Published by Jewish Insider on 11/8/23; Story by Gabby Deutch The letter comes as Jewish advocates have sought additional action from federal officials in light of a dramatic rise in antisemitism on campuses The top civil rights official at the Education Department sent a letter to leaders of American colleges and universities on Tuesday to remind them of their obligations to provide a discrimination-free learning environment for all students. The letter, authored by Catherine Lhamon, the assistant secretary of education for civil rights, cited “a nationwide rise in reports of hate crimes and harassment, including an alarming rise in disturbing antisemitic incidents and threats to Jewish, Israeli, Muslim, Arab, and Palestinian students on college campuses and in P-12 schools.” The Dear Colleague letter comes as Jewish advocates have sought additional action from federal officials in light of a dramatic rise in antisemitism on campuses following Hamas’ Oct. 7 terrorist attacks in Israel. Last week, the Education Department released an updated version of the complaint form, making it easier to identify religious discrimination, for students alleging that their civil rights had been violated. Such discrimination falls under Title VI of the Civil Rights Act of 1964, which requires any programs receiving federal assistance “to provide all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics.” Between Oct. 7 and Nov. 7, the Education Department’s Office for Civil Rights received 12 complaints of discrimination on the basis of “shared ancestry,” a department spokesperson told Jewish Insider on Tuesday. Seven of the complaints involve antisemitism, two involve Islamophobia, two involve anti-Hindu discrimination and one is broad-based. (The spokesperson noted that some complaints may allege actions prior to Oct. 7, and that there may be additional complaints that haven’t yet been logged by regional staff.) The “key paragraph” in Tuesday’s Dear Colleague letter, according to Mark Rotenberg, vice president for university initiatives and general counsel at Hillel International, is one that describes what counts as “harassing conduct.” “Harassing conduct can be verbal or physical and need not be directed at a particular individual,” the letter said. “OCR interprets Title VI to mean that the following type of harassment creates a hostile environment: unwelcome conduct based on shared ancestry or ethnic characteristics that, based on the totality of circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity.” The letter said schools are obligated to “take immediate and effective action to respond to harassment that creates a hostile environment.” Ken Marcus, who served as assistant secretary for civil rights in the Trump administration, praised the Biden administration for sending the letter but called it “something of a missed opportunity” for its lack of specificity about recent antisemitic incidents at U.S. colleges. “They should get credit for sending a letter, but they could have sent something much stronger,” Marcus, the founder of the Louis D. Brandeis Center for Human Rights Under Law, told JI. “I was also hoping that the administration would communicate publicly more of the concern that they are sharing privately.” The letter earned praise from Sen. Jacky Rosen (D-NV), the co-chair of the Senate bipartisan task force for combating antisemitism. “I’m glad to see the U.S. Department of Education is taking action at my urging to remind school administrators of their legal responsibility to keep students safe from antisemitism and other forms of discrimination – or face consequences,” Rosen said in a statement. “I’m continuing to urge the Department to form a task force to counter campus antisemitism.” Last week, Education Secretary Miguel Cardona and White House domestic policy chief Neera Tanden visited the Baltimore Hebrew Institute at Towson University in Baltimore to talk with Jewish students about antisemitism on their campus.
Play videoTextBlockModalTitle × Your browser does not support the video tag. The AAJLJ Presents: TITLE VI: The Law Protecting American Jewish Students A Webinar with Denise Katz-Prober, Director of Legal Initiatives at The Brandeis Center Wednesday, November 8th (Noon EST, 11AM CST, 9AM PST) Brandeis Center Director of Legal Initiatives Denise Katz-Prober will discuss the escalation of existing campus antisemitism following the 10/7 Hamas massacre, the law available to protect students from a hostile environment, and the steps that can be taken to protect students’ rights. Title VI of the Civil Rights Act of 1964 bars discrimination by universities and grade schools that receive federal funds. Jewish students are protected under our civil rights laws from harassment and discrimination and cannot be denied access to educational opportunities on the basis of their shared Jewish ancestry and ethnicity. The Brandeis Center, a civil rights legal advocacy organization, supports students on campus by using legal tools to address anti-Semitic harassment and discrimination, including filing Title VI complaints with the Department of Education’s Office for Civil Rights (OCR). OCR can then investigate and impose corrective actions on schools that fail to address hostile environments and other forms of discrimination. CLICK HERE TO REGISTER About Denise Katz-Prober Denise Katz-Prober is the Director of Legal Initiatives at The Brandeis Center. Prior to joining the Brandeis Center, Ms. Katz-Prober was a trial attorney at the Office of the Attorney General for the District of Columbia, where she served as a criminal prosecutor and subsequently defended the District of Columbia government in civil lawsuits brought in D.C.’s local trial and federal district courts. Prior to working at the Office of the Attorney General, Ms. Katz-Prober completed a fellowship at the United States Attorney’s Office for the District of Columbia, where she prosecuted domestic violence offenses while serving as a Special Assistant United States Attorney. In 2011, Ms. Katz-Prober was recognized by the District of Columbia Courts Capitol Pro Bono High Honor Roll for her volunteer work litigating civil protection order cases and advocating for victims of domestic violence. Prior to law school, Ms. Katz-Prober worked for a research organization focused on counter-terrorism and extremist groups. Ms. Katz-Prober graduated from Brandeis University with a B.A. double major in Politics and Islamic and Middle Eastern Studies. She received her J.D., cum laude, from Suffolk University Law School in Boston, MA.
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.
OCR affirmed and expanded upon its 2004 guidance letter in this 2010 Obama Administration “bullying policy”, which is really less about bullying than about harassment, including harassment of Jewish Americans and certain other religious groups. Read More
The U.S. Department of Justice reviewed and affirmed the legality of OCR’s 2004 guidance letter in this 2010 Obama Administration legal opinion. perezletterDownload
The U.S. Commission on Civil Rights’ Findings and Recommendations on Campus Anti-Semitism, principally authored by LDB President Kenneth L. Marcus during his tenure as the Commission’s Staff Director, announced that campus anti-Semitism is a “serious problem” warranting closer attention and provided several recommendations that remain important today. findingsDownload
OCR elaborated upon its 2004 guidance letter in this official correspondence with the Institute for Jewish & Community Research, emphasizing its commitment not to turn its back on harassment of Jewish American students. letterforcampusDownload
The U.S. Department of Education’s Office for Civil Rights (OCR) announced for the first time in 2004 that it would investigate certain anti-Semitism claims in this landmark guidance letter authored by LDB President Kenneth L. Marcus during his tenure as acting head of OCR.