Ever since the Biden administration released the broad outlines of its National Strategy to Counter Antisemitism last May, we have waited for the rollout of actual policy positions and related steps by the administration to transform the strategy into action.
Based upon last week’s announcement by the White House of new policy directives to counter antisemitic discrimination in federally funded programs and activities, including public transportation, food programs and federal housing programs, it appears the process has begun.
Eight federal agencies announced a significant expansion of a key protection in Title VI of the Civil Rights Act of 1964, to include certain forms of antisemitism and other religious discrimination. The announcements came from the Departments of Agriculture, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, Treasury and Transportation, and relate to federal programs administered by those departments. Each of the agencies has undertaken to ensure that their personnel understand and are prepared to respond to antisemitic discrimination in connection with their department’s federal programs.
We applaud the effort. And we commend the Biden administration for continuing to focus on the evils of antisemitism and its commitment to address bigotry in as comprehensive a manner as possible.
But there’s a problem. Title VI prohibits discrimination on the basis of race, color and national origin. It does not address religious discrimination. So, until now, antisemitism and religious discrimination in federal programs were not susceptible to a stand-alone religious discrimination claim under Title VI. But now, through the new agency announcements, the administration says the coverage of Title VI has changed. Title VI was clarified to cover “discrimination based on shared ancestry or ethnic characteristics,” and that includes antisemitic discrimination based upon the victim’s Jewish ancestry or ethnic characteristics.
According to the Department of Agriculture, that means a person wearing a kippah who goes to a federally funded food pantry is now protected against insults, harassment, denial of a food box or other forms of antisemitic discrimination. Similarly, according to Health and Human Services, a hospital could be liable for a Title VI violation if it honors an emergency room patient’s request to change doctors because the patient associates the doctor’s surname with Judaism and/or Israel.
That’s all well and good – for as far as it goes. But we worry whether the administration’s effort will translate into meaningful enforcement activity against antisemitic behavior. That’s because we aren’t sure how everyday people are supposed to understand the new protections that are being offered and what they mean. How are people supposed to know that “discrimination based on shared ancestry and national origin” includes antisemitism or any form of religious discrimination?
More importantly, if the administration is committed to the noble effort of fighting antisemitism and other types of religious-based hatred, wouldn’t it make more sense to amend Title VI to include specific references to religious discrimination? Other discrimination laws include explicit protection against discrimination based on “religion.” Why shouldn’t Title VI be equally as clear?