On May 1, 2024, the first day of Jewish American Heritage Month, Attorney General (AG) Merrick Garland spoke at an interagency meeting with Jewish community stakeholders, at the Department of Justice (DOJ).
He reportedly underscored DOJ’s commitment to addressing antisemitic hate crimes. Assistant AG Kristen Clarke, head of the Civil Rights Division at DOJ, reportedly outlined the DOJ’s enforcement efforts and highlighted actions to prevent and combat hate crimes.
The Readout of the meeting released by DOJ noted a precipitous increase in the volume and frequency of threats against Jewish communities across the country. It went on to declare that combating hate crimes and incidents is among DOJ’s top priorities.
Curiously, in the “Fact Sheet: Biden-Harris Administration Ramps Up Actions to Counter Antisemitism on College Campuses and Protect Jewish Communities”, dated May 7, 2024, although past involvement is referenced, DOJ is not explicitly given a prominent role in enforcement under the so-called ramp up of actions to counter antisemitism. This does not appear to be an oversight. Indeed, as subsequent events have unfolded, it appears DOJ has remained dormant.
It might have been expected that DOJ would have announced that it would investigate and take appropriate legal action against those who violently prevented access by Jews to the Adas Synagogue on Pico Boulevard in Los Angeles on June 23. After all, blocking access to a house of worship like a synagogue is a violation of Federal Law (18 USC 248).
President Biden specifically condemned the incident, expressing how appalled he was by the scenes outside the synagogue and noting, "Intimidating Jewish congregants is dangerous, unconscionable, antisemitic, and un-American," and "Americans have a right to peaceful protest. But blocking access to a house of worship - and engaging in violence - is never acceptable".
Yet, no announcement of DOJ taking any action has been forthcoming nor does it appear that DOJ is involved in the matter. This is in striking contrast to other cases brought by DOJ under provisions of the same law as applied to abortion clinics.
Moreover, why was DOJ not directly involved in the resolution of the Title VI matters against CUNY and the University of Michigan? The US Department of Education (DOE) announced it finally concluded two of its many pending investigations into Title VI violations including the plethora of antisemitic incidents on college campuses arising since October 7, 2024.
Despite determining that CUNY and The University of Michigan failed to protect Jewish students against prohibited antisemitic conduct in violation of Title VI of the 1964 Civil Rights Act, including what Education Secretary Cardona referred to as a “series of deeply concerning incidents in recent months”, there were no tangible consequences.
Where is DOJ and why didn’t they intervene to enforce Title VI effectively and to take action to prevent any further violations?
The claims investigated by the Office of Civil Rights (OCR) at DOE against CUNY included alleged discrimination and antisemitic harassment by employees and students at the colleges and schools, creating a hostile environment for students of Jewish ancestry since academic year 2019-2020 and OCR identified concerns regarding system-wide fulfillment of CUNY’s federal nondiscrimination obligations.
One of the earliest complaints identified by OCR was against Hunter College at CUNY. As OCR’s investigation confirmed, it involved students and faculty who disrupted two different sessions of a required college course in 2021. They commandeered the class and scheduled course discussion and used class time to call for the decolonization of Palestine. OCR noted, “Several students expressed that the disruption made them fearful and at least one student left class early. A Jewish student testified that when Jewish students spoke or tried to speak, others told them they should be listening, not speaking. “
OCR’s investigation also confirmed “Hunter concluded – without interviewing any students who were present during the Zoom sessions – that the class disruption did not deny access to education at Hunter” and “Hunter could not have adequately evaluated what occurred in the sessions and whether it created a hostile environment for Jewish students without interviewing affected students”. OCR’s investigation also yielded “no evidence that Hunter took any action to communicate to affected students the results of its investigation or that it took actions to redress any hostile environment students may have experienced.”
In addition, OCR’s investigation identified compliance concerns that “specific CUNY colleges and schools appear not to have conducted adequate investigations in response to reports of alleged harassment based on national origin/shared ancestry, may treat students differently based on their national origin/shared ancestry with respect to implementation of policies and procedures governing student conduct and events on campus, may not have taken steps reasonably designed to redress existing hostile environments, and in some circumstances may not have considered whether the alleged conduct subjected students to possible hostile environments at all”.
Under the DOE agreement, in essence, CUNY agreed to improve training about antisemitism and reevaluate past allegations of antisemitism on their campuses.
The public responses of the two universities were a study in avoidance of responsibility for antisemitism on campus.
The University of Michigan’s announcement pointed out that there was no admission of guilt and the agreed upon settlement would benefit all students. The CUNY statement similarly sought to universalize the issue, as opposed to specifically addressing the antisemitism that was at the heart of the problem. Indeed, the resolution was referred to by Chancellor Rodriguez as ‘…a holistic plan that builds on our ongoing efforts to combat hate and ensure that every member of the community is safe on our campuses”.
In striking contrast, Catherine Lhamon, the head of OCR at DOE, reportedly said she was “astounded” by the antisemitic incidents she had seen since Oct. 7. She noted,“ I’m a longtime, lifelong civil rights attorney, and I and my staff know hate intimately because of what we do, and I am astounded by the kinds of allegations that we are seeing now in this country”. She also mentioned how the volume of cases had increased and the staff was overburdened. She said, “Our staff are now carrying in excess of 50 cases a person, and that is an untenable caseload”.
Why is DOJ not helping? Isn’t that its job?
Under its Title VI Legal Manual, DOJ is expressly charged “to coordinate the implementation and enforcement by Executive agencies” of Title VI. This includes “consistent and effective implementation”. Since violations of Title VI implicate federal funding of the offender, DOJ is also responsible for oversight and coordination, including among the various agencies involved therewith. DOJ is also the legal arm that enforces Title VI in the courts. This is particularly relevant because it would appear that the Department of Education unceremoniously skirted any legal consequences or enforcement mechanism despite its finding of violations.
Many will remember the tough consent orders, penalty provisions and enforcement mechanisms, including federal monitors that were characteristic of DOJ settlements of claims under the 1964 Civil Rights Act against police departments.
Why is DOJ not involved and championing the fight against systemic discrimination against Jews in Universities and other violations of Title VI of the Act? Isn’t it time to invoke the right to terminate federal funding for violations of Title VI?
In the meantime there have been numerous private legal actions filed seeking genuine relief. The results orientated real world recognizes the absurdity of trying to substitute mere activity for accomplishment. It is poignant to note that not only are the pervasive issues of antisemitism, harassment, intimidation and hostile learning environments for Jews (whether by professors, fellow students, staff or others allowed on campus,) at many universities not cured, they are often not even explicitly acknowledged by the universities responsible for these profound violations under Title VI. The question is why not?
A number of members of Congress recognized there was an issue in a letter sent by Congresswoman Claudia Tenney, dated May 6, 2024 to Kristen Clarke that was also signed by Representatives Elise Stefanik, Mike Lawler, Keith Self, and Bill Posey. As they noted, in her capacity as head of DOJ’s Civil Rights Division, Clarke has the duty to investigate and enforce the law against the dangerous protestors at Columbia University after the DOE completes its investigation.
Yet given her extensive connections to well-known antisemites and strong ties to Columbia University that extend far beyond those of a traditional alumna, including being slated to be the graduation speaker for Columbia Law School, they were concerned about her impartiality.
The letter also noted, “In recent days, our country has watched in horror as hundreds of violent protestors have swarmed Columbia University calling for the death of Jewish students while voicing their support for Hamas,” and went on to question her ability to investigate these Title VI violations properly.
The lawmakers demanded answers to the following probing questions from Clarke:
- -Will the Department of Justice Civil Rights Division support an investigation by the Department of Education Office of Civil Rights into Title VI violations by Columbia University? If not, why?
- -Will the Department of Justice Civil Rights Division prosecute individuals threatening and attacking Jewish students, such as the attack against Sahar Tartak at Yale University? If not, why?
- -Will your office abide by Executive Order 13899, which requires the consideration of the IHRA definition of anti- Semitism when prosecuting Title VI cases pertaining to anti-Semitism? If not, why?
- -Do you disavow your affiliation with Ms. Sarsour and Ms. Mallory? If not, why do you continue to maintain relationships with these well-known anti-Semites?
- -Do you disavow your previous comments regarding Mr. Martin and his ideology? Do you still believe that he “bases his information on indisputable fact?”
- -Do you believe that your attendance at Columbia University, the relationships you formed with the professors and administrators, and the fact that you were employed by Columbia Law School pose a conflict of interest?
- -Do you still intend to speak at graduation given the horrifying campus environment that currently exists? Do you believe that speaking at Columbia University at this time aligns with your values?
It appears that DOJ’s response in practice was just to remain uninvolved. However, bringing no actions to enforce Title VI against campus antisemitism since October 7th is not a solution; DOJ must step up and perform its sacred duty. If Clarke has a problem, then AG Garland must step in and fill the gap. I remember when the issue of Clarke’s possible bias was raised in Garland’s confirmation hearing, he defended her. There’s also the most recent ethics complaint reportedly filed against her, which raises issues arising out of her own confirmation hearing. However, this cannot be allowed to frustrate DOJ playing its essential role under Title VI.
DOJ and its Civil Rights Division are charged with enforcing the federal laws noted above and may not shirk this responsibility.
Being missing in action when it comes to antisemitsm and Jewish rights is unacceptable.
If, the Biden administration, as it proclaims, is serious about combating antisemitism, then it must remedy this situation.
The fate of American Jewry hangs in the balance.
May G-d protect us all.