Justifying the Holocaust is a Small Price to Pay for Abolishing CRT

You've probably seen by now the story about a Texas school administrator suggesting to teachers that, in the wake of recent supposedly "anti-Critical Race Theory" rules demanding that teachers provide "both sides" of contentious or controversial topics and not in any way proffer sweeping denunciations of anyone or anything as "systematically" racist, they must provided a "balanced" account of the Holocaust. To be clear, it seems apparent that the administrator is not happy about this, but rather viewed this as the inevitable consequence of following the rules that have been laid down (and she indicated that there may have, in fact, been parental complaints before about the Holocaust being taught in an "imbalanced" fashion).

The small but vocal Jewish contingent which has been pushing the anti-CRT hysteria, suddenly aware of the leopards hungrily eyeing their own faces, was thrust on the defensive. Do they have regrets about the obvious and inevitable consequences of their own actions? No. And incredibly, they seem willing to allow for renewed debate over the very morality of the Holocaust if that's what it takes to oppose critical race theory:

“The dispute about the interpretation of events is completely legitimate, but the dispute about the existence of events is either dangerous or stupid or both,” said Rabbi David Wolpe of Sinai Temple in Los Angeles. “You can, for example, argue endlessly about the effects and causes of slavery but to argue that slavery didn’t happen is idiotic, or pernicious, and the same thing is true with the Holocaust.”

It is not an accident that Rabbi Wolpe, and the other anti-CRT voices quoted in the article, frame their disclaimers as opposing Holocaust denial -- a purely factual stance. Because let's be precise about what Rabbi Wolpe is suggesting here at applied to Holocaust education. He's saying that its stupid to debate the "existence" of events, whether its the Holocaust or slavery, but we must be "balanced" as to the dispute over their "interpretation". And perhaps "balance" isn't meant to apply to the raw existence of historical fact. But that means "balance" is applied to matters of normative assessment. The real potential "balance" in the Holocaust context is not denying that it happened, but suggesting that it was justified, or at the very least wasn't as bad or unjustified as "critics" suggest. Making sure we provide "diverse and contending perspectives without giving deference to any one perspective" means we have to dispassionately present the Holocaust from the point of view of the Germans just as much as the Jews.

As with slavery, where the "dissenting" narrative is that slavery's evils were overstated, many masters were kind, most White people were innocent, and in any event none of it has anything to do with the present day, the Holocaust too has alternative perspectives, where unflinching presentation of the Holocaust's horrors now must be "balanced" with narratives emphasizing "good Germans", the "innocent Wehrmacht", legitimate German grievances, and Jewish aggression and exploitation (both before and after the event). We would hate for any White people to feel "demonized", after all.

This was entirely predictable. As much as folks like Wolpe and David Bernstein loudly proclaim to be shocked -- shocked -- by the reach of the formal anti-CRT legislation they purport to "oppose", such legislation is the tangible manifestation of the anti-CRT campaign, which never had anything to do with CRT to begin with. It was always a backlash against teaching unflinching and unblinking history in the context of systemic oppression, dressed up in a sloppy "liberal" appeal to "both-sidesing". Once you do that, of course it's going to apply to the Holocaust too.

The thing is, whether we're talking about the Holocaust or about Jim Crow, I concede it may not always be fun to learn their your "group" or your ancestors were the villains of a particular chapter of history. Nonetheless, the purpose of the educational practice is not to "demonize" any student on basis of their identity, and the ancillary effect of generating feelings of "discomfort" is not something that likely can be avoided without utterly neutering the value of the lesson. The Holocaust is uncomfortable. It's uncomfortable in terms of what it did to Jews, in what it says about the moral fiber and moral foundations of a modern European state, and in what it implies about contemporary politics (about Jews and otherwise). Same with America's history of racial apartheid. It simply is discomforting, in terms of what it has done to people of color, in what it says about our collective national conscience and our foundational creeds, and what it implies about present day injustices and inequities.

Nonetheless, Holocaust education is not and should not be agnostic as between whether the attempted extermination of Jews was good or bad, and is not and should not be studiously indifferent over drawing lessons on how to head off similar atrocities in the future. When Texas demands that agnosticism and that indifference under the patina of both-sidesing, then it is impossible for contemporary Holocaust education to function as it should. But these are indeed the wages of the anti-CRT campaign it has embarked on.

To some extent, then, we can perversely admire the principled decision Wolpe, Bernstein, et al are sticking to here. In their view, raw facts may be sacrosanct, but "interpretations" must always be open. And so, in practice, their view is that while Texas schools should not teach outright Holocaust denial, they can and must be more open to debating the Holocaust's merits -- the German side and the Jewish side, presenting is neutrally and dispassionately as possible. White Supremacists should count themselves lucky to have such tenacious advocates. The rest of the Jewish community will unsurprisingly remain appalled.

What are the Stakes of "Indigenous"?

95% of discourse applying the "indigenous" frame to Israel/Palestine, whether "pro-Israel" or "pro-Palestine" in orientaiton, is political rather than analytical.

This is something I've believed for a long time, and it was further entrenched seeing this narrative cartoon by J.B. Brager in Jewish Currents titled "When Settler Becomes Native" (Brager borrows their title, consciously or not, from prior works by Mahmood Mamdani and Raef Zreik). 

The cartoon purports to trace and attack claims by Jews that they are "indigenous" to Israel. If one reads it carefully, though, one notices that it actually never succeeds in this objective on an analytical level. 

The case for Jewish indigenous status in Israel is relatively straightfoward: Israel is where Jews are from, not just in a vague historical sense but in a concrete sense that has continually demarcated their status as a "people", they were over the course of history forced out and forced into a subordinated structure of domination by foreign powers, and now they've come back. 

Against this, Brager doesn't actually do much to show that Jewish claims of indigenous status are not valid. They somewhat limply acknowledge that the Jewish claim actually fits decently well with the common benchmarks of indigenousness proposed by UN Special Rapporteur  Jose Martinez Cobo, but contends that their adoption to this case is exploitative -- if anything, Cobo's framework must fail because it seems to allow for the Jewish claim. 

Waving at Patrick Wolfe's well-known aphorism that settler-colonialism is a "structure, not an event" doesn't alter this. The claim that Zionism is a decolonial movement is precisely the claim that it disrupted a prior structure of dispossession and disenfranchisement that Jews had been laboring under  properly characterized as "colonial" (that it is difficult to point to a specific moment in 1549 when Jews "lost" territory that was previously theirs makes the "structure, not event" paradigm more, not less, attractive as a means of encompassing the Jewish case. It is not a specific historical moment but an ongoing structural condition where external powers arrogated to themselves the exclusive power to declare what Jews were and what their relationship to politics, land, culture, and so on could be). Ironically, the strongest claim for why Jews aren't "indigenous" to Israel is that "indigenous", as a category only applies in cases where the dispossession is ongoing -- if one succeeds in reversing it, one isn't indigenous anymore (hence why it makes more sense to refer to Algerians as "indigenous" during the French colonial period that it does today, post-independence). But this would be a pyrrhic victory for Brager, since it would defeat Jewish claims of indigenousness only by accepting that Zionism was successfully decolonial.

For these reasons, Brager's argument is not primarily focused on actually falsifying the notion that Jews are indigenous. For the most part, Brager instead works backwards from the conclusion; their argument is primarily that recognition of Jews as "indigenous" would have bad political consequences -- described variously (and the oscillation between the two is so rapid that they effectively blur together -- an effect that is certainly intentional) as either endorsing Israeli territorial maximalism and the view that Palestinians are foreign colonial invaders, or endorsing that Israel has any claim to exist at all. Since JC readers think both of these positions are bad things to endorse, it must conclude that the Jewish claims of being indigenous are bad as well.

Of course, working backwards from the conclusion, in addition to being bad analytical practice, comes with "political" dangers of its own -- as when Brager comes within a hairsbreadth of asserting that the entire idea of Jewish "peoplehood" must be rejected because any understanding of Jews as more than "just" a religion might bolster the claim that this "people" could legitimately claim indigenousness. Ironically, given the time Brager spends accusing their adversaries of engaging in biological essentialism, here they suggest that the only possible foundation for Jews being a "people" is a biological one (the other day I interacted with someone who used the fact of converts to mock the idea that Jews, as a whole, could be "indigenous" to Israel -- now who's running the biological essentialism play?).

Likewise, addressing the case of Mizrahi Jews (and groups such as JIMENA, which have long made the association of continued indigenousness), Brager doesn't refute the indigenous status, they just denounce them endorsing the "mythologization" of leveraging their own status as (potentially?) indigenous with those of all Jews. But -- leaving aside the actual demographics of Israel -- why can't they view the relevant frame of analysis as "the Jewish people", viewed as a collective? Why must they be forced to endorse compulsory separation such that their history is not our history? Put simply: why aren't Mizrahi Jews, to the extent they are indigenous, entitled to state that all Jews are part of their community and are thereby indigenous as well (Ironically, the implied answer is -- once again -- biological essentialism). 

I don't have time to fully go into it here, but there is a sort of enforced normative quiescence being demanded of Mizrahi Jews where they maybe can be accepted as indigenous so long as they accede to non-Jewish Middle Easterners' declarations over who counts as a community member and what constitutes valid political and social action. They can be indigenous so long as they do not in any way challenge other actors' decisions over why they're indigenous or how they count as indigenous. If they deign to operate independently and make their own choices over who is part of "their" community -- for example, viewing all Jews as being part of their collective and thereby sharing in whatever patrimony they can claim as indigenous to the region -- then they need to be slapped down. We see a version of this in Yuval Evri and Hagar Kotef's provocatively titled "When Does a Native Become a Settler?", which regardless of its other faults, does not dismiss out of hand the prospect of Jewish nativeness. However, it does persistently locate "native" Jewish choices that linked up with the Ashkenazi Jewish Zionist project (such as adopting Hebrew as the daily language) as decisions to "settlerize", rather than decisions expressing indigenous agency and intentional choices regarding how they conceptualized who was part of their community. Put differently, if we accept Mizrahi Jews as valid indigenous "cases", that has to include their authority to declare that, under their conception of who they are, all Jews are part of their community in the relevant respects -- they are not bound to endorse others who wish, for their own purposes, to make and enforce sharp lines where "these Jews" are of qualitatively a different people than "those Jews".

All of that said, it is the case that "indigenous" and "settler-colonial", in their political valence, tend to be associated with maximalist claims. On the pro-Israel side, they are often mustered to defend not just Israel's existence but the occupation and the wholesale rejection of any valid Palestinian claims, presented as foreign interlopers; all the land simply is Jewish land by right, settlement is simply taking the land back, and any non-Jewish presence is at most tolerated at the sufferance of the rightful owners. On the pro-Palestine side, these terms are again frequently deployed not just to object to the occupation but to contest the validity of there being an Israel at all; Israel is naught but a foreign invasion, the Jewish population anywhere in Israel is a settler population, the morally correct remedy to the crime of Israel existing is for it to be dissolved, and we should cheer if Jews (to quote a figure quoted in Brager's cartoon) go "back to where the fuck they came from."

Whatever their uses as analytical paradigms -- and I agree they can be quite useful (for example, I found the Zreik article, linked above, very thought-provoking) -- as terms of political mobilization "indigenous" and "settler-colonial" are the terms of first resort for those seeking to drape extremist solutions in a moral garb. That's true, again, on both sides of the ledger (it is not an accident that the Jewish claims over Sheikh Jarrah are framed as "land back" claims -- the Jewish claimants are successors to Jews who were dispossessed and expelled from their land by Arab armies in 1948!). As far as Israel and Palestine are concerned "indigenous" is where political commentators go to when they don't want to compromise a single inch but still want to appeal to some sort of putatively non-partisan moral principle. It is seductive in that it doesn't just promise everything, but promises everything with the gloss of moral justification to take a free rein.

No wonder, then, that Brager views it as unacceptable that Jews could claim "indigenous" for ourselves. Of course, their problem isn't the maximalism, it's who gets to be maximalist; they don't want to give up the maximalist utility of the indigenous frame, they just want to keep it for their preferred side. To some extent, the impetus behind this whole cartoon is oh no -- if it isn't the consequences of my actions paradigm! 

But if anything, the potential validity of Jewish claims of indigenousness should trigger a reassessment over the stakes of that label, and it probably would be worth reflecting on why this framework is so easily associated with and utilized by those proposing "solutions" to the conflict that are more-or-less open in their disdain for any sort of rights or claims by their disfavored side. If Jews are indigenous to Israel, then ... what? Does that mean Palestinians cannot also be indigenous to it? Does that justify violent expropriation of Palestinian-owned land, or the depravation of Palestinian civil rights and liberties? It would indeed be bad if Jews being indigenousness to Israel meant that therefore permanent occupation and dispossession of Palestinians is thereby justified! Brager's implicit response to this is to say "yes, it would be justified if Jews were indigenous, which is why Jews can't be indigenous" (I have sometimes wondered if Revanchist Zionism is what happens if Fanon wins the decolonization battle in a rout). My preferred response is to say "no, it wouldn't be justified, which means that can't be a consequence of Jews being indigenous." 

Brager is not fully wrong that the discursive impact of the "indigenous" debate, as it is used in contemporary political discourse, often serves to distract from if not justify obvious ongoing and continuing injustices. But ideally, it is precisely the strong potential legitimacy of Jewish claims of indigenousness that should prompt us to resist the deployment of "indigenous" to justify maximalist irredentism whose manifest immorality would otherwise smack us in the face. It is a bad thing -- this shouldn't have to be said, but apparently it does -- that we have people flirting with overt ethnic cleansing or mass expulsions and presenting them as moral imperatives (still worse when it is being done by people who have the power to carry out their flirtations, but certainly not good when it remains -- for the time being -- "merely" a fantasy)! And once we do that, we can start to think about what useful work "indigenous" (or "decolonial") can do in terms of both explaining the present and imagining the future, that is not simply a tool for maximalist fantasizing (this article in Tikkun is, I think, a worthwhile example of the project).

Antisemitism Symposium Video Online

The full recording of the antisemitism symposium I was a part of (hosted by Yael Aronoff of Michigan State University) is now online. The morning panel, which includes my contribution (as well as Eric Ward and David Nirenberg), is here, while the afternoon panel (featuring Saba Soomekh, Cary Nelson, and Ethan Katz) is here. My section begins at roughly the 1:11:30 mark of the first video.

It was a superb event and a true honor to be on stage with such eminent figures. Indeed, the absolute highlight for me actually came off camera, where someone referred to David Nirenberg as "the other David" (it was not remotely meant as a hierarchical statement -- just someone who had been talking about me the moment prior -- but as I put it then, "just let me have this").

David Miller is the JDA's Test Case

IHRA's big open question is "Is there any specific, controversial (left-wing) case, that some people contend is antisemitic, that IHRA would decisively conclude is not antisemitic?"

JDA's big open question is the opposite: "Is there any specific, controversial (left-wing) case, that some people deny is antisemitic, that JDA would decisively conclude is antisemitic?"

I say "specific" because both definitions say generally that there are things that are not/are antisemitic, respectively. For instance, IHRA says criticism of Israel similar to that leveled at other countries is not antisemitic, JDA says treating Jews-qua-Jews as agents of Israel is antisemitic. But these are generalities; the question is whether they'll ever cash out in a live controversy. 

For IHRA, think about settlement boycotts or labeling requirements, or calls to condition aid to Israel. These are sometimes called antisemitic, but perhaps under the best reading of IHRA they should not be. But will people who promote the IHRA definition ever use it to exonerate? Will they ever say in a specific, live controversy, "no, contrary to what's being claimed, under IHRA that's not antisemitic, and the people claiming that it is are simply wrong?" And JDA raises the same question, albeit from the opposite angle. We wonder: will JDA proponents ever wield JDA to say, in a specific, live controversy, "yes, this is antisemitic, and the people denying that its antisemitic are simply wrong?" The cynics suspect the answers are no. In any remotely contestable case, nobody will ever be found innocent under IHRA, and nobody will ever be found guilty under JDA.

Are the cynics right? The JDA maybe has a good test case in front of it right now, with the controversy over David Miller, until recently a professor at the University of Bristol. Miller's defenders are, of course, contending that the campaign against him is the fruit of IHRA, demonstrative of IHRA's propensity to "ban all criticism" of Israel. But to my eyes, the Miller case is less a test case for IHRA than it is for JDA. Leave aside the academic freedom implications of him being sacked, which raise a separate problem (it is perfectly cogent to say that Miller is an antisemite and academic freedom nonetheless protects antisemitism). Is Miller -- who called interfaith programming between Jews and Muslims in London a Zionist trojan horse, who said all campus JSocs (Jewish Societies) are "pawns" and agents of the Israeli government who have been "directed by the State of Israel" to engage in campaigns of harassment and intimidation -- an antisemite? 

For my part, I've often suspected that, among JDA drafters, David Miller was their imagined template example of someone "left" that is properly called antisemitic. That's pure speculation on my part. But it does make for a decent-ish test of a circumstance where JDA can and should, in a specific case, say "yes, this is antisemitic, and the people contending he was engaged in mere 'criticism of Israel' are wrong."

I hope JDAers pass the test. But make no mistake: a large portion of the JDA's constituency comprises those for whom its utility is solely in its capacity to deny antisemitism, not identify it. The temptation will be to hem and haw and hedge, or just stay silent -- a strategic ambiguity that lets JDA continue to serve as the avatar of antisemitism denial. If JDA folks do what they should do, and are clear and unambiguous that Miller is an antisemite, they will almost certainly lose a lot of their base of support.

What LinkedIn Thinks I Do

I was fiddling with my LinkedIn profile today, and I came across a "suggested" summary of my professional career path. So, here's what LinkedIn's AI thinks I do and have done:

I'm an Senior Research Fellow & Lecturer in Law at the UC Berkeley's Office of Immigration and Nationality, working on compliance, tax, immigration and human rights issues for clients in various industries. I focus on federal immigrant policy and have worked with a variety of international businesses, including multinational corporations and universities. Previously, I was a civil litigator for eight years. In that time, I worked as an associate trial lawyer and appellate counsel.

I feel like its on trend to be anxious about how on-the-nose tools like this have gotten, so it's nice to see one that is just obviously, manifestly, inaccurate in essentially all of its components.

To be clear: I do not and never did work at Berkeley's "Office of Immigration and Nationality" (assuming such an office exists, which I'm not sure it does). My "focus" is absolutely not on immigration law or policy (though the half minute I've spent on immigration law issues dwarfs the zero minutes I've spent on tax issues). And I was never really a civil litigator at all (I was primarily a regulatory attorney) -- certainly not for eight years, which is far longer than the time I spent as a practicing lawyer. I do suppose it is technically true that I have worked with "a variety of international businesses" at some point in my career.

UPDATE: Basically, here's what we're working with ("So much of that was wrong!").

Three Feet Shorter

When the Supreme Court upheld an affirmative action program at the University of Michigan Law School as pursuing the compelling state interest of "racial diversity", Justice Scalia was scornful. The values of diversity -- inclusivity, tolerance, learning to work with people across differences -- were best taught to students "three feet shorter and twenty years younger" than the typical law student.

Four years later, though, when the Court in the Parents Involved case considered programs securing racial diversity in primary and secondary schools, this logic disappeared. It turned out that Scalia and the conservatives didn't want to inculcate these values at a younger age; they just didn't want them inculcated at all.

I was thinking about this upon reading Ayaan Hirsi Ali's fusillade against "critical race theory" in primary schools. The scare quotes are appropriate, since as Ali concedes, the racial justice initiatives she objects to in primary education do not go by the name "critical race theory" even as the right labors feverishly to place them under the label. In a truly spectacular leap of logic, that the right calls things "critical race theory" that are not "critical race theory" is not evidence that they're simply making things up, but rather is demonstrative of the theory's proponents showing a "remarkable ability to shape-shift".

But I digress. Ali's main argument is that affirmative action programs have been "clear failure", listing off a bevy of racial inequalities that still exist in the fifty years following the civil rights revolution. Of course, the crit would suggest that this shows the problems of racism in America run deeper than a few diversity initiatives can fix; and even the non-crit might find it out to see evidence of ongoing racial inequality mustered as proof that we need to think less about matters of racial inequality. But Ali, ever the iconoclast, puts the entirety of the blame on affirmative action itself -- specifically, Richard Sander's "mismatch" theory. Leave aside the various criticisms one might have of that theory. Its core logic is that, by the time we reach the point of a collegiate affirmative action program, it's too late to undo the failures of the primary educational system to provide the foundations and skills necessary for students of color to thrive in elite university settings. The intervention occurs too late in the day.

So the obvious implication is that we should be investing our energies earlier in the process -- concentrating on students when they are twenty years younger and three feet smaller. And yet, it turns out, Ali -- like her fellow conservatives -- doesn't support this either. In fact, they're even more enraged when the persons concerned about racial inequity begin focusing on the primary rather than the collegiate level (even though the "mismatch" arguments that nominally undergirded their objection to the latter have no relevance to the former). The objection, it turns out, has nothing to do with the when, but is entirely about the what: an ideological opposition to trying to dismantle racial inequalities in education -- no matter how tall or short the students may be.

The Constrained Constitution and the SALT Deduction

Yesterday, the 2nd Circuit rejected several states' challenge to the elimination of the "SALT" (State and Local Tax) deduction from federal income taxes (basically, allowing you to deduct state tax payments from your federal income). The elimination occurred under the Trump administration, and it was a savvy play -- it mostly affects "blue" states (which tend to have higher state taxes), and it mostly affects wealthy residents of those states (who pay the most in state and local taxes). One would not be wrong to suspect that the former concern predominated over the latter in terms of the Trump administration's logic.

Nonetheless, the Trump administration's potentially venal motives do not themselves make out a constitutional violation, and the Second Circuit here found none. That was so even though, as Jonathan Adler observed, from a purely partisan perspective the states drew a very favorable panel. It didn't matter -- there's no basis in the constitution for why any particular state is entitled to a particular tax regime, so the blue states lose.

I actually am, however, a bit curious as to how conservative legal observers explain this outcome by liberal justices. We often here that only conservative-style originalism serves to "constrain" judges and prevent them from simply voting their partisan preferences. Yet these judges are not conservatives and, it seems fair to assume, were likely not fans of the Trump administration's gambit here. So what caused them to nonetheless reject the suit? The answer has to be something that constrains liberal judges from merely voting their policy preferences (at least some of the time) -- but the originalist/textualist apologia typically denies that said "something" can exist.

Billions Thoughts

But not quite billions of thoughts. Anyway, some spoilers for Billions, which just wrapped its (split) season five today.

• The terms "pro-" and "antagonist" don't mean much on Billions, but whatever Mike Prince was this season -- foil? -- he never quite sold me. Rebecca Cantu was better. I do think, however, that Prince was well set up to be a good antagonist (fine, I'll use it) next season. Him trying to operate the remainder of (the former) Axe Capital from inside the belly of the beast is at least a new plot beat.
• Didn't fully catch how it was the Wags beat his criminal rap (yes, they said he never signed the paperwork -- but was that just made up? Did they forge something? It seems everyone just gave up kind of quickly on that).
• Not quite sure I get what they're going with re: Taylor's character arc. Is the idea that they're struggling to hold onto their humanity? Their idealism? Why did they suddenly seem so torn up about (seemingly) successfully taking down Axe? I don't know. The belated advice to Rian ("run") didn't really land for me, and Rian herself isn't a well-developed-enough character for it to matter that she seemingly decided not to "run".
• Billions sometimes has a habit of seemingly forcing characters off the show suddenly and without much logic. See, e.g., Sara and Lauren -- both of whom I consider to be regrettable departures. (And yet, somehow, Spyros survives).
• On that note: if Dollar Bill and Mafee "teaming up" and leaving Axe Capital means next season will involve the exciting side adventures of Bill and Mafee (and hopefully Bonnie too), I'm all for it. If it means they're being written off the show, I'm absolutely furious. Mafee is my favorite! I just want him to be happy.
• I know we checked in on Axe's kids at boarding school earlier in the season (when Axe got so caught up in his own head about "winning" that he unknowingly but brutally snuffed out the faint speck of conscience in his own son), but man are they ever an after thought. At least Chuck's daughter got a nice moment in the omelette scene. I actually think this show is worse without Lara.
• As a law professor, I hated -- hated -- everything involving the law teaching and law students at Yale. Let us speak of it no more.
• I'm torn on the Axe/Wendy romance, and it's the opposite of what typically happens in shows like this. Normally, a show with this much interaction between a male and female lead eventually tries to force a will they/won't they, even if there isn't real chemistry between them. Here, even though I objectively prefer and find genuinely interesting their deep platonic/professional bond, there's undeniable chemistry between Axe and Wendy -- the show wasn't just pulling it out of air.
• Still waiting on a truly pure, juicy, Sacker storyline.

All in all, Billions remains one of my favorite shows on television right now, and I can't wait for the quick turnaround to season six (January 2022)!