“What Do Universities Owe Jews under Title VI, and Why?” with Robert Katz, Indiana University Robert H. McKinney School of Law

What do universities owe Jews under Title VI of the Civil Rights Act of 1964? The answer depends on why Title VI protects Jews – that is, its legal basis for doing so. Title VI prohibits universities from tolerating discrimination “on the ground of race, color, and national origin.” Notably, Title VI –unlike Title VII—does not address discrimination based on “religion.” Title VI’s disjunctive language invites interpreters to disaggregate Jewishness into “race” and “religion” and to extend the statute’s protections to Jews in their racial capacity but not their religious. If this interpretive move succeeds, universities might be permitted to address anti-Jewish discrimination only when motivated by racial antisemitism, leaving them free to ignore such discrimination when motivated solely by religious antisemitism.
This disaggregative approach runs counter to strong precedent for the proposition that “Jewishness” as such is a protected characteristic under federal anti-discrimination law. As applied to Jews, the terms “race” and “religion” serve as statutory placeholders for Jewishness, which may be serviceably attached to either category, or both. Moreover, this approach is sociologically inaccurate: as an ethnoreligious phenomenon, Jewishness cannot be meaningfully reduced to either ethnicity or religion. Lastly, there are good reasons to avoid categorizing Jews as a “race” under Title VI, as this risks reinforcing racialized thinking about Jews in broader society. This is playing with fire.

Robert Katz’s new casebook is “Antisemitism and the Law.” It serves as a vital resource for understanding the legal history of antisemitism and legal strategies to combat it. It explores how legal systems have been wielded both to oppress Jews and to fight antisemitism, offering a global and historical perspective on the intersection of law and antisemitism.