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(So, it turns out that this is not just about BDS, it is about blocking
admissions intended to create a diverse student body.)
NY Times, Dec. 12, 2019
Wider Definition of Judaism Is Likely to Aid Crackdown on Colleges
By Erica L. Green
WASHINGTON — An executive order signed Wednesday that extends civil
rights protection to Jews is likely to strengthen the hand of President
Trump’s Education Department, where the department’s civil rights chief
has been investigating some of the nation’s most elite universities for
anti-Jewish bias.
Mr. Trump, at a Hanukkah celebration at the White House, opened the door
on a case-by-case basis to essentially defining Judaism as a race or
national origin, not just a religion, under the Civil Rights Act. His
order also expanded the definition of anti-Semitism to include some
anti-Israel sentiments. Both moves had been pushed by Kenneth L. Marcus,
the head of the Education Department’s Office for Civil Rights, for years.
“This is our message to universities: if you want to accept the
tremendous amount of federal dollars that you get every year, you must
reject anti-Semitism, it’s very simple,” Mr. Trump said at the signing
ceremony.
Even before the order, Mr. Marcus was already deeming Judaism a
“national origin,” like Italian or Polish, to strengthen a campaign
against what he sees as rampant anti-Semitism in higher education. At
both the University of Pennsylvania and Stanford, Mr. Marcus has opened
“national origin” investigations to determine whether qualified
applicants were rejected because of their Judaism.
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.
In separate cases against New York University and the University of
North Carolina at Chapel Hill, Mr. Marcus has investigated whether
administrators have allowed their campuses to become hostile
environments for Jewish students by coddling anti-Israel sentiment. Last
year, he reopened a long-closed case brought by a Zionist group against
Rutgers University, saying the Obama administration had ignored evidence
that the school allowed a hostile environment for Jewish students.
The administration’s efforts come at a time of rising anti-Semitic
attacks. An assailant involved in a deadly shooting on Tuesday at a
Jersey City, N.J., kosher supermarket was found to have published
anti-Semitic posts online, a law enforcement official familiar with the
case said on Wednesday. But Mr. Marcus’s approach has prompted
criticisms that he is infringing on free speech and the rights of other
minority groups while extending civil rights law well beyond its intent.
Those charges will grow louder with Mr. Trump’s executive order and its
embrace of an expansive definition of anti-Semitism, one already used by
the State Department, that labels as anti-Semitic “denying the Jewish
people their right to self-determination,” by, for example, “claiming
that the existence of a State of Israel is a racist endeavor.”
“Anti-Zionism is anti-Semitism,” wrote Jared Kushner, a senior White
House adviser and the president’s son-in-law, in an Op-Ed article for
The New York Times. “The inclusion of this language with contemporary
examples gives critical guidance to agencies” enforcing civil rights law.
Jewish groups were largely supportive, with some liberal organizations
opposing it. Palestinian rights groups were incensed.
Last month, in a resolution agreement responding to an anti-Semitism
complaint, the Education Department required the University of North
Carolina at Chapel Hill to revise its anti-discrimination policy to
include “anti-Semitic harassment.” It was also required to describe in
its policy how such anti-Semitism could manifest itself on campus. The
changes have to be approved by Mr. Marcus’s office.
“The Department of Education is effectively strong-arming universities
into adopting policies that would chill criticism of the Israeli
government’s consistent and well-documented violations of Palestinian
rights by falsely conflating it with anti-Semitism,” said Yousef
Munayyer, the executive director of the U.S. Campaign for Palestinian
Rights.
Also last month, the Office for Civil Rights opened a national-origin
discrimination case against New York University that stemmed from an
episode last year when pro-Palestinian groups were accused of disrupting
a pro-Israel dance party.
“The department is deeply concerned about the rampant rise of
anti-Semitism on campuses across this country,” the agency said in a
statement on Tuesday.
Terry W. Hartle, a senior vice president at the American Council on
Education, said the dueling orders concurrently limited and protected
certain speech and would cause “enormous confusion” on college campuses.
“It’s hard to imagine how you can do both of these things successfully,”
Mr. Hartle said. “Most colleges will err on the side of free speech, and
the notion that the Department of Education could come after you for
that is sobering.”
The Foundation for Individual Rights in Education, which has been
generally supportive of Mr. Trump’s education policies, vowed to “defend
students and faculty subjected to censorship as a result of the
implementation of the executive order.” The group called on lawmakers to
come up with “constitutional alternatives to combat unlawful harassment.”
The issue arises as campuses have become hotbeds of racial and cultural
strife. In a 2018 report, the Anti-Defamation League found an 89 percent
increase in reported episodes of anti-Semitism on college campuses in
one year, as well as a steady rise in white-supremacist propaganda.
The North Carolina case stemmed from an event hosted by U.N.C. and Duke
University, titled, “Conflict Over Gaza: People, Politics, and
Possibilities,” this past spring that featured a Palestinian rapper,
Tamer Nafar, who was accused of spouting anti-Semitic lyrics.
A video of the performance prompted a Republican lawmaker to ask the
department to investigate.
“I knew it was going to be anti-Israel, I didn’t know it was going to
devolve into anti-Semitism,” said Ami Horowitz, a documentary filmmaker
who shot the video.
A report from the Middle East studies program that hosted the event
called comments the rapper made before his performance “inappropriate,”
but protected by free speech laws.
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.”
The Zionist Organization of America, a group that Mr. Marcus has worked
with for years, said the agreement sent “a powerful message to
universities and colleges throughout the country that the U.S.
government will hold them accountable for allowing campus anti-Semitism,
anti-Zionism, and/or the physical or emotional harassment of Jewish
students.”
For years, as the head of a Jewish civil rights organization, Mr. Marcus
lobbied the department to extend national-origin protections to Jewish
students because it does not have jurisdiction over religious
discrimination. He unsuccessfully filed several civil rights complaints
with the office, and in 2017, he complained that the department was ill
equipped to manage anti-Semitism cases. “It has found countless civil
rights violations against women and against African-Americans,” he
wrote. “But when it comes to anti-Semitism on campus, the agency has
been paralyzed.”
Now on the inside, Mr. Marcus has divided the Education Department. Last
fall, the department had to walk back Mr. Marcus’s assertion that it was
using the State Department’s definition of anti-Semitism to re-examine a
seven-year-old case against Rutgers University.
Betsy DeVos, the education secretary, has condemned “boycott Israel”
activists as “bullies.”Credit...Max Whittaker for The New York Times
The department said it would determine whether anti-Semitism cases fell
under its jurisdiction “on a case-by-case basis.”
Betsy DeVos, the education secretary, has condemned “boycott Israel”
activists as “bullies,” and this year, she called the Boycott,
Divestment and Sanctions — or B.D.S. — movement “one of the most
pernicious threats” on campuses. But she has also prided herself on
interpreting existing laws narrowly. The department has rescinded a
number of Obama-era guidance documents that relied on flexible
interpretations of federal laws, even as Mr. Marcus has asserted a
Jewish “national origin” by fiat.
But behind Mr. Marcus’s agenda is the weight of the White House. The
anti-Semitism executive order repeatedly refers to Title VI of the Civil
Rights Act, which extends protections on the basis of race, color or
national origin, then states, “Discrimination against Jews may give rise
to a Title VI violation when the discrimination is based on an
individual’s race, color, or national origin.”
Last weekend, Mr. Trump touted the N.Y.U. investigation as proof of his
administration’s pro-Israel bona fides. In remarks to the
Israeli-American Council National Summit that included a series of
anti-Semitic tropes, Mr. Trump invited Adela Cojab, who filed the
complaint against N.Y.U., to speak.
“My university failed to protect its Jewish community from ongoing
harassment, from attacks on social media, to resolutions on student
government, to boycotts, flag burnings, and physical assault,” Ms. Cojab
said.
The Office for Civil Rights is investigating an event from last year
when pro-Palestinian student groups at N.Y.U. were accused of disrupting
a pro-Israel event. The university, whose student population is 13
percent Jewish, condemned the actions and disciplined students responsible.
But the university drew the ire of pro-Israel groups when Students for
Justice in Palestine, a student group involved in the disruption
described by Ms. Cojab as “an anti-Israel hate group,” was recognized
with a President’s Service Award.
The university’s president said he would not have bestowed the honor,
which was awarded by a volunteer committee to 150 groups and
individuals. The university has publicly repudiated B.D.S. proposals,
condemned attacks on pro-Israel groups and rejected calls to close its
10-year-old Tel Aviv campus.
A spokesman for N.Y.U., John Beckman, said the university “disputes any
suggestion that it is or has been anything less than highly supportive
of or deeply concerned about its Jewish community.”
Aisha Jitan, a senior at U.N.C. at Chapel Hill, said her school’s
“spineless” agreement with the department was a “slap in the face” for
Palestinian students, like herself, and other minorities. Ms. Jitan
serves as a president of the university’s chapter of Students for
Justice in Palestine and has taken classes at the Duke-U.N.C. Consortium
for Middle East Studies — which the department also investigated this year.
“The exact things that I’m learning to resist — Orientalist and
Islamophobic narratives surrounding the Middle East — are the exact
narratives that the Department of Education is perpetuating,” Ms. Jitan
said.
Mr. Marcus’s “national origin” inquiries have also received sharp
pushbacks at Stanford and the University of Pennsylvania.
“We take allegations of discrimination extremely seriously. We have
closely reviewed the facts in this matter and found no evidence of
discrimination,” said Brad Hayward, a Stanford University spokesman.
Stephen MacCarthy, a spokesman for the University of Pennsylvania, said
he would not comment on a specific accusation but said, “We believe our
highly selective admissions policies are rigorous and nondiscriminatory.”
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