"The White House is pushing back against criticism of its new executive order on anti-Semitism, specifically with regards to accusations that it will harm free speech on U.S. campuses.
The executive order was signed by President Donald Trump last week and has drawn strong praise from leading mainstream Jewish-American organizations, but also criticism from the American Civil Liberties Union and from several progressive Jewish groups...
Jared Kushner, Trump's son-in-law and senior adviser, played a key role in getting the president to sign the executive order. He rejected that interpretation in a New York Times Op-Ed published last week. 'When news of the impending executive order leaked, many rushed to criticize it without understanding its purpose,' Kushner wrote. 'The executive order does not define Jews as a nationality. It merely says that to the extent that Jews are discriminated against for ethnic, racial or national characteristics, they are entitled to protection by the anti-discrimination law.'...
In addition, the executive order says the Department of Education should consider the 'contemporary examples' of anti-Semitism that are part of the IHRA definition. These are what critics of the executive order are most concerned about.
The list of examples published by the IHRA includes examples that are indisputably anti-Semitic – such as denying the facts of the Holocaust or calling for the killing or harming of Jews. Several examples, however, describe criticism against Israel. One such example is 'applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.' Another example is comparing 'contemporary Israeli policy' to that of Nazi Germany.
Haaretz asked the White House how these 'contemporary examples' would, in practice, impact universities that receive federal grants from the government. Could, for example, a university lose federal grants if a student complained about a professor or guest lecturer saying in the classroom that something Israel did is reminiscent of actions taken by Nazi Germany? And could it lose funding over an event that supports an Israeli withdrawal from the occupied territories – something a right-wing Jewish organization could describe as 'requiring of [Israel] a behavior not expected or demanded of any other democratic nation'?
Avi Berkowitz, a close adviser to Kushner and heavily involved in working on the executive order, says the answer is no. 'A complaint against a lecture as you describe would not trigger Title VI,' he says. 'In order for Title VI to apply, there has to be actionable conduct. Title VI requires a certain level of conduct, and the executive order does not change that requirement. The lecture remains protected speech.'
In other words, the Department of Education would not respond to a complaint about a statement alone. It would only respond to complaints about 'actionable conduct' – meaning an action that could count as discrimination.
'The executive order is relevant if there is conduct that rises to the level of possible discriminatory action and the university needs to determine motive,' Berkowitz says. 'For example, let's say a Jewish group, like Hillel, wants to reserve rooms for meetings but the administrator repeatedly refuses, so they can't meet and they suspect there is something underhanded about the process. They file a complaint. If during the investigative process it is discovered that the administrator has written emails saying that he/she would never reserve rooms for Jews, and that email includes anti-Semitic reasons, these emails may be relevant to show whether the conduct had a discriminatory motive, which is necessary for Title VI to apply.'..."