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Ken Marcus

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Federal Discrimination Investigation Assumes Students, Like Home Buyers, Can Be Illegally 'Steered'

Peter Schmidt, The Chronicle of Higher Education
October 11, 2011

Breaking new ground in its enforcement of civil-rights laws, the Education Department is investigating whether a Columbia University professor discriminated against a student by steering her away from a course on the basis of her Jewish background.

In the enforcement of federal fair-housing laws, "steering" is said to occur when real-estate agents—even if well-intentioned—consider potential home buyers' race or ethnicity in directing them toward some neighborhoods and away from others. The investigation of Columbia University by the Education Department's Office for Civil Rights is examining whether something analogous might have happened there, when an academic department chairwoman allegedly discouraged an Orthodox Jewish student from taking a class taught by a professor who has been accused of anti-Israel bias.

Although the Education Department has often investigated complaints that elementary or secondary schools illegally tracked students into low- or high-ability classes based on their ethnicity or race, several veteran higher-education lawyers said Tuesday that they could not recall any similar investigation of alleged discrimination in academic advising at a college.

In considering the idea that bias in academic advising could violate federal civil-rights laws, the Office for Civil Rights could be opening the door to similar investigations involving other forms of discrimination, such as cases involving female students who were discouraged from enrolling in engineering programs considered unwelcoming to women, or black students whose race was cited by advisers who encouraged them to major in black studies.

Arthur L. Coleman, a former U.S. deputy assistant secretary of education in the Office for Civil Rights who now is a managing partner at EducationCounsel, a firm that advises colleges, declined to comment specifically on the Columbia controversy. But in general, he said, colleges seek to avoid even subtly steering students into certain classes or fields based on their race, ethnicity, or gender.

Noting that colleges' efforts to promote diversity on campus are premised on the assumption that such diversity promotes the robust exchange of ideas, Mr. Coleman said any steering of students to avoid exposing them to disagreements in the classroom "raises a set of fundamental concerns" related to a college's educational mission.

Sheldon E. Steinbach, a higher-education lawyer who was the American Council on Education's general counsel from 1969 to 2006, said the allegation of bias in advising at Columbia is itself "highly unusual."

"What is done in the course of academic advising varies dramatically, from very caring and thoughtful to 'Tell me what you want me to sign,'" Mr. Steinbach said. But, he said, "generally, when faculty members suggest one not take a course, it is solely for academic reasons."

Charlie L. Nutt, executive director of the National Academic Advising Association, said in an e-mail that such controversies "demonstrate clearly why all academic advisers must be given comprehensive and ongoing professional development in the field of academic advising, which includes not only information about institutional policies and procedures but also information and practice in the areas of ethical and legal issues impacting the advisers' work with students."

Complaint of Anti-Semitism

The Office for Civil Rights, which last month informed Columbia of its plans to look into the student's complaint of anti-Semitism, has a policy of refusing comment on pending investigations and did not respond Tuesday to requests for its letters to Columbia or the student's lawyer.

The agency mounted its investigation in response to a complaint filed on behalf of the student by Kenneth L. Marcus, who was the Education Department's assistant secretary for civil rights from 2002 to 2004 and now is executive vice president of the Institute for Jewish and Community Research, an organization based in San Francisco.

Mr. Marcus helped persuade the Office for Civil Rights, which under federal law leaves the handling of complaints of religious discrimination to the Justice Department, to announce last fall that it intends to more aggressively investigate charges of anti-Semitism in which the discrimination might be based partly on ethnicity.

As director of his institute's campaign against anti-Semitism, Mr. Marcus has prodded the Education Department to investigate complaints of anti-Semitism at higher-education institutions such as the University of California at Santa Cruz. In April, the American Association of University Professors issued a statement that cited the Santa Cruz investigation in arguing that some complaints of anti-Semitic incidents on American college campuses do not involve actual discrimination but instead represent attempts "to silence anti-Israel discourse and speakers."

The intended target of the complaint about Columbia University was not the faculty member who advised the student but the faculty member whose class the student was discouraged from taking: Joseph A. Massad, a controversial Palestinian scholar who has been accused by some Jewish organizations of teaching anti-Semitism. Mr. Marcus said the Office for Civil Rights has told him it did not plan to investigate Mr. Massad because it lacks evidence of bias against Jewish students in his classroom. Mr. Massad did not respond to an e-mail Tuesday seeking comment.

An Advising Issue

As first reported last week in Tablet, an online magazine on Jewish life, in January the student, a sophomore, sought course-taking advice from Rachel McDermott, chair of the Asian and Middle Eastern cultures department at Barnard College, which is affiliated with Columbia. Ms. McDermott reportedly repeatedly told the student, whose name has not been publicly released, that she would be uncomfortable in a class on the Arab world taught by Mr. Massad.

The student argued that she would be able to tolerate being in a classroom where she would be exposed to statements against Israel, but finally was persuaded to instead take a class on ancient Jewish history, Tablet reported. Ms. McDermott could not be reached Tuesday for comment.

The complaint filed with the Education Department in response does not name Ms. McDermott but Columbia University as a whole. It accuses the university of violating the student's rights under Title VI of the Civil Rights Act of 1964, which bars colleges that receive federal funds from engaging in discrimination based on race or national origin.

Joanne Kwong, a spokeswoman for Barnard, said in a written statement issued in response to the investigation: "We do not tolerate discrimination by any member of the college community, so we are carefully exploring and reviewing the claims made about this alleged incident. As this is a pending investigation, it would be inappropriate and premature to comment any further at this time."

Columbia University issued a statement in which Lee C. Bollinger, its president, said his institution "has strong policies against discrimination" and treats allegations of discrimination "very seriously." He added, "It is important to note that the allegations of the complaint appear to relate to an individual incident of academic advising at Barnard College and in no way involve Professor Joseph Massad. Based on these facts, therefore, it is extremely unfair for Professor Massad to be cited in a matter in which he played no part whatsoever."

In an interview Tuesday, Mr. Marcus said, "When President Bollinger says that the problem is with the advice given at Barnard, he is missing the point." Mr. Marcus argued that "the most important thing about the advice is not that it was wrong, but that it might have been right" in concluding that Mr. Massad's class was "an inappropriate environment for Jewish students."

"Essentially, they are ghettoizing Jewish students within Israel studies, and that is not a good thing for Columbia or anyone else," Mr. Marcus said. In keeping the student from taking a class on Arab culture, they "diminish her horizons," he said.

In a statement posted on the institute's Web site, Mr. Marcus said: "If there is a problem in Professor Massad's classroom, as the Barnard chair may believe, then steering Jewish students away is not the solution. Nor is it the biggest problem. The biggest problem may be the failure of some universities to take anti-Semitism allegations seriously, especially when academic freedom is frivolously invoked."

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