The U.S. Department of Education has taken an “all hands on deck” approach to combating Jew-hatred in the wake of Hamas’s Oct. 7 terrorist attacks in southern Israel, Miguel Cardona, the education secretary, said at a Tuesday press briefing.
“We updated our Title VI information out to folks. We made the investigations public. I was out within a week or two talking on a national level about how important it is for leaders to stand up,” Cardona told reporters. “I also fought to make sure that we have funding that we need to make sure that our Office for Civil Rights has the tools that they need.”
Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of “race, color or national origin.” The Education Department has announced 110 open Title VI investigations against schools and educational districts that receive federal funding, based on what it calls “discrimination involving shared ancestry.”
Such complaints have skyrocketed since Oct. 7, with the department opening 60 new shared ancestry complaints, compared to 27 total complaints during the entire four years of the Trump administration, per a departmental fact sheet.
Jews as an ethnicity
David Bernstein, a law professor at George Mason University’s Antonin Scalia Law School who has written extensively about race and U.S. law, told JNS about how Title VI became one the government’s primary tools against Jew-hatred on campuses.
“Title VI is a law that prohibits federally-funded universities or any educational institution really, from discriminating based on a variety of specified criteria,” Bernstein said. “Religion was not included, because they wanted to protect religious universities that want to have religious criteria for faculty, for students and so forth.”
Almost every U.S. university either accepts federal funding or admits students with federal student loans, so the Department’s Office for Civil Rights can enforce Title VI at almost every public and private university in the country.
For the first 40 years after the 1964 act passed, Jews were not regarded as being under its protection, until the George W. Bush administration issued guidance that Jews are protected as an ethnic group, Bernstein said.
The government has since extended that logic to include bigotry against Muslims, in part because Muslims are often discriminated against as though they were an ethnicity, he added.
The Department of Education claims that it is now devoting more resources than ever to address these “shared ancestry” discrimination cases against Jews, Muslims and Arabs in the wake of Oct. 7.
Some critics have questioned why the Biden administration deems it necessary to pair antisemitism with other forms of bigotry, particularly Islamophobia, when Jew-hatred stateside has seen such a singular and alarming spike in recent years, especially since Oct. 7.
Cardona, a former elementary-school teacher who served as Connecticut’s education commissioner, said he respected that criticism, but one of the reasons the department talks about multiple forms of discrimination is to simplify the submission of complaints.
“When we categorize and put things in a ‘one click’ [form], we want to make sure that the Title VI expectations exist for all students,” Cardona told reporters. “But I recognize and I acknowledge that some people have expressed that to me. To say, ‘This is what we’re dealing with, this is a unique thing.’”
None of the cases since Oct. 7 has been resolved. A senior department official, who spoke on background at Tuesday’s briefing, said that was partly a resource issue.
“Our staff are carrying on average 50 cases a person,” the senior official said. “That’s not a tenable caseload.”
‘We investigate each case’
There are also disagreements about what constitutes Jew-hatred.
Asked if he believes that anti-Zionism is antisemitic, Cardona said that “Antisemitism can include anti-Zionist statements.” He also declined to say outright whether “from the river to the sea” was a call for genocide against Jews.
“We investigate each case, and it’s difficult for me to make a statement here about that,” he said. “If students are feeling unsafe with that, it’s a responsibility of leadership to act.”
That equivocation prompted Rep. Virginia Foxx (R-N.C.), chair of the House Education and the Workforce Committee, to call for Cardona’s resignation on Wednesday.
“Three months after Oct. 7 and the disgusting antisemitic demonstrations that followed, there is no excusing Secretary Cardona’s cowardly evasion of the antisemitic character of the phrase ‘from the river to the sea,’” Foxx stated. “Unfortunately, this is just the latest example in a long record of abject failure.”
Bernstein told JNS that from a Title VI perspective, the chants by themselves are unlikely to violate the law.
“Just chanting anything is never evidence by itself of a hostile environment, because it’s First Amendment protected,” he said. “You have to have more than that.”
In practice, the question is whether statements like that can be cited as evidence of a university’s indifference or that it treats complaints from Jewish students, who feel uncomfortable or unsafe, differently from others, according to Bernstein.
“There’s never going to be any court rule where merely having a rally chanting genocidal slogans would by itself be held to create a hostile environment if it’s not university-sponsored and it’s just student groups doing it,” he said. “It’s different if the university itself is sponsoring it, because then they’re taking a hostile position to Jews, potentially.”
While the department has delayed issuing a rule that would apply the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism to civil-rights investigations, the senior official at Tuesday’s briefing insisted that the department already complies with the 2019 Trump administration executive order, which applies that definition in Title VI cases.
“It’s really important to be clear that nothing would be different today if we had issued a proposed regulation or not because there is an executive order that is legally binding,” the official said. “We are in complete compliance with it.”