How the government can crack down on anti-Semitism on college campuses

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When the Senate begins to consider President-elect Donald Trump’s choice to run the Department of Education, Congress should focus on the surge of anti-Semitism that continues to plague our nation’s campuses. Over the past few years, anti-Semitism has reached a tipping point around the country. The FBI reported that there were more Jewish hate crime victims last year than victims of all other religious groups combined.

Nowhere is this problem worse than on college campuses where anti-Semitic incidents are escalating at an alarming rate. More than half of Jewish students reported experiencing or witnessing anti-Semitism in 2014 and 2015, according to two recent studies. Another study showed a 45 percent increase in campus anti-Semitism in the first half of 2016, compared with the first half of 2015. This year, the numbers are likely to be even worse: In the 10 days following November’s election, the Southern Poverty Law Center recorded no fewer than 100 incidents of anti-Semitic hate in the United States.

The job of combating hate crimes on campuses falls on an obscure yet important agency in the Department of Education, called the Office for Civil Rights. It has found countless civil rights violations against women and against African-Americans. But when it comes to anti-Semitism on campus, the agency has been paralyzed. OCR has not found a single civil rights violation on any campus anti-Semitism case. It’s an astonishing and troubling statistic and shows the vulnerability of Jewish students across the country.

The reason for OCR’s powerlessness is that it is ill-equipped to recognize anti-Semitism when it sees it. That is to say, OCR has no definition of anti-Semitism. Absent a definition, the office is stymied by anti-Semitism cases and is failing in its mission to protect Jewish students.

I have a unique understanding of OCR’s efforts to combat anti-Semitism as a former head of that agency. Until a dozen years ago, OCR declined jurisdiction in cases involving claims of anti-Semitism. Officials reasoned that anti-Semitism is merely a form of religious discrimination, while OCR’s statutes cover only such traits as race, color, national origin, sex, age and disability. In 2004, I drafted the policy under which OCR investigates anti-Semitism claims. It ensured that Jewish, Sikh and Muslim students were protected from ethnic and ancestral discrimination under Title VI of the Civil Rights Act of 1964. But unlike in policies under which OCR investigates civil rights claims such as sexual harassment, this policy did not include a definition of anti-Semitism.

OCR should not have trouble drafting a credible, accurate definition of anti-Semitism. In fact, the agency only has to travel to Foggy Bottom to find one. The State Department defines anti-Semitism as “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” Importantly, the definition addresses a core concern on campus, exactly when anti-Israel activities cross the line into anti-Semitism. The State Department uses that definition to combat anti-Semitic incidents in every country around the world, and it has had strong results.

The definition also has widespread international support. It is substantially the same as the International Holocaust Remembrance Alliance definition of anti-Semitism. The IHRA, an intergovernmental organization backed by 31 countries, adopted this widely supported definition in May. Just last month, the United Kingdom adopted it. And in December, at the most recent summit of the Organization for Security and Co-operation in Europe, 56 out of 57 countries supported the IHRA definition as the most accurate definition of anti-Semitism. Only Russia opposed.

But because domestic agencies will not use tools that were developed for foreign affairs, the State Department’s definition is not used in the United States. As a result, other countries can rightly question how an incident is anti-Semitic if it happens in Berlin or Paris but not if it occurs in San Francisco. We end up looking like hypocrites because we do not follow the same rules that we apply to others.

Fortunately, lawmakers have worked on a remedy for this problem. A bipartisan group, led by Sens. Tim Scott (R-S.C.) and Bob Casey (D-Pa.), have drafted the Anti-Semitism Awareness Act. It directs OCR to use the State Department’s definition to determine whether anti-Semitic conduct “was motivated by anti-Semitic intent.” For example, if an anti-Israel activist punches a Jewish student in the face — and we have seen cases like this — OCR would use the same tools that our foreign service officers employ to determine whether it should be treated as a bias incident. This is especially important when the perpetrator cannot be identified or when the assault may be symptomatic of broader problems with the campus environment. Officials need to understand whether the incidents are anti-Semitic in order to determine how they can best be addressed, to help the community heal and to prevent recurrences.

Unfortunately, the bill has been widely mischaracterized. Some have mistakenly claimed it would criminalize controversial speech. Others have deliberately charged that it will violate the First Amendment. Neither is true. In fact, the drafters carefully avoided limiting any speech at all. The proposed legislation simply directs OCR how to determine whether the “intent” of unprotected activities — including assault, battery and vandalism — should be addressed with the same anti-discrimination tools that are used to fight other forms of bigotry. That’s why the authors deliberately emphasized in the bill’s language, that “Nothing in this Act … shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States.” The fact is that much anti-Semitic hate speech is constitutionally protected, just as racist and sexist speech also generally enjoys First Amendment protection.

At a time when little is done on a bipartisan basis, it was encouraging that this sorely needed and thoughtfully crafted bill passed the Senate with unanimous support in the 114th Congress. Sadly, time ran out before the House could act on companion legislation. The 115th Congress should take action on this legislation immediately and give the new secretary of education the tools necessary to stamp out this ugly blight of campus anti-Semitism.

Kenneth Marcus serves as president of the Louis D. Brandeis Center for Human Rights Under Law and author of “The Definition of Anti-Semitism.” He is the former staff director at the U.S. Commission on Civil Rights and was delegated the authority of assistant secretary of education for civil rights.

How the government can crack down on anti-Semitism on college campuses

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AUTHOR

Kenneth L. Marcus

Kenneth L. Marcus is President and General Counsel of the Louis D. Brandeis Center for Human Rights Under Law and author of the award-winning Jewish Identity and Civil Rights in America (New York: Cambridge University Press: 2010). Marcus founded the Brandeis Center in 2011 to combat the resurgence of anti-Semitism in American higher education. In November 2012, Marcus was named to the Forward 50, the Jewish Daily Forward's listing of the "American Jews who made the most significant impact on the news in the past year." The Forward described its 50 honorees as "the new faces of Jewish power," predicting that "if Marcus has any say in it, we may witness a new era of Jewish advocacy." During his public service career, Marcus served as Staff Director at the United States Commission on Civil Rights and was delegated the authority of Assistant Secretary of Education for Civil Rights and Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity. Shortly before his departure from the Civil Rights Commission, the Wall Street Journal observed that "the Commission has rarely been better managed," and that it "deserves a medal for good governance." For his work in government, Marcus was named the first recipient of the Justice and Ethics Award for Outstanding Work in the Field of Civil Rights. Marcus also serves as Associate Editor of the Journal for the Study of Antisemitism and Vice President of the International Association for the Study of Antisemitism. Marcus previously held the Lillie and Nathan Ackerman Chair in Equality and Justice in America at the City University of New York's Bernard M. Baruch College School of Public Affairs (2008-2011) and was Chair of the Scholars for Peace in the Middle East Legal Task Force. Before entering public service, Mr. Marcus was a litigation partner in two major law firms, where he conducted complex commercial and constitutional litigation. He publishes frequently in academic journals as well as in more popular venues such as Commentary, The Weekly Standard, and The Christian Science Monitor. Mr. Marcus is a graduate of Williams College, magna cum laude, and the University of California at Berkeley School of Law.


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