A year and a half after the federal government extended a landmark civil rights law to cover Jewish students, Jewish groups have yet to succeed in using this law against what they see as anti-Semitic anti-Israel activity on campus.
A survey by the Forward has found that at least 10 anti-Semitism cases have been filed with either the Department of Education or in court under Title VI of the 1964 Civil Rights Act. In only one of these cases so far has the complainant been favored: a high school case in which Israel played no role.
Six of these cases involve anti-Israel activity. One has been closed after administrative review. Another case has been rejected by a federal court, but the complainant has been invited to amend the complaint.
For some, this track record raises questions about the utility of civil rights law to combat campus anti-Israel activity. But advocates for Jewish students say it's too soon to come to conclusions about what kinds of cases will work under the new law.
"We are still in the testing phase and seeing where these cases are going to come out," said Deborah Lauter, the Anti-Defamation League's director of civil rights. "We are pleased to see the Office for Civil Rights taking cases seriously as they are required to do, and I think it is really too early to tell."
Historically, Title VI of the 1964 Civil Rights Act was used during the 1960s to desegregate public schools in the South. It prohibits discrimination based on race, color or national origin, but does not include religion as a protected category. But in October 2010, Secretary of Education Arne Duncan issued a letter saying that Title VI would henceforth cover members of religious groups on the basis of shared ethnic characteristics, thus opening the door for Jews to file complaints. Several existing cases involving campus anti-Semitism were grandfathered-in then under the newly-redefined rules.
Title VI discrimination complaints can be filed in federal court as civil cases or, more commonly, with the DOE, where they are subjected to administrative review. But anti-Semitism cases put before a court may face a more uncertain review. Unlike the DOE, the U.S. Supreme Court has not, to date, ruled on whether members of religious groups fall under the law's purview if they have perceived ethnic characteristics.
Which ever route a complainant chooses, in order to succeed, she must show that the institution in question was remiss in protecting a student from harassment due to her race or ethnicity — not just that an act of harassment occurred. A school found in violation can face a range of measures, including loss of its federal funding.
Of the six anti-Semitism cases involving Israel, one, an administrative case against Barnard College, was thrown out earlier this year. A second case, at the University of California, Irvine, was tossed out in 2008 but is now being reconsidered in light of the DOE's new policy. A federal judge recently dismissed a third case, filed against the University of California, Berkley. But the judge allowed the plaintiffs — Berkeley alumnus Jessica Felber and current student Brian Maissy — to amend a portion of the complaint, which they have done. Three other cases, including another one at UC Irvine, are still under investigation.
The one clear-cut instance of anti-Semitism found so far occurred not at a university but at a Virginia public high school. In that case, the OCR found that a student at Deep Run High School, in Glen Allen, Va., faced harassment that was "sufficiently serious" to limit the student's ability to participate in school. That student, a Jewish sophomore, was bullied over the course of the 2009–2010 school year, as peers in his world history class drew Nazi swastikas and pictures of Adolf Hitler on the board and placed pictures of the student on chairs and on stairs so that people would walk and sit on them. The students also affixed a picture of him to a piñata with the words "Sponge Bob Jew Pants" and a sexual slur based on the sophomore's last name.
According to the complaint, the student's teacher was aware of the harassment but failed to report it to the school leadership. After the school district learned of the situation, the teacher was placed on administrative leave. In June 2010, that teacher resigned.
In the course of its investigation, the OCR found that the school had responded appropriately to the harassment, committing to reimburse the family for the cost of their son's psychological evaluation, changing the student's grade in the world history class and permitting him to try out for the golf team even though he had missed the deadline, among other remedies.
Reached by the Forward, the student's family declined to speak on the record for this article, saying that to do so would dredge up painful memories of the bullying.
The other cases identified by the Forward involved a junior at Whittier College, in California, whose parents alleged that she was ejected from the basketball team because she is Jewish; siblings at a high school and a middle school in Holliston, Mass., whose father said they were subjected to anti-Semitic remarks, and a Sephardic child at a San Diego elementary school who, according to his mother, was teased because he is Jewish. None of these cases yielded a Title VI violation. In the Whittier College case, however, the school committed to developing a nondiscrimination policy.
According to Theodore M. Shaw, a civil rights expert and former head of the NAACP Legal Defense and Education Fund Inc., harassment cases such as these are typical Title VI fare. But when it comes to investigating claims of anti-Semitism in the context of the Israeli-Palestinian conflict, the OCR appears to be treading new territory.
"I don't know if they have an analogue in the historical civil rights cases that were brought on the grounds of race," Shaw said.
Jewish leaders who advocate using Title VI for Israel-related cases say that their lack of success thus far simply reflects the newness of the law's application to anti-Semitism.
"It is not just that it is failing. It hasn't really been tried," said Ken Marcus, a former staff director at the U.S. Commission on Civil Rights. "I would say that the Title VI campaign is barely in its infancy." Marcus's new organization, the Louis D. Brandeis Center, focuses on civil rights and Jewish students. The OCR recently tossed Marcus's complaint at Barnard.
"While the [OCR] guidance does not use the word 'Israel' or 'Zionism,' they have given us very, very clear indications that a serious case of harassment or intimidation of pro-Israel students would be covered by their jurisdiction," added Michael Lieberman, the ADL's Washington counsel. "With the appropriate case, we expect they would take it and run with it."
The ADL was one of 13 organizations that banded together in 2010 to ask the OCR to expand its definition of Title VI of the 1964 Civil Rights Act to effectively include Jewish students. But since Duncan issued his letter fulfilling their wish, the organized Jewish community has been a picture of discord on the application of Title VI.
Some groups, like the Zionist Organization of America, have been vigorous in their approach to the law, saying it should be used to quell campus anti-Israel activity when it tips, as they see it, into anti-Semitism. Other groups, including the Jewish Council for Public Affairs — the community's umbrella group for domestic issues — have warned against utilizing Title VI to silence free speech on campus. The David Project, a campus pro-Israel group, came out recently against resorting to Title VI except for extreme cases, part of a refashioning of the group's previously aggressive approach.
Several more cases may soon emerge. Lauter related that the ADL considers two other universities ripe for complaints, though it has not signed onto a single Title VI case yet.
"We envisioned that this would be an important tool, but not one that was going to be used frequently," Lauter said. "So the fact that there has not been a 'successful' prosecution under Title VI is probably a good sign that things are overall pretty safe for Jewish students on campus today."