NEW YORK (JTA) — Buried in the recent policy statement on bullying in the public schools, the U.S. Department of Education’s Office for Civil Rights announced a major policy on anti-Semitism: For only the second time in its history, OCR pledged that it would use its civil rights enforcement powers to protect Jewish students from anti-Semitic harassment.
The landmark ruling bolsters the 2004 policy that I issued while heading OCR during the first George W. Bush administration but which had been abandoned or ignored in the intervening years. The new policy is a big deal for students on many college campuses, where anti-Semitism has made a startling return. However, it is hardly clear whether OCR will enforce it fully.
The new policy is certainly timely. Some say this is a “golden age” for American Jewish college students, pointing to the proliferation of Hillel houses, Jewish studies departments, Israel studies classes, and Jewish college presidents and faculty. There is some truth to this opinion.
But if it is the best of times, it is also the worst of times. The long steady progress against anti-Semitism since the end of the World War II halted nearly a decade ago at the start of the second intifada. Since then many campuses, especially on the West Coast, have seen a resurgence of anti-Jewish animosity. In many cases we see old school European-style stereotypes of greedy, conspiratorial Jews.
Quite frequently, though, this hate spills over from anti-Israeli protests into brazenly anti-Jewish harassment. In 2006, the U.S. Commission on Civil Rights said that anti-Semitism had become a “serious problem” on many campuses across the country.
OCR’s new policy means that Jewish students again will receive the same legal protections as black, Arab, Asian and female students. This has been a tough issue for the bureaucracy because Congress banned discrimination in federally funded education programs on the basis of race, color, national origin, sex, age or disability — but not religion.
Bureaucrats have been reluctant to protect Jewish students because Judaism is a religion, and Congress has not authorized probes of religious bias. Moreover, officials do not want to be seen as saying that American Jews are a separate “race” or “nation.” The new policy wisely steers clear of these problems, anchoring protections in ethnic bias.
Whether the policy succeeds will depend on three factors.
First, OCR must address anti-Semitic incidents that masquerade as anti-Israelism. On college campuses — and especially in protests brought by the anti-Israel boycotts, divestment and sanctions movement — it is now widely understood that attacking “Jews” by name is impolitic, but one can smear “Zionists” with impunity.
Natan Sharansky famously supplied a "3-D" test to address this ruse: If anti-Israel protesters Demonize Israel, use Double standards or try to Deligitimize the Jewish state, something other than mere political argumentation is generally involved.
The U.S. State Department and the European Union’s human rights agency have developed important definitions that distinguish between the permissible and the impermissible. OCR thus far has ignored the issue, and its past history provides little comfort that it will get it right.
Second, OCR needs to demonstrate that it can protect Jewish students from hate and bias while guarding the First Amendment and academic freedom. On many campuses, anti-Israel activists suppress pro-Israel advocacy by heckling Jewish-sponsored speakers, vandalizing Jewish posters and fliers, and intimidating students who wear clothing or jewelry that connects them with the Jewish state. University leaders must condemn these attacks on free speech and academic freedom.
At the same time, OCR must explain that nothing in its new policy requires any encroachment on constitutionally protected expression by either advocates or critics of Israel. Even where anti-Israel groups are engaged in deeply offensive protests, the best university response often is to condemn the hate or bigotry rather than censor or punish the speaker. Universities that fail to do so deserve to get a call from the federal agency that funds them.
Third, the current OCR policy is still informal policy guidance and it may not endure. Worse, since the policy does not cover religious discrimination, it contains a loophole wide enough that some perpetrators may evade enforcement.
Ultimately, Congress must act to protect all religious minorities — not just Jews but also Sikhs, Muslims and others — from discrimination at federally funded secular institutions of higher learning. U.S. Sen. Arlen Specter (D-Pa.) and Rep. Brad Sherman (D-Calif.) recently introduced legislation, advocated by the Institute for Jewish & Community Research and the Zionist Organization of America, to accomplish this result.
There is little chance that the legislation will pass during a lame-duck legislative session following November’s elections, and Specter will not return for the next Congress. The bill, however, deserves serious consideration by the new Congress, when Sherman hopefully will reintroduce it and identify a Senate co-sponsor.
Kenneth L. Marcus is the director of The Anti-Semitism Initiative at the Institute for Jewish & Community Research and author of "Jewish Identity and Civil Rights in America," Cambridge 2010. He also teaches at Baruch College of the City University of New York.)
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