Civil Rights for Jewish Students

As Quad readers have seen, the Institute has long been warning of the resurgence of campus anti-Semitism and the refusal of the Education Department’s Office for Civil Rights (OCR) to properly address it. This has been the theme, for example, of Jewish Identity and Civil Rights in America and Uncivil University (2d ed.). This week, there have been two important victories in the fight against anti-Semitism in higher education.

First, the U.S. Department of Justice issued an opinion letter concurring in the legal analysis which this author provided in OCR’s 2004 critical but controversial Dear Colleague letter. In that letter, OCR announced that it would prosecute anti-Semitism cases in federally funded schools, colleges and universities. The Institute has developed the legal basis for this provision in a series of academic articles such as Jurisprudence of the New Anti-Semitism and Anti-Zionism as Racism, which have been widely read among policymakers, as well as in the newly published Jewish Identity volume. The Justice Department’s new opinion letter provides a strong vindication of this analysis.

Second, and more importantly, OCR issued a second opinion letter, which not only affirms my 2004 policy but also provides additional clarification. This is very important, because as we showed in this recent Commentary article, OCR had retreated from the 2004 policy during the six years since it was issued. In fact, OCR’s failure to enforce the 2004 policy is the main reason that it dismissed the Zionist Organization of America’s landmark complaint alleging a hostile environment against Jewish students at the University of California at Irvine.

The new letter announces that Jewish students will once again receive the protection of the civil rights laws: “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).”

OCR has downplayed this important policy decision, characterizing it as a “clarification” (rather than a policy reversal) and burying it within a larger guidance document that deals mostly with bullying in the public schools. Nevertheless, this new policy announcement is big news for Jewish college students. Not only has OCR reversed its prior policy of non-enforcement in anti-Semitism cases, but it has also provided useful new guidance.

Under the new guidance, four points are especially worth noting:

• Unlawful anti-Semitic harassment on federally funded campuses “does not have to include intent to harm.” This is significant, because the perpetrators often deny that they are anti-Semitic and say that they did not mean to harm any individual Jews. Under the new policy, this simply does not matter.

• Actionable conduct need not be “directed at a specific target.” In other words, the offensive conduct need not be limited to attacks on a particular student. Oftentimes, anti-Semitism is expressed in public lectures and in literature distributed on campus. Under OCR’s approach, the fact that individual students are not specifically targeted is not an excuse.

• There need not be “repeated incidents” to form a hostile environment. In other words, if the misconduct is bad enough, one incident can be actionable. Clearly OCR will be more likely to find a violation if multiple incidents are documented, but one severe incident is sufficient according to OCR’s latest pronouncement.

• It is not enough to punish the perpetrator. This is a big one. When a hostile environment is formed, OCR says that it is not enough for the institution to punish the student or organization that is responsible. Rather, the institution must “take prompt and effective steps reasonably calculated to end the harassment and prevent its recurrence.” Beyond punishing the perpetrators, this can include “publicly labeling the incidents as anti-Semitic” (a very important step!) and strengthening anti-harassment policies, procedures, education, training and outreach for the entire institutional community. But disciplining particular offenders is not sufficient.

These are all important weapons that are now part of the arsenal of those who are fighting against anti-Semitism and bigotry in American educational institutions. Unfortunately, they are still not enough. OCR’s new policy is a hugely important step forward, but more needs to be done.

The most important omission in the new OCR policy is any discussion of anti-Semitic incidents that emerge out of hostility to Israel. As the State Department has acknowledged, much contemporary anti-Semitism is related in some fashion to anti-Israeli animus. Often anti-Semitism is disguised as anti-Zionism in ways that make it difficult to identify. Some agencies, like the State Department and the European Union’s Fundamental Rights Agency (formerly the EUMC) have developed useful criteria for distinguishing between anti-Semitism and legitimate criticism of Israel. OCR has not done this, and prior experience suggests that the agency has had considerable difficulty with this issue. The biggest question facing the agency’s enforcement of its new policy is whether it will correctly identify those forms of anti-Israelism that are in fact disguised anti-Semitism.

The larger problem, though, is that the new OCR policy is an informal guidance document. Although it is currently binding on OCR officials, it has two major limitations. As we have seen with the 2004 policy, future OCR leaders may or may not adhere to this policy. It does not have the same strength or durability as a statute would have. Moreover, it cannot exceed the scope of the statute which it enforces (i.e., Title VI). For this reason, it retains an awkward exception of anti-Semitic incidents which are purely religious in nature. It is all too easy to imagine this exception swallowing the rule if OCR officials choose to construe the new policy narrowly in the future. For this reason, we will continue to push for new legislation in the next Congress which will statutorily bar religious discrimination in federally funded schools and colleges (except religious schools). Despite these omissions, however, the new OCR policy is an occasion for celebration. The war must still be fought, but an important battle has been won.