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:
- The application of Title VI of the U.S. Civil Rights Act to claims of antisemitism on campus
- 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.
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.
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.
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.
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 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.
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)
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.
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)
Isaac Brooks Fishman is an attorney. He lives and works in Washington, D.C.