White House Summarizes Recent Initiatives to Combat Antisemitism and Islamophobia at Schools and Colleges

The White House yesterday issued a Fact Sheet: Biden-⁠Harris Administration Takes Action to Address Alarming Rise of Reported Antisemitic and Islamophobic Events at Schools and on College Campuses.  It announces recent initiatives and updated resources from the Department of Justice, the Department of Education, the Department of Agriculture, and the Department of Homeland Security to counter the increase in antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas terrorist attacks in Israel.

8 Federal Agencies Clarify When Title VI Bars Discrimination Related to Religion

The White House announced yesterday that eight federal agencies have "clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities."  The agency actions are seen as part of President Biden’s National Strategy to Counter Antisemitism.  Title VI of the 1964 Civil Rights Act covers discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. It does not explicitly bar religious discrimination.  The agency Fact Sheets publicized by the White House each focuses on the kind of discrimination against persons of a particular religion that could come within the scope of Title VI. Here are the agencies' interpretations:

Department of Agriculture Fact Sheet; Department of Health and Human Services Fact Sheet; Department of Homeland Security Fact Sheet; Department of Housing and Urban Development Fact Sheet and Memorandum; Department of Interior Fact Sheet; Department of Labor Fact Sheet; Department of Treasury Fact Sheet; Department of Transportation Fact Sheet.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

DHS Issues New Interim Final Rule On Asylum Application Procedures

Yesterday, in a 512-page Release (full text), the Department of Homeland Security adopted an Interim Final Rule (IFR) on procedures for deciding on applications for asylum. It summarized the new rule in part as follows:

The principal purpose of this IFR is to simultaneously increase the promptness, efficiency, and fairness of the process by which noncitizens who cross the border without appropriate documentation are either removed or, if eligible, granted protection. The IFR accomplishes this purpose both by instituting a new process for resolving the cases of noncitizens who have been found to have a credible fear of persecution or torture and by facilitating the use of expedited removal for more of those who are eligible, and especially for populations whose detention presents particular challenges.

Expedited Asylum Procedures Proposed By DOJ and DHS

The Department of Homeland Security and the Department of Justice announced yesterday that they are publishing a 140-page Notice of Proposed Rulemaking (NPRM) (full text) to expedite handling of asylum claims for individuals encountered at or near the border. Asylum may be granted to a noncitizen who shows past, or a well-founded fear of future, persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The NPRM summarizes the proposed changes:

Under the proposed rule, such individuals could have their claims for asylum, withholding of removal ...  or protection under ... the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ... initially adjudicated by an asylum officer within U.S. Citizenship and Immigration Services.... [I]ndividuals who are denied protection would be able to seek prompt, de novo review with an immigration judge....

DOJ Proposes Changes In Asylum Procedures

The Departments of Justice and Homeland Security announced yesterday that they have submitted to the Federal Register a Notice of Proposed Rulemaking (full text) that

will create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations.

Among the bases for asylum are a "well-founded fear of persecution on account of ... religion [or] membership in a particular social group...."   The proposed rule changes would (among other things):

Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA)...

Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard...

Head of DHS Faith Based Office Resigns Over Anti-Muslim, Anti-Black Statements

CNN reports that Rev. Jamie Johnson resigned yesterday as head of the Department of Homeland Security's Center for Faith-Based & Neighborhood Partnerships.  His resignation stems from inflammatory statements about Blacks and Muslims which Johnson made in radio appearances in years prior to his appointment to his position at DHS.  For example, in one appearance he said in part:

I agree with Dinesh D'Souza, your friend and mine, who says really all that Islam has ever given us is oil and dead bodies over the last millennia and a half.

Trump Administration Modifies List of Grants For Combating Violent Extremism

As reported by CNN, the Department of Homeland Security on June 23 announced 26 organizations that have been approved for awards under the Countering Violent Extremism Grant Program. Using new criteria, the list eliminates 11 of the 31 organizations that had initially been approved by the Obama Administration for grants, and adds new awardees, mostly law enforcement organizations.  Among those eliminated are Life After Hate, a group whose purpose is to rehabilitate former neo-Nazis and other extremists. Also eliminated from funding is the Muslim Public Affairs Council which works to see that mosques are not used by terrorists for recruitment.