(January 30, 2012 / JNS)
Just over a year ago, the Jewish community won an important victory against campus anti-Semitism. The U.S. Department of Education’s Office for Civil Rights (OCR) agreed, for only the second time, to extend civil rights protection to Jewish college students.
This landmark ruling resulted from a unified stand by over a dozen Jewish organizations. A year later, after adverse decisions in three cases, some wonder whether this victory has lost its luster. It has not. In fact, civil rights advocates are making slow steady progress, and even the unsuccessful cases have yielded positive results.
The community achieved unity last year because the major players agree that there is a problem for students on many college campuses. Last month, the Institute for Jewish & Community Research announced that over 40 percent of Jewish college students have experienced or witnessed anti-Semitism on their campuses. Moreover, this figure may understate the problem, since more students respond affirmatively when questioned more specifically.
Admittedly, many incidents are minor. However, on some campuses serious anti-Jewish harassment has been reported. Frequently this harassment relates to animosity against Israel but impacts individual Jewish students. Advocates have filed complaints against the University of California at Berkeley, Irvine, and Santa Cruz, and Rutgers and Columbia universities. In general, the complainants ask the universities to take firm action in response to anti-Semitic harassment. They ask administrators not to censor anyone but rather to denounce anti-Semitism with firmness and specificity. Lawsuits arise when administrators refuse.
Advocates are making progress, but they also face setbacks. While all five cases remain pending, or subject to appeal, three have had unfavorable rulings. Last month, a San Francisco judge dismissed the Berkeley students’ complaint. The judge, however, granted the students leave to re-file their complaints, and they have already done so, adding additional claims. This month, OCR found insufficient evidence to proceed on this author’s complaint that Columbia offered a course that was so biased against Jewish students that a Barnard department chair had to steer Jewish students away from it. OCR pulled back, after having previously decided to commence a full investigation, because the department chair denied student allegations, and OCR was unable to verify student testimony. OCR had previously dismissed the Zionist Organization of America’s complaint alleging a hostile environment for Jewish students at UC Irvine.
The net effect of even these cases has been positive, although the initial legal decisions were negative. The litigation-related publicity at Irvine was undoubtedly a factor in last year’s successful prosecution of eleven Irvine students who infamously disrupted Ambassador Michael Oren’s speech. Most observers agree that Irvine’s administration has been more responsive since ZOA filed its case. Similarly, since the Berkeley case was filed, UC’s president, Mark Yudoff has issued stronger statements against anti-Semitism (needed for its defense in this litigation) than he had previously made. The Barnard case set a helpful precedent, by which Jewish students have protections against “racial steering,” i.e., being ghettoized into certain courses or majors because they are Jewish. Moreover, all three cases focus attention on campus problems, prompting students elsewhere to come forward and assert their rights.
There is no substitute for victory. Nevertheless, these cases have already yielded favorable results, regardless of their outcome on appeal. Now three things are needed. First, all parties must work harder to avert the need for litigation. This means working to articulate more clearly the university values of civil discourse and equal opportunity, while vigilantly protecting freedom of speech. Second, when litigation is unavoidable, the strongest cases must be identified and pursued. Since favorable precedents have been achieved, the priority now is to find cases that are factually strong. Too often students come forward too late, and the strongest cases are sometimes barred by the statute of limitations. Most importantly, the Jewish community must continue to stand together as it did a year ago. Only when the community is united can it provide students the support they need.
Kenneth L. Marcus is a former Staff Director of the U.S. Commission on Civil Rights. He is forming a new organization to combat campus anti-Semitism, the Louis D. Brandeis Center for Human Rights Under Law, and is a senior research associate at the Institute for Jewish & Community Research.