Are Jews Protected from "Racial" Discrimination Under Title VI?

Since 2003, the federal government’s official view has been that Jews are protected from racial (but not religious) discrimination by educational institutions under Title VI of the 1964 Civil Rights Act. This protection underlies dozens of lawsuits and administrative actions taken by or on behalf of Jewish students, especially since the Hamas atrocities of October 7 unleashed a wave of campus antisemitism.

However, there is a dearth of caselaw on the issue of whether Jews are in fact protected. Title VI intentionally excluded religious discrimination from its purview; if Jews are seen as entirely a religious group, rather than an ethnic group, the case for protection under Title VI becomes weak. And while the Supreme Court has held that Jews are protected as a “race” under the 1866 Civil Rights Act, that decision was based on the Court’s understanding of what groups were considered “races” in 1866. By contrast, in 1964 Jews were mostly considered to be a religious minority, not a racial or even an ethnic one.

In a recent article, Professors Benjamin Eidelson and Deborah Hellman discuss the question of whether Jewish ethnicity provides a proper hook for protection from racial discrimination under Title VI. Eidelson and Hellman seem ambivalent on the matter, but ultimately conclude that courts are likely to hold that Jews are indeed protected.

I don’t have any significant quarrels with their analysis or conclusion, with one caveat: they ignore the most obvious precedent for Jews being covered by prohibitions on “racial” discrimination. To wit, courts routinely hold that discrimination against Hispanics is barred by prohibitions on race discrimination.

To put the matter bluntly, “Hispanic” denotes a shared history of descent from a Spanish-speaking country, and that’s all. Hispanics can be of African, Indigenous American, European, or even Asian descent, or any combination of those. As I discuss in my book Classified, historically in the United States what we now call Hispanics (the term did not come into common use until the US government adopted it in 1978) were generally considered by the federal government to be white, unless they were clearly of African descent. When the US codified population-wide racial classifications for the first time in 1978, Hispanics were designated an ethnic, not racial, group. They remained that way until 2024, when the Biden administration moved Hispanic to a new “racial or ethnic” grouping.

Nevertheless, since 1964 courts have not only held across a wide range of federal statutes and constitutional provisions that Hispanics are a racial group for the purposes of civil rights laws, they have done so even when the Hispanic individual involved in the litigation was a self-identified white Hispanic.

For example, in Village of Freeport v. Barrella, 814 F.3d 594 (2016), an Italian American plaintiff sued, arguing that the defendant illegally discriminated against him in favor of a Hispanic job candidate. The defendant rejoined that the Hispanic job candidate was a white Cuban American, and it could not be guilty of racial discrimination by favoring one white (Cuban) applicant over another white (Italian) applicant. The court rejected this argument, holding instead that “Hispanic” is a race for purposes of § 1981 and Title VII. More generally, the court held that discrimination based on ethnicity constitutes racial discrimination under Title VII.

There seems no good reason to conclude that Title VI, part of the same law, uses a different definition of discrimination based on race than does Title VII. And if “Hispanics,” an ethnicity essentially invented by the US government in the 1970s for purposes of easing data collection and enforcement of civil rights legislation, are deemed protected from racial discrimination, it seems that a fortiori Jews, who have been a “people” for three thousand years, are also protected.

The post Are Jews Protected from “Racial” Discrimination Under Title VI? appeared first on Reason.com.