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Using the Power of the Executive to Protect Jewish Students

As published in the American Spectator

President Trump takes on anti-Semitism on campus

With the signing of his Executive Order on Combating Anti-Semitism in December, President Trump declared that Title VI of the 1964 Civil Rights Act bars discrimination against Jewish students at federally funded educational institutions. Trump also adopted the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism, mandating its use in Title VI enforcement. Professor Alan Dershowitz, a civil libertarian, called Trump’s action “a game changer” in the effort to “turn universities away from being bastions of hatred and discrimination.”

Title VI prohibits discrimination against students based on race, color, or national origin, but not based on religion. President Trump recognizes that being Jewish is more than a religion — Jewish students are entitled to civil rights protection because of their Jewish ancestry or ethnicity.

Trump’s action strengthens the hand of Assistant Secretary, Office of Civil Rights (OCR), Kenneth Marcus, who oversees Title VI complaint investigations. Marcus has been promoting the IHRA definition for years: Anti-Semitism includes the “targeting of the state of Israel” and the denial to the Jewish people of “their right to self-determination.” According to presidential adviser Jared Kushner, the administration has clearly stated that anti-Zionism is a contemporary manifestation of classical anti-Semitism.

IHRA recognizes legitimate criticism of Israel while defining anti-Israel or anti-Zionist expression as anti-Semitic when Israel is delegitimized, demonized, or held to a double standard. The Executive Order specifically disallows infringement of any right protected under Federal law or under the First Amendment. It does not ban hate speech or promote speech codes. The offensiveness of a particular expression or act, standing alone, is not a legally sufficient basis for OCR to determine discriminatory intent creating a hostile campus environment in violation of Title VI. Harassment must be severe, persistent, or pervasive, beyond the mere expression of views, words, symbols, or thoughts, sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program. Using the IHRA definition as a tool to help evaluate charges of anti-Jewish bigotry, according to Attorney Benjamin Ryberg, Chief Operating Officer, The Lawfare Project, “makes clear to college officials that they must address anti-Semitism masked as anti-Zionism in the same manner that they confront race-based and other types of discrimination.”

If an educational institution receiving federal funds knows or has reason to know that a hostile environment against Jewish students exists, Title VI requires that the school take immediate and effective action to eliminate the problem. Failure to do so can lead to loss of federal funding.

Either a victim of the alleged discrimination or another person or group on behalf of the victim or victims may file a complaint with OCR. Organizations such as Lawfare Project are ready to assist students.

Since President Trump’s EO, new complaints have been filed with OCR by The Lawfare Project and an alumna against Columbia University and by the American Center for Law and Justice(ACLJ) against Georgia Tech. OCR has opened investigations of UCLA in response to prior complaints from StandWithUs and Zachor Legal Institute.

These complaints involve exclusion of Jewish students from public events, harassment by professors and guest speakers, disruptions of pro-Israel events, verbal attacks, and the promotion of hate-filled, anti-Zionist rhetoric by anti-Israel student groups like Students for Justice in Palestine — all alleging discriminatory harassment creating a hostile environment for Jewish students.

The complaint filed by Zachor Legal Institute on behalf of UCLA students had been held by OCR for over a year without any response. Zahor President Marc Greendorfer told me it appears that the Executive Order has removed bureaucratic resistance to investigating complaints. “It may have been easy for DoE staff to ignore internal guidance from Assistant Secretary Marcus” to use the IHRA definition of anti-Semitism. “The Executive Order had the effect of removing any doubt” about the definition.

I spoke with StandWithUS Director, Center for Combating Antisemitism, Carly Gammill, who remarked, “The IHRA definition is extremely important. Now that federal agencies are mandated to consider that definition when enforcing Title VI, this could be a tremendous help.”

During the last five years, nearly half of Jews between the ages of 18 and 29 have been victims of anti-Semitic acts. According to AMCHA Initiative, which monitors college campuses, Israel-related harassment increased by 70 percent in 2018 over 2017. Acts of personal vilification and calls for the exclusion of Zionist students from campus life nearly tripled. Their data highlights the growing role of faculty advocacy for eliminating the Jewish State of Israel.

Redress for campus discrimination has been a legal right under Title VI since 1964. Now that President Trump has issued his Executive Order, Jewish students have the same protection long enjoyed by other minorities — the right to study, participate in school activities and live in an environment free of hostility. Demanding vigorous action against anti-Semitism, President Trump said, “This is our message to universities: If you want to accept … federal dollars … you must reject anti-Semitism, it’s very simple.” Kenneth Marcus states point blank, “Our doors are open…. Reach out to OCR.”

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