By Peter Schmidt, The Chronicle of Higher Education
October 28, 2010
In a move being hailed by some Jewish organizations as a major and welcome shift, the U.S. Education Department's Office for Civil Rights has signaled that it plans to step up its efforts to protect Jewish students from anti-Semitism under a federal law that bars colleges from discriminating based on national origin or ethnicity.
By adopting such a position, however, the office might have increased the likelihood that it will need to grapple with the thorny question of whether it should ever treat verbal or symbolic attacks on Israel or Zionism on college campuses as amounting to anti-Semitic acts that violate federal anti-discrimination laws.
"The elephant in the room is anti-Zionism," said Kenneth L. Marcus, director of the Initiative on Anti-Semitism at the Institute for Jewish and Community Research, who played a key role in the effort to persuade the department to take a stronger stand against anti-Semitism. "Lots of observers will be closely watching to see whether OCR can take a firm but reasonable line" in dealing with cases in which criticisms of Zionism or Israel appear to have an anti-Semitic component, he said in interview Thursday.
Mr. Marcus said he wants the civil-rights office to take the position—already adopted by the European Union's advisory agency on human rights and freedoms—that criticisms of Israel cross the line into anti-Semitism when they are based on anti-Jewish stereotypes.
Morton A. Klein, president of the Zionist Organization of America, said his group similarly has been urging the civil-rights office to take the position that certain statements about Israel—such as arguments that Israel should not exist, or comments comparing the Israeli treatment of Palestinians to the actions of the Nazis—amount to anti-Semitic speech that the Education Department should take action against.
Calls to use federal civil-rights laws to curtail such speech, however, are almost certain to meet resistance from advocates of the First Amendment and academic freedom.
Rachel Levinson, senior counsel for the American Association of University Professors, said applying anti-discrimination law in such a manner would result in there being entire areas of scholarship that "might be cut off, or where people might be reluctant to tread."
Robert M. O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, in Charlottesville, Va., said he thinks college officials should condemn statements about Israel that are blatantly anti-Semitic, but they should not feel compelled under federal law to do so. Any speech that does not fall under legally established, narrow exceptions to the First Amendment—such as speech that is obscene or defamatory or incites crime—"ought to be protected," he said.
Religion or Ethnicity?
The civil-rights office's intent to more aggressively fight anti-Semitism at educational institutions is tucked within a "Dear Colleague" letter on the issue of student bullying that Russlyn H. Ali, the department's assistant secretary for civil rights, issued to schools and colleges on Tuesday. Although the letter focuses on the civil-rights office's plans to treat some forms of student bullying and harassment as potential violations of federal anti-discrimination law, it contains language indicating that the department plans to respond to complaints of anti-Semitic discrimination much more readily than it has in recent years.
"This is a dramatic change in OCR's approach to these cases," Mr. Marcus said.
U.S. Rep. Bradley J. Sherman, a California Democrat who for two years had urged the civil-rights office to take such a position, issued a written statement that said: "The policy is now clear: Colleges and universities will no longer be permitted to turn a blind eye when Jewish students face severe and persistent anti-Semitic hostility on their campuses. The schools will now be compelled to respond."
The debate over how the office should approach complaints of anti-Semitism revolves around the complicated—and politically charged—question of when bias against Jewish people amounts simply to religious discrimination, or when it should also be regarded as discrimination based on ethnicity or ancestry.
The idea that Jews constitute a distinct race was infamously espoused by Adolf Hitler. But in the United States, it has at times served as a foundation for legal protection for Jewish people, as in a 1987 U.S. Supreme Court ruling—in the case Shaare Tefila Congregation v. Cobb—that held that Jewish people are covered under the prohibitions against racial discrimination in the Civil Rights Act of 1866 because they were widely thought of here as a distinct race when that measure was passed.
Title VI of the Civil Rights Act of 1964 authorizes the Education Department to deny federal funds to educational institutions found to discriminate based on race, color, or national origin. It does not, however, authorize the Education Department to take such actions in cases of religious discrimination, which instead fall under the jurisdiction of the Justice Department.
The Title VI enforcement policy that the Education Department has had on its books since 2004 states that the agency cannot ignore complaints of anti-Semitism because "Jewish heritage may include both religious and ethnic characteristics." During President George W. Bush's second term, however, the Office for Civil Rights had interpreted that policy as not covering anti-Semitic acts that do not overtly involve bias based on ethnicity.
Many Jewish organizations had reacted angrily when the office in 2007 refused to investigate some allegations of anti-Semitism in a complaint against the University of California at Irvine on the grounds that the alleged acts amounted to religious, and not ethnic, discrimination. The Zionist Organization of America has appealed that decision, and filed a separate complaint against the University of California at Irvine that led the Office for Civil Rights to undertake a second investigation in 2008.
In a letter sent to the Education Department in March, 13 Jewish organizations—including the Anti-Defamation League, Hillel, and the Zionist Organization of America—urged Secretary of Education Arne Duncan "to clarify that the Office for Civil Rights has clear authority to investigate and remedy instances of harassment and intimidation against Jewish students."
When interviewed by The Chronicle in April, Ms. Ali, the assistant secretary for civil rights, acknowledged struggling with the question of how to apply Title VI to anti-Semitism complaints, saying, "I lose sleep over this one."
Clarification of Existing Policy
The Education Department could not have formally changed its Title VI enforcement policy without a lengthy process inviting public comment. In an interview Wednesday, Sunil Mansukhani, the civil-rights office's deputy assistant secretary for policy, characterized the discussion of anti-Semitism in its letter on bullying as a needed clarification of how the office plans to enforce the existing anti-Semitism provisions in Title VI.
This week's letter, Mr. Mansukhani said, sends colleges and schools the message that his agency plans to act against "certain types of discrimination based on ancestry—real or perceived." When his office gets complaints of anti-Semitic harassment, he said, it will make case-by-case determinations of whether acts that appear on the surface to be motivated by religious bias in fact stem from bias against a nationality or ethnicity with which that religion is associated.
The "Dear Colleague" letter says: "While Title VI does not cover discrimination based solely on religion, groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith. These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g. Muslims or Sikhs)."
Mr. Marcus, of the Institute for Jewish and Community Research, who served as the Education Department's assistant secretary for civil rights from 2002 to 2004 and drafted the Title VI enforcement policy, said the letter issued by Ms. Ali this week "is a dramatic change in OCR's approach to these cases" and "returns the agency to the 2004 policy after six years of backsliding."
"The fact is that very, very few incidents of anti-Semitism in American higher education are exclusively religious," Mr. Marcus said. "They almost always have some ethnic or ancestral component to them."
"The key question," Mr. Marcus said, "is whether OCR will take its own policy seriously and enforce Title VI except in those rare instances where someone faces purely theological bias."
The Zionist Organization of America issued a statement in which top officials there said they were "enormously gratified" with the Education Department's anti-bullying letter. "Now, when Jewish students are being harassed or intimidated, or facing a hostile anti-Semitic school environment, their schools will no longer be able to ignore the problem, or make token efforts to redress it," the statement said. "There will now be financial and other consequences under federal law if colleges and universities do not respond to end the anti-Semitic harassment and prevent it from recurring."
Mr. Marcus said he is hoping that, in deciding whether to treat anti-Zionist or anti-Israeli statements as amounting to anti-Semitic harassment, the Education Department "takes seriously" a "working definition of anti-Semitism" adopted in 2004 by the European Union Monitoring Centre on Racism and Xenophobia, now known as the European Union Agency for Fundamental Rights. That advisory body's definition said anti-Semitic statements can include statements that deny the Jewish people their right to self-determination, apply a double standard to Israel "by requiring of it a behavior not expected or demanded of any democratic nation," hold Jews collectively responsible for the actions of Israel, or compare contemporary Israeli policies to the policies of the Nazis.
Cary Nelson, president of the American Association of University Professors, said he could conceive of a faculty member's criticisms of Israel crossing the line into anti-Semitism if they included, for example, a "rant" against Jewish people in general. And in the case of Kaukab Siddique, a tenured associate professor of literature at Lincoln University, in Pennsylvania, who has come under fire for calling for the destruction of Israel, Mr. Nelson said Thursday that the university has grounds to question Mr. Siddique's professional competence, given his denial that the Holocaust occurred.
But, Mr. Nelson said, statements comparing the Israeli government to the Nazis or questioning the right of Israel to exist as a nation state are well within the bounds of discourse covered by academic freedom. The European Union agency's definition, he said, is "unacceptable" and "certainly is not compatible with academic freedom."
The Academic Senate of the University of California at Santa Barbara last year investigated a sociology professor who had been accused of anti-Semitism for sending students an e-mail message that likened Israel's treatment of the Palestinians in Gaza to Nazi atrocities against Jews. The investigation was later dropped, however, as was a subsequent Academic Senate investigation of its own handling of the matter.