act was unconstitutional. Even some supporters of the goals of the
1866 Act, such as Congressman Bingham, believed that the statute was
unconstitutional.42 It was this doubt which led civil rights advocates to push for
enactment of a constitutional amendment which would insulate the 1866 Act from legal
challenge. This was the reason for which Bingham played a central role in promulgating
he would “gladly do what I may to incorporate into the Constitution provisions which
will settle the doubt which some gentlemen entertain upon” the constitutionality of the
1866 Act.
Given that the Equal Protection Clause was promulgated in no small part in order
to provide a constitutional provision for the 1866 Act, it stands to reason that the
protections that it affords can be no less broad than those provided under the act. For this
further reason, it is clear that the groups which received protection against racial
discrimination in 1866 were also protected by the Equal Protection Clause’s equally
broad protections in 1866. Since the purpose of Title VI was merely to enforce the rights
established under the Equal Protection Clause, the scope of its protections are at least
commensurate with those established in 1866. For this reason, when Congress
determined that Jews are protected against racial discrimination under the 1866 Act, its
42
See William J. Rich, Taking “Privileges or Immunities” Seriously: A Call to Expand
the Constitutional Cannon, 87 MINN. L. REV. 153, 185 (2002).
43
Id. at 185.
21
holding applies in full measure to both the Equal Protection Clause and to Title VI of the
Civil Rights Act of 1964. The Court’s originalist approach in Shaare Tefila extends
Jewish students the same degree of protection under all of these provisions, because they
were to eschew the Shaare Court’s originalism? Are Jews a “race” under other theories
which the courts might adopt? Suppose that a later court rejected the Rehnquist Court’s
There are certainly reasons for which other judges, even if sympathetic to the
plight of Jewish students, might reject originalism in this context. Martha Minow has
argued that the Court’s “historical test” for membership in a minority race under Shaare
Tefila “effectively revitalized not just categorical thinking in general, but the specific
categorical thinking about race prevailing in the 1860's.” 44 As Minow observes, and as
the Shaare Tefila opinion acknowledges, the Court’s approach belies the considerable
44
Martha Minow, The Supreme Court, 1986 Term: Foreword: Justice Engendered,
101 HARV. L. REV. 10, 21 (Nov. 1987)
22
changes in scientific understandings of human difference. 45 One danger in this reliance
on historical attitudes is that it may reinforce retrograde social thinking: “Whether the
issue is gender, religion, or race, reviving old sources for defining group difference may
reinvigorate older attitudes about the meanings of group traits.”46 While these “older
attitudes” may lead to stronger protections in some areas, they may also lead to weaker
protection in others. One could argue, following upon Minow’s observation, that twenty-
first century jurists should not develop contemporary civil rights law upon a foundation
that perpetuates retrograde racial attitudes. One obvious potential alternative would be to
In other words, does modern scientific theory indicate that Jews are members of a
distinct racial group? The answer to this question may not be as obvious as it appears.
virtually all theories of biologically distinct races have been widely rejected. To the
extent that race is now considered to be a socially constructed phenomenon, the question
becomes whether Jews have been socially constructed as racially other. The answer to
this question, historically and globally, is almost certainly affirmative. In the twenty-first
45
Id. at 22.
46
Id. at 21-22.
23
The scientific approach has been used as a means of denying civil rights
protections to Jews. Indeed, this would have been the result in the Shaare Tefila case if
the decision of the trial court had been upheld. Before the trial in that case, Judge
Norman P. Ramsey had dismissed the Congregation’s claims, explaining (in part) that
actually affirmed that dismissal, noting that “the Congregation maintains that Jews are
As both Kenneth Karst and Martha Minow observes, this case illustrates “‘the dilemma
understanding would provide a better basis for deciding the question as to whether anti-
Semitism is racial discrimination. The scientific approach is appealing to those for whom
it is important that legal determinations always rely upon the best available knowledge
this notion, then it is folly to ignore its lessons and to rely instead upon unscientific views
47
Shaare Tefila Congregation v. Cobb, 606 F. Supp. 1504, 1508 (D. Md. 1985), rev'd,
107 S. Ct. 2019 (1987).
48
Shaare Tefila, 785 F.2d at 526.
49
Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and
Sexual Orientation, 43 UCLA L. REV. 263, 324-25 (Dec. 1995).
24
Few academic approaches are more discredited than the old scientific racial
theory that characterized Jews as members of a distinct racial group. Indeed, thirty-four
years ago, Patai and Wing set any remaining doubts to rest in THE MYTH OF THE JEWISH
RACE. After all, as a column in The Jewish Daily Forward recently observed, “[T]here
are no DNA sequences common to all Jews and absent from all non-Jews [and] [t]here is
Yet to conclude that there exists a legitimate category of “racial” groups which excludes
Jews is not sustainable either. It is not correct, for example, to conclude as Rabbi Hayim
Donim has, that “Jews obviously do not constitute a race (for race is a biological
designation)...”51 The reasons for which Jews are said not to constitute a “race” apply
equally to all other groups, which is one reason why race is no longer considered to be a
The scientific community has increasingly rejected the validity of the concept of
race as it recognized that there is more genetic variation with any population group (or
“race”) than between two groups taken as a whole.52 In other words, the vast majority of
genetic material shows no racial distinction. More than half a century ago, the United
50
Robert Pollack, The Foreward, June 10, 2005.
51
RABBI HAYIM DONIM, TO BE A JEW: A GUIDE TO JEWISH OBSERVANCE IN
CONTEMPORARY LIFE (1991) p. 9.
52
Lisa Tessman, Jewish Racializations: Revealing the Contingency of Whiteness, in
JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES (Bat-Ami Bar On and Lisa
Tessman, eds.) (2001) at 134.
25
scientists, led by Columbia anthropologist Ashley Montagu, to address the question of
race. This group’s manifesto, styled “The Statement of Race,” announced that
“[s]cientists have reached the general agreement that mankind is one: that all men belong
The theory that “race” is merely a social construct does not, however, foreclose
inquiry into whether Jews constitute a distinct “race.”54 In light of contemporary racial
theory, the question becomes whether Jews have been socially constructed (or
field of “whiteness studies,” have argued that Jews were socially constructed as a racially
distinct group during in various times and places. Historically, Jews have been variously
perceived as black, Asian, or white, depending on the nature of the perceiver’s bias.
Sander Gilman has shown that for centuries in Europe, Jews were considered to be non-
White.55 Specifically, they were considered to be black, since they were understood to
have intermarried with Africans. In the 1780’s one writer expressed this perception:
“There is no category of supposed human beings which comes closer to the Orang-Utan
than does a Polish Jew….Covered from foot to head in filth, dirt and rags…the color of a
53
JON ENTINE, ABRAHAM’S CHILDREN: RACE, IDENTITY, AND THE DNA OF THE CHOSEN
PEOPLE (Grand Central Publishing 2007) at 250-51.
54
The implications of Jewish racial construction for civil rights theory are discussed in
greater detail in Kenneth L. Marcus, Jurisprudence of the New Anti-Semitism, WAKE
FOREST L. REV. (forthcoming 2009).
55
SANDER GILMAN, THE JEW’S BODY (1991) at 172.
26
Black.”56 Gilman concludes that, “Being black, being Jewish, being diseased, and being
‘ugly’ come to be inexorably linked.”57 In the United States, by contrast, Jews were
Wendell Homes’s At the Pantomime (1874): “Amidst the throng the pageant drew/Were
women, orient-eyed.”59
These perceptions are no longer widely shared in the United States, or anywhere
in the world, as Jews are now widely considered to be “white.” Some people may
purposes). Others may perceive Jews to be “white” based upon social or political
analysis. James Baldwin, for example, wrote that, while the Jew has suffered abroad, in
the U.S., his “only relevance is that he is white.”60 In the new field of “whiteness
studies,” it is often maintained that Jews (and other non-Anglo-Saxon immigrant groups)
56
Id. at 172.
57
SANDER GILMAN, THE JEW’S BODY (1991) at 173.
58
Robert Singerman, The Jew as Racial Alien: The Genetic Component of American
Anti-Semitism, in Anti-Semitism in American History (David Gerber, ed.) (1986).
59
Quoted in Jacobson, Whiteness of a Diffrerent Color, p. 5.
60
James Baldwin, Negroes Are Anti-Semitic Because They’re Anti-White in BLACK ANTI-
SEMITISM AND JEWISH RACISM (1968) (Nat Hentoff, ed.) at 10.
27
became racialized as “white” during the middle period of the last century.61 Indeed, one
such volume is entitled, “HOW JEWS BECAME WHITE FOLKS AND WHAT THAT SAYS
62
ABOUT RACE IN AMERICA.”
revisionists. Some have pointed out that the assumption of Jewish whiteness ignores the
diversity of global Jewry, which includes converts, persons of mixed ancestry, and
estimation, at least 20% of the American Jewish community consists of African, African
American, Hispanic, Asian, Native American, Sephardic, Mizrahi, bi-racial and multi-
Even the Jew who looks white on New York City’s Upper West or Lower
East Side may look quite the opposite in Maine or Colorado. Besides,
what happens when you speak your (Jewish-sounding) name, or when
your (less-white-looking) parent or child or lover meets you at work?
What happens to your whiteness when you enter a Jewish space: a
61
See, e.g., MATTHEW FRYE JACOBSON, WHITENESS OF A DIFFERENT COLOR (1998), p.
172.
62
KAREN BRODKIN, HOW JEWS BECAME WHITE FOLKS AND WHAT THAT SAYS ABOUT
RACE IN AMERICA (Rutgers 1999).
63
For a comprehensive discussion of these and other diverse elements within the Jewish
community, see Diane Tobin, Gary A. Tobin & Scott Rubin, IN EVERY TONGUE: THE
RACIAL & ETHNIC DIVERSITY OF THE JEWISH PEOPLE (2005); see also Melanie
Kaye/Kantrowitz, THE COLOR OF JEWS (2007) .
64
TOBIN, TOBIN & RUBIN, IN EVERY TONGUE at 21.
28
synagogue, Judaica bookstore, klezmer performance, or Jewish
community center?65
Similarly, some commentators argue that the concept of Jewish “whiteness” is inherently
ahistorical and parochial in the sense that a broader global and historical view would
reveal a more complex picture. For example, Katya Gibel Azoulay maintains that, “[t]he
tendency of most – though not all – American Jews to refer to themselves alternatively as
‘white’ and as ‘Jewish’ witnesses a collective amnesia of the roots of the Jewish people
in the East.”66 More strongly, Michael Lerner has argued that “[t]he linguistic move of
substituting ‘people of color’ for ‘oppressed minorities,’ coupled with the decision to
refer to Jews as ‘Whites,’ becomes an anti-Semitic denial of Jewish history.”67 For this
reason, Lerner has argued that “Jews must respond with [a] determined insistence that
were are not white, and that those who claim we are and exclude our history and
literature from the newly emerging multicultural canon are our oppressors.”68
In response to Lerner, Bat-Ami Bar On and Lisa Tessman argue that this
historical approach to Jewish racial construction raises certain political concerns. They
concede that thinking historically and globally is “absolutely necessary for fully
65
Melanie Kaye/Kantrowitz, Notes from the (Shifting) Middle: Some Ways of Looking at
Jews, in JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES (Bat-Ami Bar On
and Lisa Tessman, eds.) (2001) at 115.
66
Katya Gibel Azoulay, Jewish Identity and the Politics of a (Multi) Racial Category, in
JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES (Bat-Ami Bar On and Lisa
Tessman, eds.) (2001) at 7 at 97.
67
Michael Lerner, THE SOCIALISM OF FOOLS: ANTI-SEMITISM ON THE LEFT (1992) at 123.
68
Michael Lerner, Jews are not White, Village Voice 33 (May 18, 1993).
29
understanding present locations.” 69 Nevertheless, they argue that it can also distract
from the very real problems of discrimination that face other ethnic and racial groups. In
their words, “thinking historically and globally” about Jewish racial construction can
“become a mechanism for evading – for those of use who live and carry out our
antiblack racism, that surround us.”70 In this way, Bar On and Tessman argue that
the conclusions to which they would otherwise be drawn. Ironically, Bar On and
Tessman concede that the political calculation may be more difficult than it appears.
They acknowledge, for example, that Melanie Kaye/Kantrowitz has reached conclusions
similar to Lerner’s (and Azoulay’s) for reasons that are consistent with Bar On and
Tessman’s avowed political goals. Kaye/Katrowitz, for example, has argued that the
“desire to identify with whiteness, as well as bigotry and fear, blocks solidarity.”71
Tessman responds that identification with whiteness need not reduce cross-racial
solidarity if it comes as a result of “simply acknowledging that one cannot help but be
69
Bat-Ami Bar On and Lisa Tessman, Race Studies and Jewish Studies: Toward a
Critical Meeting Ground, in JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES
(Bat-Ami Bar On and Lisa Tessman, eds.) (2001) at 5.
70
Bat-Ami Bar On and Lisa Tessman, Race Studies and Jewish Studies: Toward a
Critical Meeting Ground, in JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES
(Bat-Ami Bar On and Lisa Tessman, eds.) (2001) at 5.
71
Melanie Kaye/Kantrowitz, Jews, Class, Color, and the Cost of Whiteness, in The Issue
is Power (1992) at 145.
30
white when any other way of identifying oneself racially would be publicly
implausible.”72
colored social theories of Jewish racial construction, the critics of Jewish whiteness
theory have identified a material weakness in the conventional narrative. The notion that
Jews “became white” like other ethnic groups during the twentieth century ignores the
relative ambivalence with which Jews have accepted and been accepted into the
boundaries of cultural whiteness. Significantly, Eric Goldstein chose not to frame his
recent book on Jewish racial construction “as a study of how Jews became white, but as
one that explores how Jews negotiated their place in a complex racial world where
Jewishness, whiteness, and blackness have all made significant claims on them.”73
Goldstein explains that the entrance of Jews into the white mainstream did not resolve the
“persistent … tensions between whiteness and Jewishness.”74 For all the “white
privilege” that Jews have achieved, the veneer of whiteness has not conclusively
72
Lisa Tessman, Jewish Racializations: Revealing the Contingency of Whiteness, in
JEWISH LOCATIONS: TRAVERSING RACIALIZED LANDSCAPES (Bat-Ami Bar On and Lisa
Tessman, eds.) (2001) at 141.
73
Eric L. Goldstein, THE PRICE OF WHITENESS (2006) at 5.
74
Id. at 4.
31
phenomemon by characterizing Jews as “off-white.”75 Regardless of the precise
formulation, it is at least arguable that modern social scientific theory supports the
characterization of Jews as something racially other than white. The nature of this
contemporary race theory. Long constructed as racially “other,” the relatively recent
demonstrates. For this reason, it is not a stretch to suggest that contemporary social
scientific theory provides at least a potential basis for Jewish anti-racist claims.
consensus on the social construction of race is less well settled on this issue than it is
among, say, social scientists or lawyers, whose views on the subject may be lagging
indicators. Recent genomic advances have led some scholars to renew the question of
race, questioning whether scientists were too quick to dismiss the reality of phenotypic
difference. In recent years, some geneticists have argued that numerous genetic
characteristics are significantly more common among persons of Jewish ancestry than
among gentiles. In particular, some scientists have noted genomic similarities among
Ashkenazic Jews, which will increasingly have relevance for medical research and health
chromosome similarity – that is, similarity along the DNA source that determines male
sex -- among Jewish men from all over the world. At the same time, the studies have
found a much lower degree of Y-chromosomal similarity when the comparison is made
75
Charles Mills, THE RACIAL CONTRACT (1997).
32
between Jews and non-Jews from nearby geographical locations.76 Interestingly, the only
place where Jewish Y-chromosomes reflect the native gentile populations as closely as
they match other Jews is in the Middle East. This is exactly what might expect of a
makeup of Cohanim, or people who claim desendence from Judaism’s ancient priestly
class, among both Ashkenazi and Sephardic communities. More than half the Cohanim
studied share a chromosomal type now known as the Cohen Modal Haplotype.77
(56 percent) and also of the Ashkenazi (46 percent).78 Moreover, it turns out that
Cohanim from both communities share not only one chromosome type but also a cluster
and 61 percent of the Sephardi individuals who claim membership in the Cohanim share
halotypes within the modal cluster.79 This is particularly remarkable in light of the long
period of time during which the two communities developed separately. Genetic analysis
suggests that the shared ancestor at the onset of the Jewish priestly line probably lived
76
See Hillel Halkin, Jews and Their DNA, COMMENTARY (Sept. 2008) at 37.
77
See DAVID B. GOLDSTEIN, JACOB’S LEGACY: A GENETIC VIEW OF JEWISH HISTORY at
31 (2008).
78
See DAVID B. GOLDSTEIN, JACOB’S LEGACY: A GENETIC VIEW OF JEWISH HISTORY at
31 (2008).
79
See DAVID B. GOLDSTEIN, JACOB’S LEGACY: A GENETIC VIEW OF JEWISH HISTORY at
32 (2008).
33
approximately three thousand years ago at approximately the time when Solomon was
said to have built the First Temple in which the priests would serve.80 Indeed, recent
advances have led one prominent geneticist to observe, provisionally, that is now possible
“to predict accurately those individuals claiming Jewish ancestry on the basis of their
genetic composition alone.”81 While the older scientific race theories will never be
reclaimed, the social constructionist orthodoxy may have reached its peak. In other
words, if science begins once again to recognize racial distinctions among population
The third approach is to address this question in terms of the meaning that
evolving social attitudes have breathed into them. Laurence Tribe has influentially
advocated this approach. As Tribe recently described his view of the Constitution, “all of
its text and structure must be understood with an eye to its unfolding history – to the
history of events and attitudes that might help explain the ends Congress sought to
achieve…”82 In the same way, many scholars approach statutory texts in light of the
meaning that supervening events and developing attitudes bring to them. In this light, the
80
See DAVID B. GOLDSTEIN, JACOB’S LEGACY: A GENETIC VIEW OF JEWISH HISTORY at
38 (2008).
81
See DAVID B. GOLDSTEIN, JACOB’S LEGACY: A GENETIC VIEW OF JEWISH HISTORY at
117 (2008).
82
Laurence H. Tribe, The Invisible Constitution, Oxford University Press 2008, p.65
(emphasis omitted).
34
question as to whether anti-Semitism is “discrimination…because of race,” would be
provisions of the Civil Rights Act of 1964, has been interpreted under evolving social
attitudes. Title VI does not prohibit sex discrimination.83 However, Title VII of that
since the ’64 Act’s inception. From time-to-time, the courts have had to interpret the
meaning of sex discrimination under this statute, as emerging social issues have been
litigated in the courts. The manner in which they have undertaken this task has traced the
evolving social attitudes towards sex over the last half century.
For example, in the 1970’s, the courts had to decide whether sexual harassment
was a form of “discrimination.” At that point, it was not clear whether even quid pro quo
harassment – where a boss pressures a subordinate for sexual favors in exchange for
who accepts this perverse proposition could be said to receive a benefit; moreover, if
83
Surprisingly, discrimination in federally funded educational programs and activities
was not prohibited until 1972. In that year, Congress passed Title IX of the Education
Amendments Act, which now also known as the Patsy Mink Act. Although Title IX is
now best known for its use in ensuring gender equity in athletics, it also prohibits the full
range of “discrimination…because of sex” in colleges and in public schools.
35
most co-workers of the subordinate’s gender were not propositioned, it could be argued
Significantly, Congress had said nothing about “harassment” when drafting the
Civil Rights Act. Moreover, the legislators who added “sex” to the list of prohibited
classifications under Title VII were not trying to protect women from discrimination.
Instead, they were segregationists who believed that their amendment would be so
unpopular that it would prevent passage of the bill as a whole. The prohibition of sex
MacKinnon, who argued that workplace sexual harassment should be considered a form
of sex discrimination under emerging norms of fairness.84 Indeed, the Court later applied
Later, the courts had to consider whether same-sex sexual harassment cases could
were of the same sex, it was argued, then the harassment, no matter how objectionable in
moral terms, should not be considered to fall within the category of conduct prohibited by
Title VII’s sex discrimination provision. Here again, the courts needed to reconsider
84
MacKinnon presented her most influential formulation of this successful claim in
Catherine A. MacKinnon, SEXUAL HARASSMENT OF WORKING WOMEN (YALE
UNIVERSITY PRESS, 1979).
36
what was meant by the phrase “discrimination because of … sex.” The answer was not
provided in the original statute, or in the legislative history, or in the early cases decided
under the statute. Nevertheless, the U.S. Supreme Court ultimately decided that same-sex
sexual harassment, like opposite-sex sexual harassment, is prohibited under Title VII.
This decision was based upon evolving understandings of what it means to face sexual
A similar problem arose, when a woman argued to the Supreme Court that she
faced workplace hostility because she did not conform to traditional stereotypical notions
of proper female behavior. The Court accepted her argument, creating the new category
of “gender identity” discrimination. In the future, the Court will need to decide whether
of…sex.” This almost certainly is not what the framers of Title VII had in mind.
Nevertheless, it is entirely possible that a future Court will accept the notion that this
form of “gender identity” discrimination is also prohibited under our evolving beliefs
As the proverbial Jewish grandmother would have asked, “Alright, but is it good
for the Jews?” In other words, how would this analysis work if it were applied to anti-
Semitism? The answer is not intuitively obvious, since the contemporary meanings
approach could cut in either of two ways. While social understandings of sex have
expanded over the years, social understandings of race have arguably narrowed. When
the Equal Protection Clause was enacted, the term “race” was so widely defined as to
37
encompass Jews, Arabs, and many other groups now considered to be white ethnics. As
the “gender” category has expanded, however, the “racial” category has contracted. For
blacks, Asians, native Americans, and (sometimes) Hispanics. Under this typology,
which underlies contemporary federal racial policy, Jews are attributed no racial status of
their own. In most cases, they are relegated to the category of “whiteness.” Some argue
that this has been a source of enormous social privilege, but it is also potentially a barrier
policy continues to adhere to this typology, it has been universally rejected by the
scientific community and may be accepted by the public only as a short-hand for the
more complex characteristics which define the various population groups. Many
Hispanics, certainly, reject efforts to characterize them as a distinct racial group. The
increasing numbers of multi-racial persons also frequently reject the standard categories.
Ethnic Groups, has characterized this typology as arbitrary, unscientific, and derivative of
nineteenth century white supremacist ideology.85 Indeed, these categories have been
criticized by so many groups, and from so many perspectives, that it may seem that they
are accepted only by federal policymakers and by those who must conform to their work.
85
See Stephan Thernstrom, “The Demography of Racial and Ethnic Groups,” in Abigail
Thernstrom and Stephan Thernstrom, BEYOND THE COLOR LINE: NEW PERSPECTIVES ON
RACE AND ETHNICITY IN AMERICA (Hoover Institution Press 2002), pp. 13, 15-18.
38
In some respects, “ethnicity” has taken the place of the largely discredited notion
of “race.” While few people still believe that Americans are divided into five
biologically distinct racial groups, it is not uncommon to speak of ethnic divisions among
categorization, distinct from the terms “race” and “ethnicity” as they appear in the Civil
encompassed within the terms “race,” “color,” and “national origin.” It is for this reason
that one congressional sponsor rejected the idea that “ethnicity” should be added to the
legislation on the ground that it was already tacitly included. Arguably, the notion of
“race” has actually expanded over time, just like the term “sex” or “gender”; while the
conducted, although not previously published, by the Institute for Jewish & Community
Research. That survey data demonstrates that both Jewish and non-Jewish American
ethnic group and a religion. Very few Jewish Americans, and very few academics,
39
Subjective Intent
What the preceding three approaches have in common is that they all require the
victims to demonstrate that their group identity is protected as a “suspect class.” This
difference” – but also because it exposes the victims to a second form of attack, a kind of
“identity theft,” which takes place within the judicial court or administrative agency. The
victims is required to defend, before a skeptical authority, their group identity in the face
of an alleged perpetrator who is given a legal incentive to challenge the victim’s claim to
membership in the sort of “suspect class” to whom Congress has afforded protection. It
is largely for this reason that Kenneth Karst has castigated the very concept of “suspect
lexicon.”86
The fourth approach asks a different kind of question which is intended to avoid
this very problem. Instead of asking whether Jews are a “race” within the meaning of the
relevant statutory authority, this approach asks whether the discriminator targeted Jewish
victims based upon the perpetrator’s own subjective racial (mis)perceptions. Suppose,
for example, that a hateful person should harass Jews based upon a misperception of
Jewish racial inferiority. Under this “subjectivist” view, the perpetrator as discriminated
86
Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and
Sexual Orientation, 43 UCLA L. REV. 263, 325 (Dec. 1995).
40
“because… of race,” even if history, scientific evidence and common usage suggest that
Jews do not form a race. As Karst argues, “recognition of the metaphoric quality of race
some race - or, as some statutes say, he acts on ‘account of’ or ‘because of’ the victim's
race. “87 The perpetrator may have a conception of race that is scientifically incorrect and
inconsistent with both enlightened and popular usage, and he may misperceive his
victim’s actual characteristic, yet he may still deserve be punished for racial
appeals court decision affirming the dismissal of the Shaare Tefila case. Wilkinson’s
dissent prefigured the subsequent reversal of that court’s decision by the Supreme Court,
although Wilkinson’s rationale was different from the theory that the High Court
ultimately adopted. Wilkinson argued that federal civil rights statutes protect even
against racial discrimination which is based only on the “subjective, irrational perceptions
misperception to provide their own defense.89 For this reason, he concluded that what he
called the “erroneous but all too since view of defendants that Jews constitute a separate
87
Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and
Sexual Orientation, 43 UCLA L. REV. 263, 326-7 (Dec. 1995).
88
Shaare Tefila, 785 F.2d at 528 (Wilkison, J., dissenting).
89
Id.
41
race worthy of humiliation and degradation” is sufficient to bring the claim with the
applicable statues.90 Wilkinson observed that this focus on the subjective intent of the
Thus, while Wilkison agreed with his appellate colleagues, the district court and counsel
that “Jews are not, under any legitimate view, a distinct view,” he nevertheless concluded
The task of elucidating this subjective intent test was shared with the other court
which was considering, at about the same time as the Shaare Tefilah case, the claim
brought by Majid Ghaidan Al-Khazraji, an Iraqi American professor who alleged that he
was denied tenure at St. Francis College in Loretto, Pennsylvania on the basis of his
(“Arabian”) race.91 Al-Khazraji sued the college under both Title VII of the Civil Rights
Act of 1964 and section 1981, claiming that his tenure denial was based on "bias,
prejudice and discrimination."92 The two trial judges who heard motions on this case
took different positions on whether Arabs could claim “race” discrimination: the first
held that they could, while the second held that they could not.93 Before the Court of
Appeals, St. Francis College argued that “an ethnic Arab is taxonomically a Caucasian
and therefore ‘not a protected person under Section 1981 when he is presumably claiming
90
Id.
91
Al-Khazraji v. Saint Francis College, 784 F.2d 505 (3d Cir. 1986), aff'd, 107 S. Ct.
2022 (1987).
92
Al-Khazraji, 784 F.2d at 507.
93
Al-Khazraji, 784 F.2d at 508-509.
42
other Caucasians or whites were improperly favored over him.’"94 The court disagreed,
holding that ethnic Arabs may depend upon Section 1981 to remedy racial discrimination
against them.”95 Recognizing that Arabs are considered to be members of the Caucasian
race, the court nevertheless held that they may face racial discrimination in favor of other
white people.96 Applying a scientific definition of racism, the court announced that,
plaintiff comes into federal court and claims that he has been discriminated against
because of his race, we will not force him first to prove his pedigree,” the Court of
Appeals reversed the lower court’s dismissal, sending the case back to give the plaintiff
an opportunity to prove to the trial court that his mistreatment was based upon the
The problem with this approach, however, is that it is often difficult to discern a
distinctly racial animus within the complex animus faced by Jews. Given the peculiar
social stigma which has been attached to explicit racism since World War II, racial
motivations are typically hidden by even the most flagrant bigots. Moreover, most
commentators agree that anti-Semitism has mutated over the last half century, and that it
94
Al-Khazraji, 784 F.2d at 514.
95
Al-Khazraji, 784 F.2d at 514.
96
Al-Khazraji, 784 F.2d at 514.
97
Al-Khazraji, 784 F.2d at 517.
43
frequently manifests as a political antagonism against the Jewish state those connected to
it through blood, faith or conviction. In fact, however, each successive form of anti-
Semitism continues to carry within it the remnants of its predecessors. “In other words,”
as the philosopher Bernard-Henri Lévy has observed of Jew-hatred, “all the old forms
persist.”98 Since at least the time of the Spanish inquisition, however, anti-Semitism has
had a racial element. During the nineteenth century, anti-Semitism tended to shift from
Wilhelm Marr and his colleagues.100 German racialist anti-Semitism continued, however,
to propagate long-standing religious stereotypes about the Jewish people. In the same
rallies routinely voice the same anti-Semitic canards that their near and distant ancestors
might have used. Given the interconnection of the various forms of anti-Semitism, it
racist anti-Semitic conceptions. In the twenty-first century, as before, those who engage
in anti-Jewish conduct act upon a complex compound of ethnic, religious, racial and
political hatred.
Conclusion
98
BERNARD-HENRI LÉVY, LEFT IN DARK TIMES: A STAND AGAINST THE NEW BARBARISM
(Random House 2008) at 154.
99
WALTER LAQUEUR, THE CHANGING FACE OF ANTI-SEMITISM: FROM ANCIENT TIMES TO
THE PRESENT DAY (2006) at 91.
100
Id. at 21.
44
Whether the issue is addressed in historical, scientific or sociological terms,
Jewish American students have strong claims to the protections of the anti-racism
protections contained within the Civil Rights Act of 1964. Despite initial misgivings, the
organized Jewish community has now long-since recognized that such protections are
misgivings were not irrational, as most approaches to the question require Jews to choose
between loss of basic rights or adherence to a conceptual framework which has had
ultimately correct, even if it has not yet been fully adopted: to assert anti-racist
protections on the grounds that the intent of their discriminators is subjectively racist
Jewish students have strong claims to racial protections even under the three
Currently, the Supreme Court addresses such questions under an “originalist” approach
which requires historical investigation of the original public meaning of the term “race”
in applicable statutory materials. Under this theory, some have challenged whether Jews
are protected under the 1964 Act, because Jews were not considered to be members of a
protected “race” at the time when that legislation was passed. Those historical
among the groups protected under Title VI of that legislation, because the ’64 Act was
45
devised to enforce rights created under nineteenth century legislation which (as the
The historical approach used in this theory has been criticized, in part, on the
ground that it ignores advances made by scientific theory. Paradoxically, Jews could be
denied protection under a “scientific” approach on the ground that contemporary science
rejects the notion of a biologically distinct Jewish race. This “scientific” challenge,
however, misstates contemporary science. In recent years, many scientists have rejected
the existence of human races that a meaningfully distinct biologically. For this reason, it
distinctiveness which other groups can claim. For this reason, it is difficult or
impracticable to apply modern scientific theory to civil rights enforcement. To the extent
construction. From this perspective, Jews have historically and globally been
“racialized” as a group separate from Western European whites. In recent years, this
who have long negotiated a process of “becoming white.” Recent social scientific
complete or uncomplicated and that American Jews may still be construed as something
other than fully white. Moreover, recent advances in genomic science have led some
geneticists to argue that the commonalities among large numbers of Jews may be greater
than is often assumed. For all of these reasons, the scientific argument against Jewish
46
The historical and scientific understandings both downplay contemporary public
history, or the resolution of scientific arguments, some may argue that the concept of
“race” now has a distinct public meaning which describes five separate groups: whites,
blacks, Hispanic, Asians, and native Americans. This is the understanding upon which
much governmental policy is based. In fact, however, this five-tiered approach is now so
understandings. Public conceptions of race and ethnicity are more nuanced and less
definite. Today, Jews are mostly considered to be more than a religion. Most
Americans, most Jews, and most academics consider Jews to be an ethnicity or both an
ethnicity and a religion. To the extent that “race” is now understood to be a matter of
shared ethnic or ancestral heritage, Jews are publicly understood to be members of such a
group.
All of these approaches – historical, scientific, and sociological – share one basic
flaw. They require the victims of discrimination to show that they are members of a
“suspect category” which Congress intended to protect. In this way, they tend to reify
outdated social categories and to impugn the self-conceptions of the victims. The final
approach examines the subjective approach of the discriminator, rather than asking
Under a subjective intent standard, Jews receive anti-racist protections to the extent that
their antagonists are racially motivated. This approach has the advantage of resolving the
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dilemma of Jewish difference: Jews are extended civil rights protections in a manner that
does not exacerbate the very perceptions of difference which gives rise to the underlying
offense. The difficulty in the approach is that subjectivists may argue that anti-Jewish
like the new racism,, is typically based upon concealed racial intent. In fact, the nature of
racial anti-Semitism included elements of religious anti-Semitism, so does the new anti-
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