A Tale of Two Kenneths: A Brief History of Campus Antisemitism in U.S. Civil Rights Law, 2004–present

Or: Why the Executive Order on Antisemitism Does Matter

Written in collaboration with Isaac Brooks Fishman and cross-posted to Jewschool

Earlier this month, President Trump issued an executive order on antisemitism, which created more confusion than policy. It is not clear from the face of the order what it is doing, or why it was so controversial.  By looking at the history of the two men whose work led to the order—Kenneth L. Marcus, the current Assistant Education Secretary for Civil Rights, and Kenneth S. Stern, the lead author of the “working definition of antisemitism”—its design and intended effects become clear. Namely, the order is the result of a fifteen-year campaign to suppress pro-Palestinian college student activism.

In order to understand the chilling effect this  executive order will likely have on campus discourse, it is helpful to review the history of the application of U.S. Civil Rights law to antisemitism, with a focus on two things:

  1. The application of Title VI of the U.S. Civil Rights Act to claims of antisemitism on campus
  2. The definition of antisemitism used in these cases

Both of these points have undergone a substantial policy shift in the last fifteen years.

Obviously, there isn’t space here to give a full accounting of antisemitism as defined in American civil rights law, or how it has been enforced on campuses. But we hope to paint, at least in broad strokes, a picture of developments in the last decade and a half. Many of these developments can be described by examining the work of the two Kenneths.

Background

Before we dive into the history, we need to define some basic terminology. 

Title VI of the U.S. Civil Rights Act of 1964 prohibits discrimination “on the ground of race, color, or national origin” in “any program or activity receiving Federal financial assistance.”1 Note that religion is not a protected class under Title VI, though there are other federal laws that prohibit religious discrimination.2

Colleges and universities are strongly dependent on federal financial assistance as part of financial aid programs, and the Title VI protections are the strongest way for the federal government to regulate discrimination on college campuses. A college that does not adequately address discrimination could be stripped of federal funding. In accordance with Title VI, the Department of Education’s Office for Civil Rights (OCR) is involved in investigating discrimination on campuses.

The Office for Civil Rights (OCR) is part of the U.S. Department of Education.

Kenneth L. Marcus

From 2003 to 2004, Marcus headed the Department of Education’s Office for Civil Rights (OCR).3 It was there he began a project to change the way OCR addresses complaints of antisemitism on college campuses.

Kenneth L. Marcus

Marcus believed that Title VI should be used to combat antisemitism on campus. But in OCR, he found that complaints of antisemitism were frequently dismissed out of hand because Jews were seen as a religion, not a race or national origin.4 To strengthen OCR’s ability to combat antisemitism, Marcus developed a policy expressed in a Dear Colleague letter5 he wrote in September 2004:

“While OCR lacks jurisdiction to prohibit discrimination against students based on religion per se, OCR will aggressively prosecute harassment of religious students who are targeted on the basis of race or gender, as well as racial or gender harassment of students who are targeted on the basis of religion.”6

Note that this letter did not define antisemitism, but it did say that Title VI should be used to protect members of religious groups from discrimination due to actual or perceived national origin. Examples given include not only Jews but other religious groups that often share ethnic characteristics, such as Sikhs and Arab Muslims.

Marcus left his post sometime near the end of 2004. He claims that his successors at OCR did not enforce his more expansive interpretation of Title VI, a claim that they dispute (as we will cover later.) 7

Kenneth S. Stern 

Around the same time, the other Kenneth, Kenneth S. Stern, was a leading member of the committee that drafted the original version of the definition of antisemitism in Trump’s recent executive order. In Stern’s capacity as the American Jewish Committee’s resident expert on antisemitism, he helped write the definition as a project of the European Monitoring Center on Racism and Xenophobia.8 It was adopted as a “working definition” of antisemitism in 2005 and was originally meant to be used in Europe for purposes of data collection.

Kenneth S. Stern

Given the definition’s history,9 it is now variously referred to as the U.S. State Department definition, the International Holocaust Remembrance Association (IHRA) definition, the European Union Monitoring Center (EUMC) definition, and the European Monitoring Center on Racism and Xenophobia definition. Despite some differences,10 they are largely equivalent. (Given the confusion this can cause, in this article, we will refer to it as the “Working Definition” or simply “the definition.”)

Stern did not intend for the definition to be used on American college campuses, and certainly not on Title VI claims under the U.S. Civil Rights Act, but within a few years it was being used in this context. 

Marcus leads the U.S. Commission on Civil Rights (USCCR)

In late 2004, after leaving OCR, Marcus became Staff Director at the U.S. Commission on Civil Rights (USCCR),11 an independent, bipartisan federal civil rights commission.12 He began using his position to apply outside pressure on OCR to comply with his 2004 policy — or rather, his interpretation of it. (As described below, OCR claims that their policies had not changed and that Marcus’s 2004 policy was being enforced.)

To this end, USCCR held a briefing on campus antisemitism in November 2005, publishing a report based on said briefing in July 2006.13 

The report contained statements from a number of Jewish and pro-Israel organizations, including the American Jewish Committee, the Anti-Defamation League, the Israel on Campus Coalition, as well as leaders from the Zionist Organization of America (ZOA), the American Jewish Congress, and the Institute for Jewish and Community Research.14

Alongside accounts of clearly antisemitic activity, the report includes incidents that have a much more dubious claim to antisemitism, such as anti-Zionist sentiments or even criticism of Israel that the report claims “demonizes” the country or “holds it up to disproportionate scrutiny.”15 The report notably appears to have no responses from or accounts of the people whose activities are characterized as antisemitic.

The cover of the 2006 USCCR report on campus antisemitism.

The report contained a list of recommendations, including the following (Note: the USCCR has no enforcement power over OCR so these were non-binding):

  • OCR “should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI.” (This seems to imply that OCR was not currently doing this.)
  • Academic departments, and specifically Middle East studies departments, “respect intellectual diversity”
  • Federal grant-making institutions ensure that U.S. government funds are not used to “support discriminatory conduct.”16
  • “OCR should conduct a public education campaign to inform college students of the rights and protections afforded to them under federal civil rights laws, including the right of Jewish students to be free from anti-Semitic harassment”17 
  • The Office of Postsecondary Education (OPE) should collect and report data on “broader range of anti-Semitic and other hate crimes” on college campuses.
  • “Congress should amend Title VI to make clear that discrimination on the basis of Jewish heritage constitutes prohibited national origin discrimination.” (This would later be attempted in the form of the Anti-Semitism Awareness Act, see below.)

     

In later writings, Marcus and American Jewish leaders would use the USCCR report as evidence that the OCR was not fulfilling its obligations under Title VI. 

Additionally, while at the USCCR, Marcus put pressure on his successor at OCR, Stephanie Monroe, to follow his 2004 Dear Colleague letter on Title VI.  Monroe claimed that there had been no policy change, and that the OCR still had jurisdiction over antisemitism claims that were related to race, color, or national origin, and noted that an antisemitism investigation that had been opened at UC Irvine was still ongoing. 18Marcus maintained that the OCR policy should be to exercise Title VI jurisdiction on antisemitism cases except those based “very specifically on religious faith,” which he said he had not seen, implying that all or nearly all antisemitism cases had a race or national origin component.19 Marcus would later make this argument in detail in a journal article published the next year.

Obama-era clarification on Title VI

Marcus continued to advocate for his interpretation of Title VI to be implemented; namely, that Jewish students should be protected under U.S. Civil Rights Law on the basis of race or national origin. His advocacy efforts included writing articles in both scholarly20 and popular21 publications, as well as writing a book on the topic.22  

Notably, in a 2007 journal article,23 Marcus notes that his 2004 policy has been controversial.24 25 Marcus defends his policy by making a legal argument, one which he had not made in the 2004 Dear Colleague letter: that Jews should be categorized as a race on the basis of a 1987 Supreme Court case that recognized Jews as a race under Civil Rights Act of 1866.26 (Previously in the United States, the term “race” was used in a similar way as the term “ethnicity” is used today.) According to Marcus, because the intent of the Civil Rights Act of 1964 was to extend the Civil Rights Act of 1866, the Court ruled that Jews should be entitled to protection under racial discrimination laws. Thus, Marcus claims, Jews should also be protected from racial discrimination under Title VI.27

In March 2010, a group of American Jewish organizations28wrote to then-Secretary of Education Arne Duncan regarding OCR’s approach to antisemitism cases under Title VI. 29 The authors quote the 2006 USCCR report30 described above, as well as explain the logic behind the 2004 Marcus policy using the same Supreme Court case cited in Marcus’s journal article.  

In this letter, again, antisemitism is not explicitly defined, but here we see references to anti-Zionist or anti-Israel activity as being possible manifestations of antisemitism. 

Their advocacy worked.

In October 2010, about seven months later, the OCR issued a new Dear Colleague letter containing a clarification of their Title VI policy. 31 Written by Assistant Secretary Russlyn Ali, the policy restated the essence of Marcus’s 2004 Dear Colleague letter.

Russlyn Ali, Assistant Secretary for Civil Rights under President Obama

And according to Marcus, the new policy (the “Ali policy”) actually went even further. He gives four reasons for this:

  • The antisemitic activity “does not have to include intent to harm.”
  • It need not be “directed at a specific target.”
  • “[R]epeated incidents” are not needed to create a hostile environment. 
  • Individual punishment is not sufficient; the educational institution must “take prompt and effective steps reasonably calculated to end the harassment and prevent its recurrence.”32

Despite his praise, Marcus was concerned that without an established definition of antisemitism, enforcement would be ineffective. To that end, he advocated for using the Working Definition in Title VI cases as a next step for improvement.33 

This point should be underscored: this OCR policy did not mention the Working Definition of antisemitism (or any definition of antisemitism) at all.34 

Many people who supported the Title VI policy clarification did not necessarily support a proposed adoption of the Working Definition in combination with it. Stern himself notes that during his work at AJC, he was able to help a group of high school students claim Title VI protections under this new policy clarification, in a case that did not involve Israel.35 

Applying the definition in combination with Title VI

At this point, Stern claims that some pro-Israel groups began using this Title VI policy clarification in combination with the Working Definition of antisemitism. As Stern explained: 

 “[S]ome Jewish groups and individuals, especially after they were armed with this new Title VI clarification, began filing complaints based, in part, on assertions that a hostile environment was created on particular college campuses because of anti-Israel expressions they believed transgressed the Department of State Definition of Antisemitism.”36

In 2011, Marcus founded37 the Louis D. Brandeis Center for Human Rights Under Law (no affiliation with Brandeis University), primarily devoted to fighting campus antisemitism and advocating for Title VI application to antisemitism cases.38 The Brandeis Center soon became a leader in filing Title VI antisemitism complaints.39

Around the same time, as a new wave of Title VI complaints were filed in 2011, Stern co-wrote40 a letter, voicing concern in response to the definition’s use in Title VI cases, claiming that it was being used to suppress political speech. Stern and his co-author, Cary Nelson, note that the definition may be helpful for documenting antisemitic incidents on campus, but that it should not be used in Title VI complaints.41

Meanwhile, the Jewish press discussed the progress of these Title VI cases. A March 2012 Forward article noted that of the six cases related to anti-Israel activity, none had succeeded. And some mainstream Jewish and pro-Israel groups even came out publicly against using Title VI, at least to the extent advocated by Marcus.42 

In a 2013 op-ed, Marcus, while noting that the complaints were uniformly unsuccessful, promoted them as nonetheless effective because they led to bad publicity for the accused.43

These cases – even when rejected – expose administrators to bad publicity. Just last week, I heard from a university chancellor who is eager to work with the Schusterman Center for Israel studies at Brandeis University to avert the possibility of a civil rights complaint.

At many campuses, the prospect of litigation has made a difference.

If a university shows a failure to treat initial complaints seriously, it hurts them with donors, faculty, political leaders and prospective students. No university wants to be accused of creating an abusive environment.

…[W]e are creating a very strong disincentive for outrageous behavior by students in particular… Apparently students are being told not to get mixed up in Jewbaiting, rather to focus on their studies and get their degrees. Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.

As time went on without success, pro-Israel advocates continued to advocate for formalizing the Working Definition as the OCR’s official definition of antisemitism, as well as for its adoptions in other venues. In 2015, a proposal for the University of California system to adopt the definition was put forward by the Brandeis Center and others.44  The UC-system proposal to adopt the definition failed, although one eventually passed that condemned “anti-Semitism, anti-Semitic forms of anti-Zionism and other forms of discrimination.”45

In the years following the Obama-era OCR policy clarification, none of the Title VI cases involving Israel gained traction.46 Given the lack of success, the next step — as in any activist cause — was to escalate.

Taking the fight to Congress: the Anti-Semitism Awareness Act (2016-2019)

The debate about applying the Working Definition to Title VI cases eventually reached Congress in 2016 with the introduction of the Anti-Semitism Awareness Act,a bill which would require use of the definition for the purposes of Title VI47 It passed in the Senate on the same day it was introduced. However, after First Amendment concerns were raised, it failed to pass in the House. The bill was reintroduced in both 2018 and 2019, but it never again passed in either chamber.48 49  (The ACLU released statements opposing the measure in its different versions, as did other groups, including civil rights and Arab, Muslim, and/or pro-Palestinian organizations.50 51

Stern strongly opposed the Anti-Semitism Awareness Act, writing a 2016 op-ed in the New York Times decrying the use of the definition outside its original context, and describing the bill as a “speech code.”52 Later, in November 2017, Stern testified before the House Judiciary Committee describing the types of abuses of the definition that he had already seen in Title VI cases.53

By contrast, many mainstream American Jewish institutions supported the Anti-Semitism Awareness Act, including the Anti-Defamation League (ADL), American Israel Public Affairs Committee (AIPAC), the Jewish Federations of North America, the American Jewish Committee, Jewish Council for Public Affairs, and others.54

Kenneth Marcus is confirmed as head of OCR (2018)

Kenneth L. Marcus speaks at his Senate confirmation hearing, Dec. 5, 2017.

Meanwhile, after the first failure of the Anti-Semitism Awareness Act to pass in both chambers of Congress, the Trump administration nominated Kenneth Marcus to be the Assistant Education Secretary for Civil Rights (head of the OCR) in late 2017.55

Marcus’s nomination was opposed by civil rights groups for several reasons, Israel-Palestine among them.56(While a full examination of reasons unrelated to Israel-Palestine is beyond the scope of this piece, concerns raised include his approach toward disparate impact claims and protections for LGBTQ, immigrant, and disabled students,57 as well as his opposition to race-based affirmative action in college admissions,58 his support of the Trump Department of Education’s rescinding of Title IX guidelines on campus sexual assault,59 and his proposal during his previous tenure at OCR to change Title IX regulations to allow sex-segregated educational programs that the ACLU describes as “inconsistent with the anti-discrimination principles enshrined in Title IX and the Equal Protection Clause.”60

A number of Jewish groups supported Marcus’s nomination, most notably the campus Jewish organization Hillel International.61 Others included B’nai B’rith International, the American Jewish Committee, the National Council of Young Israel,62 (as well as more ideologically right-wing groups such as the Zionist Organization of America and CAMERA). Meanwhile, the National Council of Jewish Women opposed the nomination on the basis of Marcus’s positions on Title IX.63 

Marcus was ultimately confirmed about seven months later, in June 2018, in a vote of 50-48.64

Pro-Israel Groups Return to the OCR

After Kenneth L. Marcus was confirmed as the Assistant Education Secretary for Civil Rights, pro-Israel groups knew they had a solid bureaucratic ally.  Even though the Anti-Semitism Awareness Act had never managed to pass in Congress, there was now a real chance that the OCR would, at least in practice, begin using the Working Definition in Title VI antisemitism cases. In other words, although the Working Definition of Antisemitism had not yet gained formal legal recognition as the official definition of antisemitism vis-à-vis Title VI claims, there was hope that some de facto application of the definition to Title VI cases could occur through targeted filing of complaints — especially given that a leading advocate of this very policy was now the head of the OCR.

And they had success within just a couple of months. The first use of the Working Definition by the Office for Civil Rights seems to be in August 2018, when the OCR re-opened a Title VI investigation at Rutgers University that had been closed by the Obama administration in 2014 due to insufficient evidence. As was widely reported, the OCR re-opened the case in response to an appeal from the Zionist Organization of America (ZOA), and Kenneth Marcus informed ZOA that the OCR would use the Working Definition in the new investigation.65 66 

ZOA leaders subsequently claimed67 that the application of the definition in the Rutgers case would apply to other Title VI antisemitism cases, though this appears to contradict a Department of Education statement reported by the libertarian-aligned Foundation for Individual Rights in Education (FIRE), which asserted that the DoE had not adopted a formal definition of antisemitism and that judgments would be made on a case-by-case basis.68

While it is unclear whether the news of the OCR’s use of the Working Definition caused an increase in the number of Title VI complaints filed (since pro-Israel groups have been attempting to use the definition for years in their complaints),69 it is informative to look at the types of investigations that the OCR has opened. According to a New York Times report, “Marcus has opened ‘national origin’ investigations of both the University of Pennsylvania and Stanford to determine whether qualified applicants were rejected because of their Judaism.”70 OCR has also opened an investigation of the University of North Carolina at Chapel Hill and Duke University after an event co-sponsored by both universities included a Palestinian rapper allegedly using antisemitic lyrics.71 Additionally, Marcus’s OCR opened investigations against New York University and Williams College.72 73

Solidifying Gains for the Future: The Executive Order

But Marcus and others knew that any policy changes they had made needed to be safeguarded. Just as Marcus was disappointed by the way in which OCR implemented (or failed to implement) his 2004 Dear Colleague letter, a new administration’s appointees could reverse his changes. 

To clear up this ambiguity and shore up the Working Definition as the official definition of antisemitism for use in Title VI antisemitism cases on a standardized basis, the Trump administration authored this Executive Order.74Until recently, Title VI complainants have had to argue that the Working Definition should be relevant to their cases, and from the second half of 2018 until now, the OCR’s use of the Working Definition was a matter of informal policy (supposedly on a case-by-case basis) rather than an established rule. The Anti-Semitism Awareness Act would have changed this by making the Working Definition the official definition of antisemitism for Title VI complaints. Now the Executive Order will accomplish this goal since the Anti-Semitism Awareness Act has repeatedly failed to pass in Congress.

Some writers have expressed doubts that the executive order will change anything.75 But this view dissipates once one places the executive order in the context of Marcus’s fifteen-year project of developing Title VI as a tool against pro-Palestinian activism. The use of the working definition—which ropes pro-Palestine and anti-Occupation views into its umbrella—is designed to allow the delegitimization of these views as antisemitic. From the context of Marcus’s history in the federal government and the Brandeis Center, and based on his personal writings, this goal is clear. The abuses that will follow are equally obvious, because they are no more than what Marcus and his political allies have admitted to trying to do. But now, the main barrier to OCR enforcement — excepting a First Amendment challenge — has been removed.

Conclusion

A couple of weeks ago, Kenneth Stern wrote an article in The Guardian, reiterating many of his previous concerns.76 He notes that he is personally a Zionist but supports anti-Zionist students’ right to free expression. After summarizing the history of using the definition in Title VI cases, he writes that he is most concerned about the chilling effect that the Executive Order will have 77:

“The real purpose of the executive order isn’t to tip the scales in a few title VI cases, but rather the chilling effect. ZOA and other groups will hunt political speech with which they disagree, and threaten to bring legal cases. I’m worried administrators will now have a strong motivation to suppress, or at least condemn, political speech for fear of litigation. I’m worried that faculty, who can just as easily teach about Jewish life in 19th-century Poland or about modern Israel, will probably choose the former as safer. I’m worried that pro-Israel Jewish students and groups, who rightly complain when an occasional pro-Israel speaker is heckled, will get the reputation for using instruments of state to suppress their political opponents.

Should we listen to the journalists who claim that not much will change? Or should we trust the two Kenneths, who know the inner workings of the relevant federal bureaucracies from firsthand experience? Marcus, the main architect of this policy, openly admits that a chilling effect is the goal.78 And Stern’s opposition to the Executive Order should give us all pause: if even the designer of this definition of antisemitism disagrees with its use here, something has gone terribly wrong. 

(Note: since we began work on this piece, the right-wing pro-Israel Lawfare Project filed the first Title VI complaint after the Executive Order, against Columbia University.79)

Caroline Morganti lives and works in New York City. Follow her on Twitter (@ctmorganti) and read her (occasionally updated) blog (The Zooming Etrog).

Isaac Brooks Fishman is an attorney. He lives and works in Washington, D.C. 

Notes

  1. 42 U.S.C. sec. 2000d. Link at Cornell University’s Legal Information Institute
  2. “Other federal civil rights laws, however, which are enforced by other federal agencies, do prohibit religious discrimination in schools, colleges, and universities,” “Know Your Rights: Title VI and Religion,” U.S. Department of Education, Office for Civil Rights, retrieved December 18, 2019
  3.  Technically, Marcus was not the Assistant Secretary for Civil Rights, a position he holds today, but was rather “delegated authority” of this office.
  4. The New OCR Anti-Semitism Policy,” Kenneth L. Marcus, April 30, 2011, Scholars for Peace in the Middle East (SPME), retrieved Dec. 18, 2019
  5. Dear Colleague letters are ostensibly informative letters that let relevant bodies know about the applicable law. Executive agencies use them to announce policy positions to affected private parties, in this case colleges that were required to abide by Title VI.
  6. Title VI and Title IX Religious Discrimination in Schools and Colleges: Office of the Assistant Secretary,” Kenneth L. Marcus, September 13, 2004
  7.  “The New OCR Anti-Semitism Policy,” Marcus, cited above
  8. Will Campus Criticism of Israel Violate Federal Law?”, Kenneth S. Stern, New York Times, Dec. 12, 2016
  9. In Stern’s 2017 House testimony (p. 6), he notes that “While the ‘working definition’ is no longer on the website of the EUMC or that of its successor agency, it can be found here.” A version of the definition was subsequently adopted by the U.S. State Department in June 2010. (Stern notes that he “encouraged the State Department to use [the definition] when discussing anti-Semitism with other countries.”) It was later adopted, with a similar though not identical list of examples, by the International Holocaust Remembrance Association (IHRA) in May 2016. The current State Department website now lists the IHRA definition verbatim.
  10. Stern notes in his House testimony (cited above) that “The State Department’s version is a slightly shorter, slightly broader version of the EUMC working definition.” (p. 7, footnote 15)
  11. Issues for Trump’s OCR Nominee: Sexual Assault and… Israel,” Andrew Kreighbaum and Elizabeth Redden, Inside Higher Ed, Oct. 30, 2017
  12. From the USCCR website: “Established as an independent, bipartisan, fact-finding federal agency, our mission is to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.”
  13.  “Campus Anti-Semitism,” USCCR, published July 2006, “A Briefing Before The United States Commission on Civil Rights Held in Washington, D.C., November 18, 2005”; retrieved Dec. 18, 2019. 
  14. Ibid., p. iii and p. 1
  15. Ibid., Referencing comments of ZOA’s Susan Tuchman, p. 2
  16. Ibid., p. 3
  17. We were unable to find an OCR-led public campaign on antisemitism during this time. However, by April 2007, the Marcus-led USCCR had begun a public education campaign to end campus antisemitism, encouraging students to report antisemitic incidents to the USCCR through their Complaint Referral Service. From the campaign’s poster: “Ready to take action? We can help. To report an anti-Semitic incident on your campus, call the U.S. Commission on Civil Rights at 1-800-552-6843 or 1-800-877-8339 (TDD/TTY) or e-mail referrals@usccr.gov or visit our Web site at http://www.usccr.gov/campusanti-semitism.html”
  18. Much Ado About No Change,” David Epstein, Inside Higher Ed, April 4, 2006
  19. Ibid.
  20. Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964,” Kenneth L. Marcus, William & Mary Bill of Rights Journal, Vol. 15, Issue 3, 2007
  21. A Blind Eye to Campus Anti-Semitism?”, Kenneth Marcus, Commentary, September 2010
  22. Jewish Identity and Civil Rights in America, published in August 2010
  23. Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964,” Marcus, cited above
  24. “Nevertheless, questions still remained as to OCR’s commitment to using Title VI even in cases in which the Jewish student asserted no racial or ethnic discrimination other than discrimination on the basis of the student’s status as a Jew.” Ibid., p. 859
  25. Curiously, the fact that Marcus himself is the author of the 2004 policy is not explicitly stated in the main body of the article. At the end of the paragraph introducing the topic, he says that he “served as head of OCR at the time that it issued its 2004 policy and director of the Civil Rights Commission at the time that it issued both its findings and recommendations on campus anti-Semitism and its full report on that topic.”  The fact of his authorship is buried in a footnote (note 5). Other observers have noted Marcus’s tendency to be less than forthcoming about his own involvement in shaping policies. See “Speech Acts,” Nathan Glazer, The New Republic, Dec. 20, 2010
  26.  “In Shaare Tefila Congregation v. Cobb, the Supreme Court correctly established that Jews, like Arabs and other ethnic minority groups, are protected from ‘racial’ discrimination under the 1866 Act.” Ibid., p. 840
  27. Marcus claims that he in fact made this argument back in 2004, in a letter to Dr. Sidney Groeneman, a Senior Research Associate at the Institute for Jewish & Community. (see note 5) While Marcus claims that the letter was “publicly distributed” at the time of issue, he does not define what that means. According to note 5, this letter is “on file with the author.”
    This makes Marcus’s characterization “OCR issued a series of policy statements announcing that it would assert, for the first time, jurisdiction to pursue claims alleging harassment of Jewish students,” (p. 858, emphasis added) questionably accurate. 
    The OCR issued one statement announcing said policy, namely the 2004 Dear Colleague letter. Marcus’s letter to Groeneman can only be found online in one place, not on the OCR website, but on the former website of the USCCR, where Marcus served as the Staff Director after his initial tenure at OCR. (We found this link cited in The UnCivil University: Intolerance on College Campuses, Gary A. Tobin and Aryeh Kaufmann Weinberg, p. 252, note 10). 
    Marcus’s characterization of having a “series of policy statements” seems to be a way to argue (retroactively in 2007) that his 2004 OCR policy included this particular legal interpretation which would ostensibly include a broader range of antisemitism claims under Title VI. Thus, by Marcus’s logic, the present-day OCR should follow said interpretation because it was part of his original policy. However, there is no reason to think that Marcus’s letter responding to an individual constitutes an official OCR policy statement, especially given that it is not hosted on the OCR website.
  28. Signatories (listed alphabetically): American Association of Jewish Lawyers and Jurists, American Jewish Committee, American Jewish Congress, Anti-Defamation League, B’nai B’rith International, Hillel: The Foundation for Jewish Campus Life, Institute for Jewish and Community Research, Jewish Council for Public Affairs, Jewish War Veterans of the United States of America, Religious Action Center of Reform Judaism, Scholars for Peace in the Middle East, Union of Orthodox Jewish Congregations of America, Zionist Organization of America
  29. “Re: Protecting Jewish Students Under Title VI of the Civil Rights Act of 1964,” March 16, 2010, hosted on both Scribd and Scholars for Peace in the Middle East website 
  30. Marcus claims to have led the writing of the recommendations in the USCCR report. (“The author is the principal draftsman of the [USCCR report] Findings and Recommendations.”) “Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964,” Marcus, note 1, cited above
  31. The text of the October 2010 “Dear Colleague” letter can be read here [pdf] or here.
  32. The New OCR Anti-Semitism Policy,” Marcus, cited above
  33. “OCR should follow the U.S. State Department’s lead and incorporate the EUMC Working Definition into its policies…” Ibid.
  34. Ibid.
  35. See page 4 of Stern’s House testimony, cited above
  36. Ibid.
  37. It was difficult to find when exactly the Brandeis Center was founded (different sources say 2011 and 2012). But according to this page on the Brandeis Center website, they were founded in 2011.
  38. Their vision statement claims that “the leading civil and human rights challenge facing North American Jewry is the resurgent problem of anti-Semitism and anti-Israelism on university campuses.”
  39. In 2012, the Forward named Marcus one of their “Forward 50” for “using federal civil rights law to combat campus anti-Semitism in the context of the Israel debate.” “Ken Marcus,” 2012 Forward 50
  40. Stern wrote the letter with then-president of the American Association of University Presidents (AAUP), Cary Nelson. “Cary Nelson and Kenneth Stern Pen Open Letter on Campus Antisemitism,” American Association of University Presidents, April 20, 2011; retrieved Dec. 15, 2019. 
    Nelson himself opposes BDS, and he later edited a book The Case Against Academic Boycotts of Israel (2015) and wrote books such as Dreams Deferred: A Concise Guide to the Israeli-Palestinian Conflict and the Movement to Boycott Israel (2016) (which purports to show that “division and suspicion promoted by the Boycott, Sanctions, and Divestment (BDS) movement will only undermine the cause of peace”), as well as Israel Denial: Anti-Zionism, Anti-Semitism, & the Faculty Campaign Against the Jewish State (2019).
  41.  For example, UC Santa Cruz lecturer Tammi Rossman-Benjamin filed a Title VI complaint in June 2009, which was later re-opened as the claimant attempted to employ the Working Definition in combination with the new Department of Education policy. 
    Of note, Rossman-Benjamin later founded the Amcha Initiative, “a non-profit organization dedicated to investigating, documenting, educating about, and combating antisemitism at institutions of higher education in America,” widely seen as being on the right-wing of pro-Israel groups. The Amcha Initiative also led an effort to get the University of California System to adopt the Working Definition as its official definition of antisemitism, something that Stern also opposed, see “Should a major university system have a particular definition of anti-Semitism?”, Kenneth Stern, Jewish Journal, June 22, 2015.

  42. “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,” “Coming Up Empty on Title VI,” Naomi Zeveloff, The Forward, March 13, 2012
  43. Standing up for Jewish students,” Kenneth L. Marcus, The Jerusalem Post, Sept. 9, 2013; retrieved Dec. 19, 2019
  44. Why universities need a definition of anti-Semitism,” Kenneth L. Marcus, The Jerusalem Post, July 6, 2015
  45. University of California Adopts Statement Condemning Anti-Semitism,” Ian Lovett, The New York Times, March 26, 2016; “Editorial: UC’s intolerance policy goes dangerously astray on anti-Semitism,” Los Angeles Times, March 16, 2016
  46. Stern says this during a recent webcast with J Street, Dec. 18, 2019, about 10 minutes in
  47. This Senate version passed by unanimous consent on the same day it was introduced. The House version stalled in committee after the ACLU and other civil rights groups strongly opposed the bill.
  48. Links on U.S. Congress website: S.2940 — 115th Congress (2017-2018)H.R.5924 — 115th Congress (2017-2018)
  49. Links on U.S. Congress website: S.852 — 116th Congress (2019-2020)H.R.4009 — 116th Congress (2019-2020)
  50. Oppose H.R. 6421/S. 10, the Anti-Semitism Awareness Act of 2016,” ACLU letter, Dec. 5, 2016; “ACLU Statement on Senate Introduction of ‘Anti-Semitism Awareness Act’,” ACLU press release, May 23, 2018; “Re: Anti-Semitism Awareness Act, S. 2940, H.R. 5924,” ACLU letter, June 4, 2018
  51. CCR Joins Rights Organizations in Opposing Anti-Semitism Awareness Act,” Center for Constitutional Rights, September 19, 2017, retrieved Dec. 15, 2019. ; “Anti-Semitism Awareness Act continues to threaten free speech on campus,” Foundation for IndividualRights in Education (FIRE), April 12, 2019,  retrieved Dec. 15, 2019.
  52. Will Campus Criticism of Israel Violate Federal Law?”, Kenneth S. Stern, New York Times, Dec. 12, 2016
  53. A copy of Stern’s November 2017 testimony at the Hearing on Examining Anti-Semitism on College Campuses can be read on the U.S. House website.
  54. Letter to House Leaders Regarding Anti-Semitism Awareness Letter to House Leaders Regarding Anti-Semitism Awareness Act,” ADL website, December 4, 2018
  55. Trump taps Jewish community advocate as civil rights chief at Education Department,” Valerie Strauss, The Washington Post, Oct. 26, 2017
  56. Issues for Trump’s OCR Nominee: Sexual Assault and… Israel,” Andrew Kreighbaum and Elizabeth Redden, Inside Higher Ed, Oct. 30, 2017
  57. Oppose the Confirmation of Kenneth Marcus for Assistant Secretary for Civil Rights,” The Leadership Conference on Human and Civil Rights, Jan. 11, 2018; Signatories include American Federation of Teachers, Human Rights Campaign, Lambda Legal, NAACP, National Bar Association, National Council of Jewish Women, and many othersWhy Trump’s pick to head the Education Department’s civil rights office is so controversial,” Valerie Strauss, The Washington Post, Jan. 18, 2018
  58. Ibid.
  59. Trump’s Pick to Oversee Civil Rights in Schools Has a History of Attacking Civil Rights,” Brian Hauss, ACLU, Jan. 19, 2018
  60. Ibid.
  61. Hillel Stumbles Onto Campus Sex Controversy By Endorsing Trump Nominee,” Josh Nathan-Kazis, The Forward, Feb. 11, 2018
  62.  “BDS opponent receives Jewish support for top civil rights post, as pro-Palestinian groups protest,” Rafael Medoff, JNS, Nov. 30, 2017; You can also read the Louis D. Brandeis Center’s defense of Kenneth Marcus here.
  63. What happens when you agree with education nominee on Israel, but not sexual harassment reporting,” Ron Kampeas, JTA, Jan. 31, 2018
  64. Divided Senate confirms controversial figure to head Education Department’s Office for Civil Rights,” Valerie Strauss, The Washington Post, June 7, 2018
  65. Feds reopen probe of alleged anti-Semitic incident at Rutgers,” Nick Anderson, The Washington Post, Sept. 12, 2018; “Education Dept. Reopens Rutgers Case Charging Discrimination Against Jewish Students,” Erica L. Green, The New York Times, Sept. 11, 2018
  66. “In determining whether students face discrimination on the basis of actual or perceived Jewish ancestry, we rely where appropriate upon widely established definitions of anti-Semitism. The International Holocaust Remembrance Alliance (IHRA) working definition is widely used by governmental agencies, including the U.S. Department of State, and is used by OCR as well.” [emphasis added] From a letter hosted on Politico (found linked on this FIRE statement). An identical version is hosted on Inside Higher Ed.
  67.  “What ZOA’s legal victory at U of North Carolina means for Jewish students across the country,” Susan B. Tuchman and Morton A. Klein, JTA, November 26, 2019
  68. When asked for clarification on whether the use of this definition was now official policy, the Department of Education provided a statement to media that denied that it had adopted any formal definition of antisemitism, adding, “Discrimination motivated by anti-Semitism may be prohibited under Title VI. As stated in the letter, OCR, where appropriate, will make that determination on a case-by-case basis.” For the full quote, see “OCR’s use of overly broad anti-Semitism definition threatens student and faculty speech,” Zach Greenberg, FIRE, Sept. 14, 2018 (Though we could not find corroboration outside of FIRE for this Department of Education statement, it does agree with the language of Marcus’s letter that reads, “we rely where appropriate upon widely established definitions of anti-Semitism” [emphasis added].) 
  69. New Title VI complaints were filed against the National Students for Justice in Palestine conference as well a vigil at UC Berkeley mourning both Palestinian children in Gaza and Jewish victims of the Tree of Life synagogue shooting, see “Letter: Civil Rights Groups Demand DOE Assistant Secretary Marcus End Attacks on Free Speech,” Center for Constitutional Rights, Dec. 3, 2018. Both complaints were filed in November 2018. 
  70.  “Wider Definition of Judaism Is Likely to Aid Crackdown on Colleges,” Erica L. Green, The New York Times, Dec. 11, 2019; “In the University of Pennsylvania case, the rejected applicant claimed he had the ‘full support of the vice provost in addition to having multiple-generation legacy status,’ yet was passed over for a student of a different gender, race and religion.”
  71. Ibid. “Duke’s inquiry is still pending, but U.N.C. resolved its portion last month. In its agreement with the Office for Civil Rights, the university said it would hold a series of community meetings, conduct anti-Semitism training and make clear in its anti-discrimination policy that Jewish students shared a national origin “on the basis of their actual or perceived shared ancestry or ethnic characteristics.’”
  72. “The complaint centered around NYU’s Students for Justice in Palestine (SJP) chapter receiving the President’s Service Award from the university in April despite a member from the group being charged in April 2018 for assaulting a pro-Israel student during a Yom HaAtzmaut rave…[OCR responded to the complainant by saying that they ‘alleged that the university discriminated against students of Jewish descent on the basis of national origin by failing to respond appropriately to incidents that created a hostile environment for Jewish students at the university. OCR determined that the complaint is appropriate for investigation.'” “Education Department to Investigate NYU’s Handling of Campus Anti-Semitism,” Aaron Bandler, The Jewish Journal, Nov. 15, 2019
  73. “The Department of Education’s Office for Civil Rights (OCR) opened an investigation into Williams College after receiving a complaint alleging the student government discriminated against pro-Israel students….Williams College’s student government, the College Council, rejected a proposal to create the student group, Williams Initiative for Israel (WIFI). The administration criticized the decision on the basis it was possibly out of sync with the College Council’s bylaws and a college professor filed a complaint with OCR,” “Williams College Investigated For Alleged Civil Rights Violation After Students Vote Against Pro-Israel Group,” Jenni Fink, Newsweek, June 4, 2019
  74.  Text of executive order
  75. Tablet journalist Yair Rosenberg writes, for example, writes that it is “unlikely” that someone will “try to misuse the order to go after non-bigoted activists on campus,” “Trump’s Redefinition of Jewish Identity That Wasn’t,” Dec. 11, 2019; See also: “Editorial: To Fight Campus Anti-Semitism, More Tools Are Welcome,” Judi Rudoren, The Forward, Dec. 15, 2019; “No, the Trump Administration Is Not Redefining Judaism as a Nationality,” Mark Joseph Stern, Slate, Dec. 11, 2019, tagline: “Its executive order on anti-Semitism won’t change much at all.”
  76.  “I drafted the definition of antisemitism. Rightwing Jews are weaponizing it,” Kenneth Stern, The Guardian, December 13, 2019
  77. “[S]tarting in 2010, rightwing Jewish groups took the ‘working definition,’ which had some examples about Israel (such as holding Jews collectively responsible for the actions of Israel, and denying Jews the right to self-determination), and decided to weaponize it with title VI cases.” Ibid.
  78. “These cases – even when rejected – expose administrators to bad publicity…At many campuses, the prospect of litigation has made a difference.”… “If a university shows a failure to treat initial complaints seriously, it hurts them with donors, faculty, political leaders and prospective students. No university wants to be accused of creating an abusive environment.”…“[W]e are creating a very strong disincentive for outrageous behavior by students in particular…Apparently students are being told not to get mixed up in Jewbaiting, rather to focus on their studies and get their degrees. Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.” “Standing up for Jewish students,” Marcus, cited above
  79. Federal complaint alleges Columbia promotes ‘pervasive and hostile environment’ toward Jewish students,” Valeria Escobar and Griffin Jones, Columbia Spectator, Dec. 22, 2019; “Anti-Semitism complaint filed with US Education Department surrounding Columbia University,” Jackson Richman, JNS, Dec. 19. 2019; “Federal Complaint Filed Against Columbia, After Trump Gives Nod to Target Political Speech on Palestine,” Palestine Legal, Dec. 20, 2019; “BREAKING: Lawfare Project files OCR complaint against Columbia University on behalf of Jewish-Israeli student, first since issuance of President’s Executive Order on Combating Anti-Semitism,” The Lawfare Project, Dec. 19, 2019

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