Education Dept. Reopens Rutgers Case Charging Discrimination Against Jewish Students By Erica L. Green
The new head of civil rights at the Education Department has reopened a seven-year-old case brought by a Zionist group against Rutgers University, saying the Obama administration, in closing the case, ignored evidence that suggested the school allowed a hostile environment for Jewish students. https://www.nytimes.com/2018/09/11/us/politics/rutgers-jewish-education-civil-rights.html
The move by Kenneth L. Marcus, the assistant secretary of education for civil rights and a longtime opponent of Palestinian rights causes, signaled a significant policy shift on civil rights enforcement — and injected federal authority in the contentious fights over Israel that have divided campuses across the country. It also put the weight of the federal government behind a definition of anti-Semitism that targets opponents of Zionism, and it explicitly defines Judaism as not only a religion but also an ethnic origin.
And it comes after the Trump administration moved the American Embassy in Israel from Tel Aviv to Jerusalem, moved to cut off aid to the Palestinian Authority and announced the closing of the Palestine Liberation Organization’s office in Washington.
In a letter to the Zionist Organization of America, obtained by The New York Times, Mr. Marcus said he would vacate a 2014 decision by the Obama administration and re-examine the conservative Jewish group’s cause not as a case of religious freedom but as possible discrimination against an ethnic group.
In so doing, the Education Department embraced Judaism as an ethnicity and adopted a hotly contested definition of anti-Semitism that included “denying the Jewish people the right to self-determination” by, for example, “claiming that the existence of a State of Israel is a racist endeavor” and “applying double standards by requiring of” Israel “a behavior not expected or demanded of any other democratic nation.”
In effect, Arab-American activists say, the government is declaring the Palestinian cause anti-Semitic.
When the initial complaint was filed in April 2011, the school had been trying to address brewing tensions over the B.D.S. movement — which advocates boycotting, divesting from and sanctioning Israel — that was roiling college campuses.
That month, the school hosted Omar Barghouti, a founding member of the Palestinian Campaign for the Academic and Cultural Boycott of Israel, and after his speech, in which he called for the university to distance itself from Israel, the school issued a statement assuring the college’s Hillel group that it would not, according to published reports.
And when the complaint was filed, a spokesman told the New Jersey Jewish News that the claims in the complaint by the Zionist Organization of America were “contrary to the true values of Rutgers University and are not supported by the facts.”
Mr. Marcus, who was confirmed in June, was tapped to lead the Office for Civil Rights from his job leading the Louis D. Brandeis Center for Human Rights Under Law, a nonprofit advocacy organization that Mr. Marcus used to pressure campuses to squelch anti-Israel speech and activities.
The organization advocated revocation of federal funding from Middle East studies programs that are said to have an anti-Israel slant, and it urged colleges and universities to discipline students who are part of the B.D.S. movement.
When Mr. Marcus was nominated, Palestinian and human rights organizations protested his confirmation on the grounds that he would use his position at the Education Department to further his pro-Israel cause, and that first on his list would be pushing to adopt a definition anti-Semitism to target schools for civil rights violations. Middle Eastern studies programs at universities around the country have braced for action from Washington against perceived bias.
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“This is exactly what we feared would happen — he has a long track record of pressuring universities and government bodies to trample on free speech,” said Rahul Saksena, senior staff attorney at Palestine Legal, a Palestinian rights group. “You would think that the O.C.R. would have their hands full these days, and instead they’re using their limited resources” to reopen a case “that the Education Department spent years investigating, and had been closed.”
Liz Hill, a spokeswoman for the Education Department, said that although the Office for Civil Rights does not have jurisdiction over religious discrimination, the office “aggressively enforces” civil rights law, “which prohibits discrimination on the basis of race, ethnicity or national origin.”
Education Secretary Betsy DeVos “has made clear that O.C.R. will look at the specific facts of each case and make determinations accordingly,” Ms. Hill said. “The facts in this case, many of which were disregarded by the previous administration, are troubling.”
A spokeswoman for Rutgers said the university had not received official notification from the Education Department yet, but “as always, we would certainly cooperate with the Department of Education should they decide to review the decision.” The letter is dated Aug. 27 but received no public notice.
Mr. Marcus conceded that his department did not have the authority to weigh in on religious or political disputes. But he made the case that the Rutgers case is neither.
“An individual’s pro-Israel viewpoint itself — or, for that matter, any viewpoint on the policies of the State of Israel, the Israeli-Palestinian conflict or related issues — is not protected by” federal civil rights law, he wrote. However, he added, “discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics — which may include discrimination against Jewish or Muslim students — is.”
Mr. Marcus’s decision took current and former investigators at the Education Department by surprise, as Ms. DeVos has gone to great lengths to limit civil rights enforcement to stringent interpretations of federal law.
But in a previous stint leading the Office for Civil Rights, Mr. Marcus indicated that he was willing to interpret the law more broadly. In 2004, he issued a guidance letter telling schools that the department would include in its enforcement “national origin discrimination, regardless of whether the groups targeted for discrimination also exhibit religious characteristics.”
“Thus, for example, O.C.R. aggressively investigates alleged race or ethnic harassment against Arab Muslim, Sikh and Jewish students,” the letter continued.
The Zionist Organization of America called the reopening of the case a “groundbreaking decision.”
In a statement, the organization’s national president, Morton A. Klein, and Susan B. Tuchman, the director of its Center for Law and Justice, emphasized that Mr. Marcus’s notification that the Education Department had adopted the expansive definition of anti-Semitism was particularly noteworthy.
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