Thirteen national Jewish organizations yesterday wrote to U.S. Secretary of Education Arne Duncan urging the Department's Office of Civil Rights (OCR) to interpret Title VI of the 1964 Civil Rights Act to protect Jewish students from anti-Semitic harassment. (Full text of letter.) Title VI prohibits discrimination on the basis of race, color or national origin by educational institutions that receive federal funds. However, Title VI does not mention religious discrimination.
In 2004, OCR said Title VI covers discrimination against Jewish students even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law. Subsequently OCR backed away from that interpretation, contending that it could investigate harassment motivated by a student's perceived Jewish ethnic origin, but not harassment because of a student's Jewish religious beliefs or practices. (See prior posting.) By July 2009, OCR had gone even further and apparently now takes the position that Title VI does not cover any kind of anti-Semitic harassment. In yesterday's letter, the Jewish groups wrote:
The letter also focused on the issue of when anti-Semitic harassment disguised as anti-Israel expression loses First Amendment protection:
We urge you to review OCR's change in policy for enforcing Title VI. To Jewish students, the narrowed policy means that that they must endure a hostile educational environment because the law, while protecting other ethnic and racial groups, offers them no protection—even when intimidation or harassment is directed at them based on ethnic, as opposed to religious, identity. The government's message to campus perpetrators of anti-Semitic harassment, intimidation and discrimination is that they may continue to do what they are doing, because colleges and universities have no legal obligation to respond to their hateful conduct....
[C]onduct that threatens, harasses or intimidates particular Jewish students to the point that their ability to participate in and benefit from their college experience is impaired should not be deemed unactionable simply because that conduct is couched as "anti-Israel" or "anti-Zionist." ... [H]arassment or intimidation that holds Jewish students responsible for the acts of other Jews, or of Israel, is better understood as ethnic or "national origin" discrimination than as religious discrimination.An ADL press release announced the letter. [Thanks to Michael Lieberman for the lead.]