A year and a half after the federal government extended a landmark civil rights law to cover Jewish students, Jewish groups have yet to succeed in using this law against what they see as anti-Semitic anti-Israel activity on campus.
A survey by the Forward has found that at least 10 anti-Semitism cases have been filed with either the Department of Education or in court under Title VI of the 1964 Civil Rights Act. In only one of these cases so far has the complainant been favored: a high school case in which Israel played no role.
Six of these cases involve anti-Israel activity. One has been closed after administrative review. Another case has been rejected by a federal court, but the complainant has been invited to amend the complaint.
For some, this track record raises questions about the utility of civil rights law to combat campus anti-Israel activity. But advocates for Jewish students say it’s too soon to come to conclusions about what kinds of cases will work under the new law.
“We are still in the testing phase and seeing where these cases are going to come out,” said Deborah Lauter, the Anti-Defamation League’s director of civil rights. “We are pleased to see the Office for Civil Rights taking cases seriously as they are required to do, and I think it is really too early to tell.”
Historically, Title VI of the 1964 Civil Rights Act was used during the 1960s to desegregate public schools in the South. It prohibits discrimination based on race, color or national origin, but does not include religion as a protected category. But in October 2010, Secretary of Education Arne Duncan issued a letter saying that Title VI would henceforth cover members of religious groups on the basis of shared ethnic characteristics, thus opening the door for Jews to file complaints. Several existing cases involving campus anti-Semitism were grandfathered-in then under the newly-redefined rules.
Title VI discrimination complaints can be filed in federal court as civil cases or, more commonly, with the DOE, where they are subjected to administrative review. But anti-Semitism cases put before a court may face a more uncertain review. Unlike the DOE, the U.S. Supreme Court has not, to date, ruled on whether members of religious groups fall under the law’s purview if they have perceived ethnic characteristics.
Which ever route a complainant chooses, in order to succeed, she must show that the institution in question was remiss in protecting a student from harassment due to her race or ethnicity — not just that an act of harassment occurred. A school found in violation can face a range of measures, including loss of its federal funding.
Of the six anti-Semitism cases involving Israel, one, an administrative case against Barnard College, was thrown out earlier this year. A second case, at the University of California, Irvine, was tossed out in 2008 but is now being reconsidered in light of the DOE’s new policy. A federal judge recently dismissed a third case, filed against the University of California, Berkley. But the judge allowed the plaintiffs — Berkeley alumnus Jessica Felber and current student Brian Maissy — to amend a portion of the complaint, which they have done. Three other cases, including another one at UC Irvine, are still under investigation.
The one clear-cut instance of anti-Semitism found so far occurred not at a university but at a Virginia public high school. In that case, the OCR found that a student at Deep Run High School, in Glen Allen, Va., faced harassment that was “sufficiently serious” to limit the student’s ability to participate in school. That student, a Jewish sophomore, was bullied over the course of the 2009–2010 school year, as peers in his world history class drew Nazi swastikas and pictures of Adolf Hitler on the board and placed pictures of the student on chairs and on stairs so that people would walk and sit on them. The students also affixed a picture of him to a piñata with the words “Sponge Bob Jew Pants” and a sexual slur based on the sophomore’s last name.