The organized Jewish community in the US has just cast a big vote of confidence for civil rights lawsuits to protect Jewish students. This is surprising because recent indications were that it would go the other way.
The Jewish Council for Public Affairs’ new resolution garnered considerable controversy for several months, but its unexpected outcome is cause for celebration.
Ironically, the JCPA’s major advance was not what anyone expected.
The JCPA, an umbrella group, represents many major Jewish organizations, including the Anti- Defamation League and the American Jewish Committee. At its May plenum, the JCPA issued a major statement endorsing the protection of Jewish students under Title VI of the Civil Rights Act of 1964. That statute prohibits racial and ethnic discrimination at federally funded educational institutions.
Until 2004, when I headed the US Education Department’s Office for Civil Rights, the government took the position that Jews were excluded. The reason was that the statute omits the word religion.
I issued guidance eight years ago clarifying that Jews would henceforth be included, because Jews sometimes face racial and ethnic harassment. Sadly, on many college campuses, anti-Israel attitudes can morph into more traditional forms of anti-Semitism. After I left the agency, my successors backslid, stripping Jewish students of civil rights protections. In 2010, after a long campaign by Jewish groups, the Obama administration announced that it would protect Jewish students.
Recently, the Jewish community has appeared to be the victim of its own success. Although the Jewish world had been united in seeking civil rights protections in 2010, it became divided afterwards over how to enforce those protections. The JCPA entered the fray with a draft resolution which appeared to criticize Jewish groups that use Title VI too aggressively.
Their argument was that excessive zeal could violate the freedom of speech.
The JCPA encountered a stiff backlash. The National Conference on Jewish Affairs, a competing umbrella group, countered that “there is no basis for assuming… that Jews are more likely than other groups to assert frivolous Title VI claims, and we note that this unfortunate insinuation is resonant of historical and hysterical stereotypes about Jewish greediness, dishonesty and power-hunger.”
The JCPA’s final resolution was the opposite of what critics expected. It is a balanced statement affirming two consensual principles.
First, “Title VI provides an important remedy” in serious anti-Semitism cases. Second, it should be used cautiously, with due consideration for freedom of speech. Wisely, the final resolution omits language critical of other groups. Thus, it became a useful intervention.
Ironically, the most significant part of the JCPA’s resolution escaped attention until now. In a surprise move, the organization urged Congress to pass legislation prohibiting religious harassment in federally funded institutions, just as it prohibits racial and ethnic bias.
This is not a new idea. I proposed a broad ban on religious discrimination in a 2006 law review essay. That proposal was incorporated in legislation introduced shortly afterwards by then-Senator Arlen Specter and Rep. Brad Sherman.
This is the first time that the Jewish world has gotten behind the measure, which has languished before Congress until now.
Some professionals were caught off guard. This can be seen in the response of staffers who questioned the wisdom of the measure even as their leadership approved it. The sticking point was whether a ban on religious discrimination could bar Jewish institutions from favoring their own.
In fact, this criticism does not apply to the JCPA language, although it may have applied to earlier proposals. Happily enough, the JCPA resolution adopts a more streamlined view, banning only religious harassment rather than other forms of religious bias. This careful language should resolve the staffers’ concerns.
The Jewish community now appears poised to push for legislative reform. This is a welcome development. There will be one more potential glitch. When Jewish groups push to ban religious harassment, they may splinter over what harassment means.
Liberals have taken a broad view of what counts as harassment, while conservatives tend toward a narrower view. Similarly, the Office for Civil Rights has embraced a broader view, while the Supreme Court has applied a narrow one. People will be tempted to craft partisan bills.
Some may back liberal versions, while others back conservative versions. This would lead to partisan gridlock. Reform will not succeed unless it is bipartisan and consensual.
The writer is President & General Counsel of The Louis D. Brandeis Center for Human Rights Under Law and former Staff Director of the US Commission on Civil Rights.