Since Hamas’ October 7 attack on Israel, there have been record levels of anti-Semitism and Jewish hatred on college campuses across the nation. In a November 14 letter to the U.S. Department of Education’s Office of Civil Rights (OCR), U.S. Representatives Kevin Kiley and Burgess Owens urged the office to take a more proactive approach is combatting anti-Semitism. Owens’ involvement is significant, because he chairs the key House of Representatives subcommittee that oversees American higher education. During the House Judiciary Committee hearing “Free Speech on College Campuses” on November 8, Brandeis Center Chairman Kenneth L. Marcus was asked about OCR’s actions, or lack thereof, and offered the following recommendations: “There’s more that the Department can be doing, and it can do it tomorrow. The Department has sent out links for Jewish students to file complaints It has added language to its compliant forms. That’s fine. But there is no reason why the Department needs to wait for Jewish students to come to them. The Department has the authority to initiate self-directed investigations. Anytime it opens the newspaper and sees that there is a problem at an institution that received Federal funds, and that’s every single day if they are reading the papers… These are things that can be done quickly that don’t require significant infusions of funds. They can be done with the current resources and that can be done with the authority that the Secretary of Education already has.” Marcus first pioneered the use of Title VI of the Civil Rights Act of 1964 to combat anti-Semitism in 2004, when he served as the U.S. Dept. of Education OCR Assistant Secretary for Civil Rights. Since then, ten executive agencies, including the Department of Education, have adopted this framework – now known as the Marcus Doctrine. However, even with Title VI protections recently applied to Jewish students, college administrators lag behind in the promptness and enforcement of actions to keep Jewish students safe. Threats to Jewish students on college campuses are at an all-time high and need to be addressed with decisive action by OCR. The need for new regulations that explicitly enforce the combination of the Marcus Doctrine and IHRA Definition – as done in 2019’s Executive Order 13899 on Combating Antisemitism – and not weaker instruments, such as Dear Colleague letters or acknowledgement of lesser anti-Semitism definitions, could not be more urgent. Download
Published by Politico on 10/12/23. Story by Bianca Quilantan. A wave of student activism is putting pressure on the agency to release a proposal that could force university leaders to referee advocacy as well as discrimination. A Donald Trump-era push to squash antisemitism on college campuses is seeing new life as student protests erupt in the aftermath of the violence between Israel and Hamas. The latest wave of activism is putting pressure on the Education Department to release a proposal — one twice delayed by the Biden administration — that could force university leaders to referee pro-Palestinian advocacy and discrimination against Jewish people. It would potentially force college administrators to investigate claims of discrimination against ethnic groups or risk losing federal money, making it harder for them to stay out of debates about campus protests. The absence of the regulation will likely be felt as dozens of campuses expect to host pro-Palestinian rallies on Thursday with the backing of the National Students for Justice in Palestine. The group has been coordinating its 200 solidarity groups for a “day of resistance” since Monday — a wave of protests that has spurred nearly 150 Jewish student organizations to demand that campus administrators “condemn” the groups for their “campaign to glorify the Hamas attacks.” Harvard, Columbia and dozens of other universities have rushed to put out statements declaring who they support. But the resulting attempts to sympathize with civilians on both sides while fielding concerns about the potential for antisemitism and Islamophobia has rarely satisfied campus factions. “This highlights the need for the Biden administration to make good on its long delayed promised regulations,” said Kenneth Marcus, who led the Education Department’s Office for Civil Rights under the Trump administration and now leads the Brandeis Center, which advocates for the civil rights of Jewish people. “This has been promised over and over again and delayed throughout the administration.” The Education Department’s rule on antisemitism and ancestry-based discrimination, which hasn’t been proposed yet, might not make college administrators popular with their students or free-speech activists, but it would make it clear when they must intervene in tense demonstrations or discussions. Advocates for the rule say past agency fact sheets indicate that it could closely align with Trump’s executive order that threatened to pull federal funding from colleges that ignore antisemitism on campus. Without the Trump-era policy, its supporters see students, administrators and other education leaders struggling this week to balance free speech with potentially antisemitic or islamophobic rhetoric as tensions over the war in Israel and Gaza escalate on campuses and social media. Statements from college presidents such as Harvard University’s Claudine Gay have dominated headlines as being too lax, especially when student groups have touted the invasion as a victory for Palestinians. Gay is one of many college presidents who have fumbled over how to respond to students following the war, and policy experts argue that the Biden administration could help navigate this issue. (Gay quickly released a second statement after Sen. Ted Cruz (R-Texas) and other Harvard alum criticized her first.) “This unfortunately sends a signal that the massacre of Jews is less important in the minds of university leadership, or at any rate that they are, for whatever reason, less capable of a response than when other groups such as Ukrainians are attacked,” Marcus said of Gay’s initial response. Israeli-Palestinian protests on college campuses are not new. Palestinian student groups have long rallied in support of national liberation, while Jewish groups who support Israel have been worried about a rise in antisemitic incidents which have surged on college campuses in recent years. “When there’s an uptick in violence in Israel-Palestine, we see ramifications here in the United States and in Europe, and we see an uptick in antisemitism,” said Miriam Elman, executive director of the Academic Engagement Network, a nonprofit that organizes and trains about 1,000 faculty and administrators on 300 campuses to combat antisemitism. She added that Jewish student groups are largely concerned with National Students for Justice in Palestine, which “seems to have wrapped itself in a very pro-Hamas position and messaging.” National Students for Justice in Palestine has asked its student chapters to rally because “we have an unshakable responsibility to join the call for mass mobilization… National liberation is near.” Student organizers, however, say there has been increased police presence on campuses around their rallies and Jewish gathering places. Academic and mental health support has also been extended to Jewish students, “but that same support has not been extended to Palestinian, Arab or Muslim students at all,” said Craig Morton, a Yale University student organizer with Yalies4Palestine and a fellow at the U.S. Campaign for Palestinian Rights. “Whenever something comes up with Palestine, the narrative put out by police or elected officials is that they’re deeply concerned about Jewish Americans,” Morton said. “My community is made out to be a threat against the Jewish community here, which couldn’t be further from the truth.” The Yalies4Palestine protest held Monday was peaceful, according to reports, and students from other nearby colleges including the University of Connecticut and Wesleyan University joined the demonstration held in New Haven. But a Harvard University student-organized vigil for solidarity with Palestinians was abruptly postponed Tuesday due to threats and safety concerns. Police officers divided protesters Monday at Indiana University. And dozens of students were injured in a stampede during a candlelight vigil supporting Israel at the University of Florida after a woman fainted at the event. California State University at Long Beach disavowed rhetoric at a pro-Palestinian student rally as “deeply offensive.” And there has been pushback over the posters used widely to promote rallies held by student groups that depict a paraglider, which were used by Hamas in their attack on Israel. Gay, the Harvard president who came under criticism for not responding to student groups’ pro-Palestinian messaging, condemned the “terrorist atrocities perpetrated by Hamas” and said no student group speaks for Harvard. At Columbia University, President Minouche Shafik urged students to support each other, and encouraged her faculty to “find ways of bringing clarity and context to this painful moment.” New York University President Linda Mills also acknowledged that the violence in the Middle East will “likely intensify the feelings of those on our campus who hold strong views on the conflict,” and presidents of other institutions released similar statements disavowing the attacks. “Where leadership really has to intervene is to say, we do want robust conversations that can be quite critical of Israeli policy,” said Elman, of the Academic Engagement Network. “We do want conversations about how to advance Palestinian rights and justice and we want to create space for that, but not to the point where we are allowing — in an uninhibited way — speech and activism that is crossing a line into advocating for violence and terror.” Education Secretary Miguel Cardona has yet to publicly acknowledge the conflict and how it is roiling colleges. Lawmakers and advocates for Jewish students have been urging the Education Department to make combating antisemitism on college campuses a priority after the agency delayed its rulemaking on the issue, which was first expected in January 2022. A proposed rule is expected to be unveiled in December. An Education Department spokesperson said the administration “remains deeply concerned about antisemitism and related forms of discrimination and hate at schools and on college campuses,” and pointed to its national strategy and awareness campaign on antisemitism. “Title VI of the Civil Rights Act of 1964 prohibits discrimination against students based on shared ancestry and national origin, including Jewish students and those from other religious groups, as well as students from Israel and Palestine,” the Office for Civil Rights wrote on X. Advocates for Jewish students said they want to see Cardona issue a strong statement. But the delay in response at Harvard has been top of mind for advocates who say Gay’s tepid statement from campus leadership and her delay to address her student groups’ statement was a failure. Marcus said his group has already seen significant increases in antisemitic remarks on social media since the weekend, and they expect more calls this week regarding Jewish students facing harassment. He urged university leaders to get ahead of potential harassment. But groups that support Palestinians see a clear imbalance and fear an erosion of free speech. A pro-Israel narrative has dominated the airwaves from the U.S. government and the media, making it difficult to voice differing opinions, U.S. Campaign for Palestinian Rights Executive Director Ahmad Abuznaid said. The group is afraid their activists are being labeled as antisemitic while protesting the conflict. “The administration should refrain from allowing for certain adjectives like that to be levied at Palestinian students,” he said, “and they should make sure it’s a safe environment for Palestinians to organize and speak up.”
Contact: Nicole Rosen 202-309-5724 Washington, D.C. (September 28, 2023): Kenneth L. Marcus, founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, issued the following statement today in response to the Biden Administration’s declaration that eight federal agencies will utilize Title VI of the Civil Rights Act of 1964 to combat anti-Semitism, as Marcus first recommended in 2004 as head of President Bush’s U.S. Department of Education Office for Civil Rights: “We are elated by this morning’s Biden White House announcement that eight federal agencies would acknowledge that Title VI of the Civil Rights Act of 1964 protects Jewish Americans, as well as other ethno-religious groups, from certain ethnic or ancestral discrimination. Coupled with Ambassador Lipstadt’s new State Department report, issued in the same week, which recognizes the central role of the IHRA Working Definition in efforts to combat anti-Semitism, this is a major victory well worth celebrating. Nevertheless, it is only a partial victory, even if it is deeply satisfying. “With today’s announcement, virtually the entire federal government is now on board with the policy the Office for Civil Rights announced in 2004, but there’s a problem. The fact is that it’s one thing for the government to commit to addressing anti-Semitism and another for it to identify anti-Semitism properly. That is why it has always been critical that this policy be coupled with a proper, uniform definition of anti-Semitism. In our times, that definition is the IHRA Working Definition. “The Executive Order on Combating Anti-Semitism wisely provided explicitly for IHRA’s use, subsequent Education Department guidance has also done so, and the Biden State Department has just reiterated its commitment to IHRA in Ambassador Lipstadt’s new report. It is crucial that the domestic agencies do so as well.” Nearly twenty years ago, as U.S. Assistant Secretary of Education under the Bush Administration, Marcus first established as Education Department policy that Title VI protects Jews and other groups from ethnic and ancestral discrimination. This policy is sometimes described as the Marcus Doctrine or Marcus Policy. It is important because Title VI, which applies to federally funded programs, does not prohibit religious discrimination. That is why it was critical to establish that anti-Semitism is not merely religious but also related to the peoplehood or shared ancestry of the Jewish people. This was initially a controversial approach and faced significant pushback over the years, as detailed in Marcus’ first book, Jewish Identity and Civil Rights in America – a book written solely to protect this doctrine in the face of opposition. The bi-partisan U.S. Commission on Civil Rights affirmed the correctness of the doctrine in 2006 and in 2010, the Obama Justice and Education Departments also affirmed the policy, but it remained a matter of informal guidance. In 2019, President Donald Trump incorporated this approach into the Executive Order on Combating Anti-Semitism, however, the policy was widely misunderstood by some who thought, incorrectly, that it implied Jews are a race. The Biden Administration today affirmed that Jews share a peoplehood, as well as a common religion, are often targeted based on spurious racial prejudices, and therefore deserve protection under Title VI of the Civil Rights Act of 1964. Marcus served as U.S. Assistant Secretary of Education for both the Bush and Trump Administrations. To read this press release as a PDF, click here.
Last month, Arkansas became the 27th U.S. state to adopt the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism. The IHRA definition is often referred to as the “gold standard” for defining anti-Semitism, because it contains examples of contemporary anti-Semitism involving, including some that involve demonizing, delegitimizing or double standards against Israel. . Virginia’s legislature also voted to adopt the IHRA definition month, including its contemporary examples. VA Governor Youngkin, who signed an executive order adopting the IHRA definition last year, praised the move and announced his intention to sign the bill into law: “Hate has no place in the Commonwealth and I’m proud to take continued steps to fight anti-Semitism. I am truly inspired by the devotion shown to transform what started as an idea into a law that will change how we combat anti-Semitism in the Commonwealth. I want to thank everyone who poured their heart and soul into seeing this bill pass.” . At the moment, there are efforts to have the IHRA definition adopted by state legislatures in New Jersey, Georgia and Indiana. According to the Combat Antisemitism Movement’s (CAM) 2022 IHRA working definition of antisemitism Adoptions and Endorsements Report, 18 U.S. states adopted IHRA via legislation or executive actions in 2022. . Earlier this year, two counties on opposite ends of the U.S. – Westchester, NY, and Snohomish, WA – adopted IHRA. And Costa Rican Foreign Minister Arnoldo Andre Tinoco expressed his government’s intention to “soon adopt the definition of international anti-Semitism.” The IHRA adoption movement passed a major milestone earlier this year when the 1,100th institution adopted the definition. These developments are indicative of the international momentum to define anti-Semitism – a precursor to combating it – as it increases worldwide. . “Successive United States administrations of both political stripes have embraced the International Holocaust Remembrance Alliance’s legally nonbinding working definition of antisemitism, including its examples,” declared Deputy Special Envoy to Combat and Monitor Antisemitism, Aaron Keyak at a recent international event. “We encourage all participating States that have not yet embraced the working definition to do so and to put it into practice.” . The IHRA definition has been adopted or endorsed by more than 1,100 governments, institutions, and organizations – including the U.S. Departments of State, Education, and Justice – as well as the governments of more than 40 countries, the European Union, and the United Nations. The IHRA Definition has been supported by both Republican and Democrat presidential administrations. . “Defining anti-Semitism…is an important [task], not only because definitional clarity is required for the term to be understood, but also because conceptional sophistication is needed for the…problem to be resolved,” writes Brandeis Center Founder and Chairman Kenneth L. Marcus in his book, ‘The Definition of Anti-Semitism.’” . “The Louis D. Brandeis Center FAQs About Defining Anti-Semitism” fact sheet offers insight on the importance of defining anti-Semitism, discusses the IHRA Definition, and provides guidance on what further steps are needed to utilize this definition. For example, while the IHRA Definition is not legally binding in and of itself, in the U.S., Executive Order 13899, “makes the IHRA Definition a legally binding part of federal anti-discrimination law, in that federal agencies are required to consider the IHRA Definition in determining whether recipients of federal funds (such as institutions of higher education) are in violation of federal law.” . The IHRA definition provides a clear and widely accepted definition of anti-Semitism, which can help institutions and organizations more effectively identify and combat anti-Semitic behavior. This is especially important for recognizing the many forms anti-Semitism can take. Adopting the IHRA definition sends a message that institutions and organizations take the issue of anti-Semitism seriously and stand in solidarity with the Jewish community. . This tidal wave of support serves as a landmark and reminder that support for the definition transcends the political and ideological spectrums. It is a unified stance against Jewish hate.