Policy steps

Biden administration broadens Civil Rights Act to tackle antisemitism

Federal agencies ‘must consider IHRA’ when looking at antisemitism, according to White House

Alex Wong/Getty Images

President Joe Biden meets with members of the President’s Board of Advisors on Historically Black Colleges and Universities at the Roosevelt Room of the White House on September 25, 2023, in Washington, D.C.

A new set of policy directives issued by the Biden administration on Thursday aims to counter antisemitic discrimination in federally funded programs and activities, including public transportation, food programs and federal housing programs. The move is one of the most significant policy steps taken by President Joe Biden since the White House released a national strategy to counter antisemitism in May. 

Eight federal agencies announced a broad expansion of a key protection in the Civil Rights Act of 1964. Title VI of the landmark legislation will now extend to certain forms of antisemitism, Islamophobia and other religious discrimination. 

The clause prohibits discrimination on the basis of race, color and national origin, but not religion. The White House announcement makes clear that Title VI protections include “discrimination based on shared ancestry or ethnic characteristics,” which now covers discrimination against people based on their perceived religious identity. Religious discrimination is not covered by Title VI.

This kind of discrimination might look like a person wearing a yarmulke who, upon going to a federally funded food pantry, is met with a volunteer making a joke about the Holocaust and denying him the food box, according to one example provided by the U.S. Department of Agriculture. Another example might be an emergency room patient requesting a new attending physician “because the patient associates the physician’s surname with Judaism and/or Israel,” according to a fact sheet from the Department of Health and Human Services.

Similar guidance has been in place at the Department of Education since 2004. A 2019 executive order issued by former President Donald Trump required agencies that enforce Title VI to consider the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism. 

A White House official told Jewish Insider that the 2019 executive order is still in effect, including its provision on the IHRA definition, which is backed by a wide swath of the Jewish community and has been adopted by hundreds of governments around the world. “Thus, these eight agencies (along with the Education Department and the Department of Justice) must also consider IHRA,” said the official.

“I am absolutely delighted that this policy to protect Jewish students has been reinforced today and extended to a wide range of agencies, and also used in a way that can protect [people] from other ethno-religious backgrounds as well,” said Louis D. Brandeis Center for Human Rights Under Law founder Ken Marcus, who helped author the 2019 policy as the then-assistant U.S. secretary of education for civil rights. 

Under the new guidance, the Departments of Agriculture, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Labor, Treasury and Transportation will have to ensure that staff “understand and are ready to respond to this kind of discrimination,” the White House said.

The Title VI guidance is somewhat complicated, according to Rep. Kathy Manning (D-NC), by the fact that religion is not specifically named as a protected category under Title VI. 

Manning, the co-chair of the House antisemitism task force, and Reps. Chris Smith (R-NJ), Jimmy Panetta (D-CA), Grace Meng (D-NY), Lois Frankel (D-FL), Brad Schneider (D-IL), Debbie Wasserman Schultz (D-FL), Marc Veasey (D-TX), Ted Lieu (D-CA), Susan Wild (D-PA) and Bill Keating (D-MA) were briefed by Department of Education officials Catherine Lhamon and Matt Nosanchuk on Thursday on the department’s efforts to implement the antisemitism strategy.

Manning told JI that the Department of Education officials explained that, under current law, a case where a student was denied an excused absence for a religious holiday would not fall under Title VI but would have to be referred to the Department of Justice — further complicating the process.

She said she’s “been asking for a year now” why religion is not included under Title VI, which would help streamline approaches to antisemitic incidents. She said Congress should consider amending Title VI, which “would be a massive bill — but I think the Title VI issue deserves attention.”

The Title VI language may also discourage victims from reporting antisemitism to the Department of Education, Manning argued, since people seeking guidance on the matter may not understand that “discrimination based on shared ancestry and national origin” includes antisemitism. 

“It’s not obvious that that means they deal with antisemitic incidents,” she told JI. “I did ask the question whether they feel hampered by the fact that Title VI does not include religion, and they said, ‘Absolutely.’”

Manning said the department is adding new language to its website to clarify that its responsibilities include addressing antisemitism.

The Department of Education officials reiterated to lawmakers that its civil rights office needs more staff to investigate the backlog of cases of antisemitism, Manning said. The department conveyed a similar message — highlighting the need for greater funding — in a recent letter to Manning outlining its work on antisemitism. The civil rights office seeks a 27% budget hike to hire an additional 150 investigative staff.

Despite Republican efforts to slash federal funding, she said a Republican colleague raised the prospect of additional funding for the office during the meeting — “so anything’s possible.”

Overall, Manning praised the department’s efforts, which she said include educating K-12 administrators on antisemitism, making site visits to schools, working to resolve pending cases more quickly and examining underreporting issues.

“They are really undertaking enormous efforts,” Manning said. “It is personally important to them and they showed a degree of commitment to this that was very encouraging.”

According to the letter to Manning, just five antisemitism cases have been filed this fiscal year, and the department is working to provide complainants with options to resolve their cases more efficiently through mediation.

Also on Thursday, the State Department released a report detailing more than 40 programs around the globe that are combating antisemitism as an attempt to document successful programs and policies that the U.S. could adapt to its domestic fight against antisemitism. The first thing the report calls for is “naming the problem” — and, specifically, “embracing and applying the non-legally binding IHRA working definition as our baseline for how we discuss antisemitism.”

The White House announcement marked the clearest accounting to date of how the Biden administration is implementing its May antisemitism strategy. Other actions include the creation of a resource guide for houses of worship to increase security, the expansion of the Justice Department’s “United Against Hate” program to all 94 U.S. Attorneys’ Offices and planned meetings between a senior Education Department official and Jewish students in the Bay Area to discuss their experiences of antisemitism.

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