Seminar Draft: For discussion purposes only.

Anti-Semitism and Racism

Kenneth L. Marcus1

Is anti-Semitism a form of racism? Given jurisdiction over race and national

origin but not religion, the U.S. Department of Education’s Office for Civil Rights (OCR)

has had to determine whether harassment of Jewish students constitutes “discrimination

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

purposes of U.S. civil rights enforcement, as “discrimination because of …race.”4 This

proposition is defended under each of the four primary methodologies with which a

reviewing court or administrative agency could fruitfully examine the question. These

methodologies may loosely be described as historical, scientific, sociological and

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

difference.” One of the four primary methodologies provides an adequate means of

resolving the “dilemma of Jewish difference,” and thus of providing a fully satisfactory

answer to the question presented, and that is the subjective approach.

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

University of California at Irvine dismissed widespread and serious anti-Semitism claims

brought against that university in part on the grounds that the relevant allegations do not

constitute “national origin” discrimination.5 Among other deficiencies, OCR’s decision

failed even to consider well-documented claims that Irvine’s Jewish students faced

actionable forms of racial discrimination.

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.

In a surprising departure from standard agency protocol, OCR flatly

ignored ZOA’s allegation that Irvine’s Jewish students faced racial

discrimination. OCR reviewed allegations of national origin discrimination only

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

of Irvine’s response, and insufficient factual information to proceed.6

OCR failed to protect Irvine’s Jewish students from anti-Semitic harassment in

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

discrimination on the basis of “race, color, or national origin.”8 In addition, however,

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

origin harassment commingled with aspects of religious discrimination against Arab

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

ethnic and religious characteristics.9 For example, OCR pledged to “aggressively

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

coded bureaucratic language:

OCR has jurisdiction to investigate complaints raising allegations of religious

discrimination or anti-Semitic harassment if the allegations also include
discrimination over which OCR has subject matter jurisdiction, such as, race or
national origin (including discrimination based on a person’s ancestry or ethnic
characteristics).11

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.”

In other words, OCR will not address anti-Semitism per se.

Apparently, OCR’s leadership during the second George W. Bush administration

had quietly decided not to apply the policy determination made by the first George W.

Bush administration. The policy in question had treated anti-Semitism as a violation of

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

recourse in the event of anti-Semitism in colleges, universities, or public schools. For

this reason, it is vitally important, at the transition to another administration, to determine

whether anti-Semitism does in fact constitute such discrimination.

The Problem of Defining Jewish Difference

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

understandings of race or nationalities which are defined in these terms. Modern

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

religious discrimination in educational institutions, the civil rights of Jewish American

students largely depend on the extent to which courts and administrative agencies

acknowledge that anti-Semitism can be a form of racism.

The critical question, then, is whether anti-Semitism is a form of racism. More

precisely, under the terms of Title VI of the Civil Rights Act of 1964, the question is

whether anti-Jewish discrimination is “discrimination because of … race.” The

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

largest genocide every perpetrated, is a special sub-variety of a generic phenomenon

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

to resort to the very same error in characterizing Nazi anti-Semitism as a form of

“racism.” In order to address this problem of group identity, are we forced to embrace

the very concepts from which the problem is constructed?

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

slowly came to understand that their understandable squeamishness over racial

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

from a sociological perspective for the reversal in Jewish communal which it

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

that Jews constitute a race.”

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

fighting to be recognized in the eyes of the government as a distinct group deserving

protection form ‘racial’ discrimination.”17 Although Nelson’s conviction was later

overturned on a technicality, the court of appeals upheld the extension of another

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

to mention incoming Obama Administration political appointees) may be skeptical of

Bush Administration policies which seem to advance religious interests. From the

careerist perspective, the Bush Administration’s religious freedom agenda had two

dubious ramifications. On the one hand, the Administration’s Faith-Based and

Community Organizations initiative threatened to abrade the traditional separation of

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

more constitutionally problematic than Title VII EEOC anti-Semitism enforcement in

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”

theories of discrimination. The Clinton Administration had controversially argued that

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

expansive interpretation but a reasonable and moderate one.

More generally, OCR has tended to eschew aggressive interpretations of Title

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

mistreatments of minority students were undertaken “because of race.” In the twenty-

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

anti-Semitism is discrimination “because of race”: historical, scientific, sociological and

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.

This is sometimes called the “original public meaning.” A second approach is to

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

can be found. A third alternative is to apply the contemporary public understanding of

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

approach is to consider whether the alleged discriminator intended to discriminate based

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.

The Originalist Approach

14
 Was the Civil Rights Act, as originally enacted in 1964, intended to protect

Jewish Americans? This first methodological approach is to consider the original

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

was written by the democratically accountable branches of government. For example, if

common understandings replace original meaning, then the meaning of our laws will

always be subject to the discretionary interpretation of unelected judges. The U.S.

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

motivated by racial prejudice in that defendants perceive plaintiffs as racially distinct

because they are Jews."25

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,

Germans, Gypsies, Chinese, Mexicans and Mongolians as members of separate races.29

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

discrimination identifiable classes of persons who are subjected to intentional

discrimination solely because of their ancestry or ethnic characteristics.”31 Since

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

discrimination” prohibited under § 1981 “whether or not it would be classified as racial in

terms of modern scientific theory.”32

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

no longer considered to be members of a distinct racial group in 1964, one should

conclude that they were not among the groups that Congress intended to shield from

“discrimination because of … race” under Title VI.

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,

then it would be appropriate for an originalist analysis to inquire as to the original

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,

as well as by the legislation’s floor manager, Congressman Celler, in the House of

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”

rather than the creation of a new statutory standard.38

Since Title VI merely incorporates the Fourteenth Amendment’s prohibition on

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

the fourteenth amendment.43 Similarly, Representative Thomas D. Eliot explained that

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 all intended to protect the same set of rights.

The Scientific Method

What if a subsequent U.S. Supreme Court, populated by less conservative judges,

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

originalist theory that anti-Semitic and anti-Arab discrimination is “racial

discrimination,” at least under nineteenth century civil rights legislation, regardless of

“whether or not it would be classified as racial in terms of modern scientific theory.”

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

ask whether anti-Jewish conduct is “discrimination because of … race” in terms of

“modern scientific theory.”

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.

Jews are no longer considered to be members of a biologically distinct race, because

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

century United States, the question is harder.

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

“Jews do not constitute a distinct or recognizable ‘race’…”47 The Court of Appeals

actually affirmed that dismissal, noting that “the Congregation maintains that Jews are

not members of a racially distinct group and do not wish to be so considered.”48

As both Kenneth Karst and Martha Minow observes, this case illustrates “‘the dilemma

of difference’: that a court may reinforce a socially constructed difference either by

ignoring it or noticing it.” 49

This leads naturally to the question as to whether more current scientific

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

and information. If contemporary science has already answered a question, according to

this notion, then it is folly to ignore its lessons and to rely instead upon unscientific views

which may be ignorant, misinformed, prejudiced or stereotypical.

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

nothing in the human genome that makes or diagnoses a person as Jewish.”50

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

primarily “biological designation.”

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

Nations Economic and Social Council convened a distinguished group of social

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

to the same species, Homo sapiens.”53

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

“racialized”) as a racially distinct group. Some commentators, writing in the emerging

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

historically more likely to be perceived as members of an Asians group, as Robert

Singerman’s research confirms.58 This perception is express, for example, in Oliver

Wendell Homes’s At the Pantomime (1874): “Amidst the throng the pageant drew/Were

gathered Hebrews, not a few/Black bearded, swarthy, -- at their side/Dark, jeweled

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

perceive light-skinned Jews as “white” because of visual perceptions or governmental

designations (such as definitions used for census-taking or affirmative action compliance

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.”

The common assumption of Jewish “whiteness” has been challenged by various

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

Jewish groups in non-Western areas such as Africa.63 According to one prominent

estimation, at least 20% of the American Jewish community consists of African, African

American, Hispanic, Asian, Native American, Sephardic, Mizrahi, bi-racial and multi-

racial Jews.64 Other commentators, such as Melanie Kaye/Kantrowitz, have

problematized even the perception of even light-skinned Ashkenazic Jewish “whiteness”:

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

ethicopolitical engagements in the United States – the conditions of racism, primarily

antiblack racism, that surround us.”70 In this way, Bar On and Tessman argue that

political considerations may require social theorists to ignore, or at least to deemphasize,

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

Putting aside the respective political considerations which have sometimes

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

established the racial construction of American Jews.

What, then, is the contemporary racial construction of American Jews? Charles

Mill, an influential racial theorist, attempts rather awkwardly to recognize this

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

characterization is understandably imprecise in light of the still inchoate state of

contemporary race theory. Long constructed as racially “other,” the relatively recent

emergence of Jewish “whiteness” may still be a work in progress, as Goldstein’s work

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.

For the sake of completeness it must be acknowledged that the scientific

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

delivery. Recent studies in population genetic have indicated a high degree of Y-

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

genetically related population group originating in that region.

Population geneticists have also shown remarkable similarities in the genetic

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

Significantly, this commonality is shared both by Cohanim of the Sephardic community

(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

of related chromosomal types or mutations. Specifically, 69 percent of the Ashkenazi

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

groups, Jews are likely to be among the groups included.

The Contemporary Meaning Approach

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

examined under evolving popular understandings of what it means to be a “race,” what it

means to be a Jew, and what it means to be an anti-Semite.

For purposes of comparison, it may be useful to consider the way in which

“discrimination…because of sex,” which is also conspicuously included in some

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

statute, which prohibits employment discrimination, has prohibited sex discrimination

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

career advancement – should be considered discriminatory. After all, the subordinate

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

that the proposition was not made “because of … sex.”

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

discrimination became a hallmark of anti-discrimination law. Nevertheless, this

embarrassing legislative history bedevils those who would prefer to interpret

congressional enactments in light of Congress’ original meaning. However, the U.S.

Supreme Court accepted the arguments of feminist scholars, led by Catharine A.

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

this holding to educational institutions, such as schools and colleges.

Later, the courts had to consider whether same-sex sexual harassment cases could

be considered “discrimination…because of sex.” If both the accuser and the accused

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

harassment or sex discrimination.

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

mistreatment of transgender or transsexual persons is a form of “discrimination because

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

about what it means to mistreat someone because of their sex.

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

official purposes, “race” is typically defined as a means of distinguishing among whites,

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

to civil rights protection.

This notion of race, however, is almost entirely discredited. While government

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.

Stephan Thernstrom, editor of the authoritative Harvard Encyclopedia of American

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

population segments. Some have suggested that “ethnicity” is a separate form of

categorization, distinct from the terms “race” and “ethnicity” as they appear in the Civil

Rights Act. In fact, the sponsors of that legislation considered “ethnicity” to be

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

old-fashioned biological conception of race is largely superceded, newer conceptions of

population groups are more inclusive.

Overwhelmingly, Jewish Americans consider Jews to be a distinct ethnic group.

This understanding is confirmed by large-scale surveys of the American Jewish

community. It is also confirmed by survey research of American college faculty recently

conducted, although not previously published, by the Institute for Jewish & Community

Research. That survey data demonstrates that both Jewish and non-Jewish American

college faculty overwhelmingly consider Jews to be either an ethnic group or both an

ethnic group and a religion. Very few Jewish Americans, and very few academics,

consider Jews to be only a religion.

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

burden, whether defined in historical, scientific, or sociological terms, is problematic not

only because it tends to reify traditional social stratifications – to so-called “dilemma of

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

class” as an “abomination” which “should be eradicated from our constitutional

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

is no impediment to a holding that an actor commits a constitutional or statutory wrong

when he discriminates against someone because he assumes his target to be a member of

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

discrimination is this is how he perceived his actions.

This approach was articulated by Judge Harvey Wilkinson in a dissent to the

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

of defendants.”88 Wilkinson argued that to do otherwise would be to allow ignorance and

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

discriminatory reflects the view that discrimination is grounded in erroneous perceptions.

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

that anti-Jewish discrimination may constitute a form of racism.

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,

"Discrimination based on race seems, at a minimum, to involve discrimination directed

against an individual because he or she is genetically part of an ethnically and

physiognomically distinct subgrouping of homo sapiens."97 Noting that “where a

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

college’s subjective racial perceptions.

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

religious to racialist foundations,99 largely through the work of German journalist

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

way, contemporary political anti-Semitism continues to disseminate traditional religious

and racialist anti-Semitic defamations. Thus, for example, protesters at anti-Zionist

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

would be virtually impossible for a contemporary anti-Semite to be wholly innocent of

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

important to claim as a defense against anti-Semitism. The community’s initial

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

genocidal consequences. The response of Jewish organizations to this conundrum was

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

even if the victims do not constitute a race.

Jewish students have strong claims to racial protections even under the three

approaches which require them to adopt long discredited racial categorizations.

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

challenges, however, misread legislative history. In fact, Jews are unquestionably

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

Supreme Court has unanimously held) clearly applies to Jews.

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

is misleading to suggest that Jews lack scientifically meaningful claims to racial

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

that it is applied, however, the concept of “race” should be considered a social

construction. From this perspective, Jews have historically and globally been

“racialized” as a group separate from Western European whites. In recent years, this

construction has been complicated, at least as applied to light-skinned Ashkenazic Jews,

who have long negotiated a process of “becoming white.” Recent social scientific

research suggests, however, that this “reracialization” of American Jews is hardly

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

racial protections is at best overly simplistic.

46
 The historical and scientific understandings both downplay contemporary public

(non-scientific) understandings of what it means to be a race. Regardless of legislative

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

widely rejected that it no longer can be considered a reflection of modern public

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

whether the victim historically, scientifically or sociologically deserves protection.

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

47
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

discrimination is not in fact motivated by racial considerations. The new anti-Semitism,

like the new racism,, is typically based upon concealed racial intent. In fact, the nature of

contemporary anti-Semitism has been to combine elements of its precursors. Just as

racial anti-Semitism included elements of religious anti-Semitism, so does the new anti-

Semitism include elements of both religious and racial animus.

48