Are Jews an ethnic or a religious group?
This perennial question is now at the heart of a Jewish communal effort to get the U.S. Department of Education more deeply involved in probing allegations of antisemitism on college campuses.
Thirteen national Jewish organizations have sent a letter to Secretary of Education Arne Duncan arguing that the department’s Office for Civil Rights has adopted a policy that fails to protect Jewish students from antisemitic harassment on college campuses.
The March 16 letter urges the department to address incidents of campus antisemitism under its mandate to investigate instances of discrimination on the basis of race and national origin. The Jewish groups’ letter expressed concern that the department is treating campus antisemitism solely as a manifestation of religious bias, over which the Education Department lacks jurisdiction.
“Jewish students… should have some recourse and some remedy if they’re subject to intimidation or harassment on the basis of their identity of being Jewish,” said Richard Foltin, director of national and legislative affairs at the American Jewish Committee. “We want to make sure that the resources of our national institutions, our federal government, are in place for those students when they’re needed.”
Along with the AJC, signatories to the letter include the American Jewish Congress, the Anti-Defamation League, Hillel: The Foundation for Jewish Campus Life, the Jewish Council for Public Affairs, the Religious Action Center of Reform Judaism and the Orthodox Union, among others.
Jewish groups have grown increasingly vocal in recent years over what they see as a surge in campus antisemitism. The University of California, Irvine, an Orange County campus that has garnered national attention for the aggressive anti-Israel activism of its Muslim student group, has emerged as a focus of Jewish communal concerns.
In 2004, the Zionist Organization of America — another signatory to the letter — filed a complaint with the OCR, alleging that the U.C. Irvine administration has tolerated a hostile environment for Jewish students on campus. The ZOA cited events hosted by the campus Muslim student group featuring antisemitic and fiercely anti-Israel rhetoric, as well as allegations that Jewish students have been verbally and physically harassed.
The right-wing ZOA has previously taken the lead in arguing that the department’s civil rights office has not taken action on these complaints as a result of a policy of not considering antisemitism to be within its jurisdiction. The recent letter brings together a wide and ideologically diverse assemblage of Jewish groups behind a strong stance against the civil rights office’s current approach.
At issue is the interpretation of the Education Department’s responsibilities under Title VI of the Civil Rights Act of 1964, which bars federal funding of institutions that discriminate on the basis of race, color or national origin. The OCR, with 12 enforcement offices around the country, investigates claims of discrimination at educational institutions.
“The current policy is not to address antisemitism at all,” said Kenneth Marcus, who headed the department’s civil rights office from 2003 to 2004. “The only way a complaint will be addressed is if it’s by a black Jew who faces racism, or a female Jew who faces sexism, or a disabled Jew who faces disability discrimination. But a Jew who faces antisemitism will not be addressed.”
The Education Department did not respond to a request for a clarification of its current policy. A spokesman for the department said, “We have received the letter and are examining it.”
Marcus said that the department’s current policy represents a stark change from the policy he pursued when he headed the civil rights office. In a letter written during his tenure clarifying the office’s policy that has since been removed from the Education Department’s Web site, Marcus wrote that the office “recognizes that Title VI covers harassment of students of Jewish heritage regardless of whether the students may be Caucasian and American born.”
Marcus, who was appointed by then president George W. Bush, said that a change in policy occurred under Stephanie Monroe, his successor, also a Bush appointee. Moore could not be reached for comment. The current officeholder is Russlynn Ali, appointed by President Obama. Marcus said that she has continued Moore’s policy.
Jewish organizations point to written statements from Education Department officials as evidence that the OCR has changed its policy. In a series of letters issued between 2006 and 2009, officials wrote that the office will not investigate allegations based purely on religious di- crimination. They do not, however, definitively state whether a student’s Jewishness constitutes a solely religious identity.
In a 2009 letter responding to an inquiry from Rep. Brad Sherman, a California Democrat, Ali wrote: “It has long been OCR’s policy… that Title VI does not cover discrimination based solely on religion, including anti-Semitic harassment, intimidation, and discrimination…. However, when cases include allegations of race, color, or national origin discrimination in addition to religious discrimination, OCR would have jurisdiction over the portion of the complaint alleging discrimination on the basis of race, color, or national origin.”
Marcus said the real proof of a change in policy is in the response to a discrimination complaint filed by the ZOA regarding alleged antisemitic harassment at U.C. Irvine. That complaint is still on appeal after an investigation by the OCR determined in 2007 that no action needed to be taken by the office.
“That was an extraordinary case of antisemitism involving a huge pattern of incidents over many years,” Marcus said. “The only reason that OCR would drop that case rather than prosecuting is that they were unwilling to prosecute antisemitism of any kind. If OCR had continued to adhere to the 2004 policy, they would have handled the Irvine case very differently.”
In its response to the ZOA’s allegations about antisemitic harassment at U.C. Irvine, the OCR wrote that it had no jurisdiction over religious discrimination, but that its policy was to “carefully study the facts presented in a complaint” and to “proceed as appropriate with an investigation of a complaint involving a claim or issue of national origin discrimination, even if the complaint also has characteristics of religious discrimination.” Of the instances investigated, the civil rights office found that in many cases, the alleged harassment was not based on students’ national origin. In other instances cited, it found that the university had responded appropriately.
The ZOA’s appeal of the findings is still pending.
The Jewish groups’ letter argues that “anti-Israel and anti-Zionist sentiment” can cross “the line into anti-Semitism,” and that “conduct that threatens, harasses or intimidates particular Jewish students to the point that their ability to participate in and benefit from their college experience is impaired should not be deemed unactionable simply because that conduct is couched as ‘anti-Israel’ or ‘anti-Zionist.’” The letter, however, also acknowledges that “much vehemently anti-Israel and anti-Semitic speech can — and should — be protected First Amendment activity” and that “there is a high bar before any speech or conduct can amount to legally actionable harassment.”
Contact Josh Nathan-Kazis at firstname.lastname@example.org
Josh Nathan-Kazis is a staff writer for the Forward. He covers charities and politics, and writes investigations and longform.