Op-Ed: US Legal Tools to Fight Anti-Jewish Discrimination
Dr. Manfred GerstenfeldThe writer has been a long-term adviser on strategy issues to the boards of several major multinational corporations in Europe and North America.He is board member and former chairman of the Jerusalem Center for Public Affairs and recipient of the LIfetime Achievement Award (2012) of the Journal for the Study of Anti-Semitism.
“There is an essential paradox at the heart of the current resurgence of campus anti-Semitism. Universities should be centers of reason and tolerance, yet in the United States, they are the main source of anti-Semitism and anti-Israelism.
"There are many ways to address this problem, but one of the most important approaches is based on civil rights law. Title VI of the Civil Rights Act of 1964 is the primary legal tool available to protect Jewish and Israeli university students against discrimination. It is critically important because young people are more vulnerable and more impressionable than others. Title VI prohibits discrimination in federally funded programs on the basis of race, color or national origin.
"Historically, its main purpose was to dismantle racial segregation in schools, but it is now one of the most important laws for those of us who are actively combating anti-Semitism in higher education.
“The key to the effective use of Title VI is that compliance is a condition of federal funding. Virtually every American university is heavily dependent upon federal money. If universities violate Title VI, they risk losing that money. Title VI is enforced by an important federal agency called the U.S. Department of Education’s Office for Civil Rights (OCR). It handles approximately 7,000 civil rights cases per year involving a wide range of discrimination issues.”
Kenneth L. Marcus is President of the Louis D. Brandeis Center for Human Rights under Law in Washington. He is a former Staff Director of the U.S. Commission on Civil Rights and author of Jewish Identity and Civil Rights in America.
He explains: “Until 2004, OCR steered clear of anti-Semitism issues. It took the position that Title VI did not cover Jews, defining Judaism as a religion, rather than a race, color or national origin. Yet OCR properly defended the rights of many other groups including women, the disabled, Hispanics, Arabs and African Americans. When put in charge of OCR in 2004, I issued a series of policy statements announcing that OCR would henceforth protect Jews, Sikhs, and members of other groups that had both religious and ethnic or ancestral characteristics.
“My immediate successors did not enforce the law according to these directives. I then put together a campaign to convince the Obama administration to adhere to this policy guidance. In 2010, the administration finally announced that they would fully enforce it.
“The new legal approach requires federal officials and university leaders to understand two important points. The first is that anti-Semitism often comes under the guise of anti-Israel hostility. The second is that the First Amendment requires protection of students’ freedom of speech at public universities. At the Brandeis Center (www.brandeiscenter.com), we are working to educate officials on these principles. Anti-discrimination law and freedom of speech are not competing issues that must be balanced against each other. Both must be protected in full.
“The Department of Education has however, never provided a definition of anti-Semitism for the purposes of enforcing Title VI. The Louis D. Brandeis Center has urged OCR to use either the EUMC Working Definition, which the U.S. Commission on Civil Rights has endorsed, or else the very similar U.S. Department of State definition.
“Title VI reform is equally applicable to elementary and secondary schools, and public libraries. There is often harassment of Jewish school-age children, although it does not necessarily relate to Israel. School administrators need to understand that Jewish students enjoy the same federally-protected rights as members of any other groups.
“In order to achieve this enforcement, two things have to happen. First, formal complaints must be filed with OCR. It is often difficult for Jewish college students to stand up to anti-Semitism, as they are afraid of retaliation from the university or other students. Second, OCR must take action. So far, OCR has been slow to resolve its pending anti-Semitism complaints.
“Currently three Title VI cases are pending against three universities on California campuses – Berkeley, Irvine, and Santa Cruz – as well as against Rutgers University in New Jersey. Since these complaints were filed, administrators have been noticeably more sensitive to the issue of anti-Semitism and anti-Israelism. At the same time, students who are hostile to the Jewish community have been more reluctant to engage in harassment.
“While the 2004 and 2010 Title VI reforms were a critical step in the right direction, much work still needs to be done. Congress should prohibit harassment of religious minority students, just as it does with women, the disabled, and racial and ethnic minorities.
“Another problematic issue remains that for several years the federal government has been funding university-based centers for Middle Eastern studies to train students in skills such as the knowledge of Arabic, which is important for the war against terrorism. Much funding has been used to support biased, one-sided programs that instill negative attitudes toward Israel and the United States.
"At some universities, professors indoctrinate students about Israel’s supposed ‘atrocities.’ This can potentially spill over and impact upon how Jewish and Israeli students are perceived and treated by their peers. Congress and the Department of Education should take action to ensure that taxpayer funds are not used to support anti-American and anti-Israeli propaganda in or out of the classroom.”
 Cambridge University Press, 2010