Federal Court: "Jewish" Isn't a Race Under Title VII

Last year, I wrote about a federal court opinion in Bonadona v. Louisiana College, addressing whether Jewishness is a "race" for purposes of Title VII litigation. The question rarely comes up, because Title VII also protects against religious discrimination, and so Jews suing on basis of antisemitism typically just use that as their statutory hook. But Bonadona involved a Jewish-born convert to Christianity, who was nonetheless allegedly denied a position at a Christian university on the basis of his "Jewish blood" (yes, that phrase exactly). So he couldn't claim religious discrimination -- he was Christian, just like his would-be employers -- but the reference to "Jewish blood" certainly smacks of an employer who viewed (and disparaged) Jewishness as a race.

The decision last year concluded that Jewishness is, or at least could be, a race for Title VII purposes. But it was actually only a magistrate's recommendation, and a few days ago the district court judge apparently overruled that recommendation (via) and decided that Title VII categorically does not provide protections to Jews as a "race" because Jewishness was not understood to be a race in 1964 (I say apparently only because the court's opinion does not mention or discuss the magistrate's recommendation in any way).

This lack of discussion is disappointing, since the magistrate's opinion raised some issues that I think are worthy of discussion but get no attention in the relatively sparse treatment offered by the district court. The latter's analysis begins and ends with the (for what it's worth, uncited) declaration that Jewishness wasn't viewed as a race in 1964, and so consequently the statute could not have been intended to encompass Jews (at least, as a race). This distinguishes the Bonadona case from other precedents which found Jewishness was a race for the purpose of Section 1981 litigation -- Jewishness was seen as a race in the 1860s, but wasn't by the 1960s.

To me, though, this analysis isn't persuasive, and smacks of a sort of vulgar textualism (what in the constitutional context is sometimes called "original expected applications originalism") that is just wrong as a matter of fundamental legal interpretation. The right question -- even from an originalist/textualist vantage -- isn't whether Jews were (by everyone? the majority? themselves?) viewed as a race in 1964 (or 1866). It's whether, under the prevailing understanding of "race" that would have dictated meaning in 1964, Jews are being viewed as a race now (either generally, or in the particular fact pattern at issue).

For example, suppose that in the mid-1970s, a race of human mole people emerged from beneath the earth and sought to integrate into above-ground human society. Though they're biologically human, they have their own distinct customs and practices, and are physiologically distinguished by their dark blue skin. In the United States, they are quickly assimilated into normative American race politics (e.g., White supremacists hate them, some people are nervous about allowing them into their children's public schools, a network of stereotypes about them quickly entrenches itself, and so on). Are they a "race" for Title VII purposes? It'd be weird to answer "no" because in 1964, "moleman" (not yet having been discovered) wasn't recognized as a race. Rather, the question is, given what "race" was understood to have meant in 1964, whether the manner in which the mole people are being treated corresponds to a racial category. If the answer is "yes", then they're a race for purposes of the statute. If not, then they're not.

The reason we have to stretch to a hypothetical about "mole people" is that it's quite hard, under prevailing contemporary understandings of race, to imagine a clear cut example of a new race being "discovered". In reality, while race is not a static concept, social groupings don't move into or out of the category all at once. In the case of Jews, for example, sometimes we've been viewed as a race and other times not, and even within a discrete time period some people have viewed us as a distinct race and others not. White supremacists today still discriminate against Jews on racial, not (just) religious, grounds, even though many other people do not view Jews as racially distinct. That was probably equally true in 1964. It seems very odd to say that discrimination that is both expressly described by the perpetrators and acutely experienced by the victims as occurring on racial grounds is nonetheless not on basis of "race" because ... what, exactly? Jews aren't "really" a race? There isn't a metaphysical  or biological reality to race, other than how it's performed -- the act of treating a group as racially distinct is all there is to race-ing a group.

Consequently, I'd suggest that, at minimum Jews are a race for Title VII purposes in cases where the discriminatory treatment they experience is racialized. The markers of racialized treatment -- which I think had purchase in 1964 -- are things like viewing ones personal character or human value as dictated by one's biological ancestry, assuming sweeping similarities across a wide range of character traits based on perceived physiological or genetic similarity, viewing the group as one which has the potential to degrade or "pollute" the gene pool, perceiving membership in the group as per se (or at least highly suggestive) evidence for all individual members that they are congenitally incapable of integrating with others not-like-it, and so on. Admittedly this may not be amenable to being nailed down  with precision-- but that fuzziness is probably why Title VII doesn't attempt a definition of "race" (if it were as simple as "the groups that were generally classified as races in 1964", then the statute could have easily just given that list). To a large extent, when it comes to whether a particular group is being viewed as a race, "we know it when we see it".

Does the above rule -- where one is a race when one's discriminatory treatment is racialized -- cover all cases of antisemitism? Not necessarily. Someone who refuses to hire a Jew because "they don't worship the same God I do" is engaging in religious discrimination, but that sort of statement does not on its own evince a view of Jews as a distinct racial group. One can imagine a range of cases that get grayer and grayer as you approach the middle, but refusing to hire someone because of their "Jewish blood" seems to sit pretty comfortable on the far side of the spectrum.

And this, I think, represents a more faithful application of the original understanding of the word "race" in Title VII than the casual inquiry given by the District Court. It is unlikely that the drafters of the Civil Rights Act thought of themselves as protecting certain ahistorical and immutable categories of "races" that existed from the depths of antiquity and would persevere endlessly into the future. By 1964, when we had started abandoning the view of race as a biological reality and instead treated as a sociological category, a "race" for Title VII purposes is a group that is treated as a race in cases covered by the statute.

The Chaos Principle

The "best paper" in APSA's political psychology section this year was an exploration of the role of "chaos incitement" in contemporary politics, with particular reference to the rise of Trumpism (H/T).

The authors describe “chaos incitement” as a “strategy of last resort by marginalized status-seekers,” willing to adopt disruptive tactics. Trump, in turn, has consistently sought to strengthen the perception that America is in chaos, a perception that has enhanced his support while seeming to reinforce his claim that his predecessors, especially President Barack Obama, were failures.

Petersen, Osmundsen and Arceneaux find that those who meet their definition of having a “need for chaos” express that need by willingly spreading disinformation. Their goal is not to advance their own ideology but to undermine political elites, left and right, and to “mobilize others against politicians in general.” These disrupters do not “share rumors because they believe them to be true. For the core group, hostile political rumors are simply a tool to create havoc.”

This isn't purely a right-wing phenomena -- Bernie Sanders also carries some appeal to this cadre, and surely it describes much of what draws people to Corbynism in the UK -- but it does tend to benefit the right more. And that's actually a really important observation when considering how to appraise this sort of rhetoric when it does appear on the left. Generalized fulminations whereby "all politicians" -- left or right, Democrat or Republican -- are bought, corrupt, in the pocket of big businesses, indistinguishably in thrall to the interests of a narrow elite, help Sanders-types internally in intra-progressive debates, but help conservatives generally across a wider partisan system.

This generates a serious problem, because a quite viable and attractive strategy for left insurgents to win within the Democratic Party -- focusing on allegations that the DNC is corrupt, primaries are rigged, most Democratic pols are basically indistinguishable from Trump anyway -- is likely to prove cataclysmic for progressive chances in general elections. The reason isn't, as it's sometimes portrayed, that the party will have moved "too far to the left". Rather, it's because the political stylings and psychological orientation of this mode of argument, which more-or-less indiscriminately targets established institutions (including everything from party leadership to academic communities to scientific consensus), is one that structurally favors conservatives over progressives.

What It Means for Jews To Vote Tory

Daniel Sugarman has an interesting column on the prospect of UK Jews voting for the Conservative Party, simply because Jeremy Corbyn is unacceptable. What's interesting about it is that it pretty forthrightly acknowledges that Boris Johnson's Conservatives are unacceptable too -- to name just one issue, their Islamophobia is on par with Labour's antisemitism.

Sugarman frames his discussion around a Muslim colleague of his who loathes Corbyn, fully acknowledges his role in fomenting Labour's antisemitism crisis, yet indicates he might have to hold his nose and vote Labour anyway because the prospect of empowering Johnson's hatred towards his community is too awful to stomach. The premise of the column is that this logic is wholly reasonable and permissible -- it is legitimate for a Muslim voter in the UK, fully aware of (and repelled by) Labour's antisemitism, to nonetheless prioritize his or her own safety and vote against the Conservatives; and by the same token it is legitimate for a Jewish voter in the UK, fully aware of (and repelled by) the Tories's Islamophobia, to nonetheless prioritize his or her own safety and vote against Labour.

It's worth underscoring just what this logic actually implies, though. Many have thought that any British voter who votes Labour for any reason is, ipso facto, selling Jews out -- signaling that the appalling antisemitism that has followed in Corbyn's wake is unimportant or even acceptable. But Sugarman's argument means we can't accept this, anymore than we can accept that Jews voting against Corbyn and for Johnson are thereby signaling toleration for Islamophobia. People have all sorts of reasons for voting the way they do. Moreover, while Sugarman's logic sanctions Jews voting for Tories, it gives no such rationale for why anyone else should do so. After all, there is no a priori reason why a young non-Jewish, non-Muslim progressive voter should prioritize rejecting Corbyn's antisemitism over Johnson's Islamophobia. If both of those weigh equally on their conscience, then they cancel out, and then the question is whether Corbyn's Labour Party is better generally than Johnson's Conservatives -- presumably, most progressives would quite reasonably find the former to be more amenable to their interests.

True, under normal circumstances, it is fair to demand that people sacrifice certain private interests in deference to important moral considerations -- this is why the Trump voter who doesn't approve of "Build the Wall" and "Keep Muslims Out", but really, really wants a tax cut, can fairly be deemed to be racist (the failure to properly prioritize in the face of overwhelming moral necessity represents a dereliction of one's duty of care towards racialized others). But the point of Sugarman's analogy is that here there are huge moral catastrophes looming on both sides (and we haven't even mentioned Brexit yet). UK politics right now is a tragedy -- between Labour and Tory, there are no good options, or even acceptable options. It's just a choice between competing abominations. So long as one recognizes the sort of play that they're in, I don't really begrudge how they decide to act out their role.

Of course, for me this entire discussion immediately raises the question: why not LibDems? They aren't perfect, but they're unabashedly anti-Brexit and lack the institutionalized bigotry that afflicts their larger compatriots.  But while, unlike the US, the LibDems give British voters a valid third party option, Britain's first-past-the-post system nonetheless can see wild results in constituencies where more than two parties are seriously contesting. It's not out of the question that a reasonable voter might have to vote strategically, which brings us right back to where we started.

I've remarked before that the chaos in UK Labour is perhaps the only thing that's ever given me sympathy for "Never Trump" Republicans. On the one hand, the health and future of a viable, non-hateful British progressive community depends on Corbyn getting spanked. Only that can break the fever. This was one of the (many) tragedies of 2016: had Trump lost, it is at least possible -- possible -- that Republicans would have concluded that the path they were traveling was unsustainable and had a moment of reckoning. But now that Trump won, certain seals that should've never been broken have been shattered -- I'm skeptical that we will see a GOP that's even a tolerably ethical choice for decades. If Corbyn loses, maybe the spell breaks. But if he wins -- if, in spite of everything, it turns out that this brand of feverish populism and conspiracy-mongering is capable of carrying an election -- the damage could be felt for generations.

And yet: these are not normal times. It's one thing to suffer through a cycle of conservative governance. Nations survive those, as terrible as they are, and the damage they inflict, while often extensive, is rarely permanent. But thanks to Brexit, the UK is in a singular political moment -- poised to self-sabotage in an unprecedented way that could not be fixed or even seriously ameliorated next cycle. The prospect of handing over government to the Tories and allowing Boris Johnson to lead a Brexit as he sees fit is horrifying to contemplate -- it is a sacrifice that goes way beyond a few years time in the opposition.

Complicating it all is the fact that -- as much as Brexit represents the defining issue of this generation of British politics -- Jeremy Corbyn doesn't oppose Brexit. It'd be one thing to demand that voters hold their nose and vote Labour anyway to stop Brexit -- but it's far from clear that Corbyn's Labour party would actually do that. In a real sense, the two main party choices are between an Islamophobic conservative party desiring a Hard Brexit at any cost, and an antisemitic progressive party pushing for a "Soft Brexit" (or Lexit) that doesn't actually exist. Some choice.

I don't envy anyone who has to make it. Were it me, here would be my chain of voting priority:

1. Vote LibDem, in any race where it's feasible they'll win;
2. In races where the LibDem candidate can't feasibly win but the Labour candidate can, vote Labour if the candidate is both (a) seriously pro-Remain and (b) not antisemitic or an apologist for antisemitism in Labour (and there are -- yes, really -- plenty of Labour MPs who are not. There is a huge difference between Ruth Smeeth and Chris Williamson);
3. If the Labour candidate fails these tests, vote Conservative if the candidate is (a) seriously pro-Remain and (b) not Islamophobic or otherwise hateful;
4. If both the Labour and Conservative candidates fail their litmus tests, then vote for the best remaining candidate (even if they stand no chance at winning). 

Tories Lose Working Majority as Pro-EU MP Defects To LIbDems

UK Prime Minister Boris Johnson's Conservative working majority in parliament -- which was down to a single vote -- is now gone, as former Minister Philip Lee dramatically walked over to the LibDem bench and joined the opposition in the middle of a Johnson speech. Lee had long been a pro-Remain voice in the party, but said the final straw was arch-Leaver Jacob Rees-Mogg mocking the doctor who had written the official report on the healthcare consequences of a no-Deal Brexit -- one in which he warned that increased patient mortality was a likely result.

At the same time, parliament dealt a huge blow to Johnson by voting to preserve their authority to stop a no-Deal Brexit. Twenty-one Tory MPs bucked the party (and braved threats of expulsion from the Conservative ranks); Johnson has sworn to call early elections in response.

UPDATE: The Tory rebels have had their whips removed and now sit as Independents.