US Congress 390.
The organized Jewish community in the US has just cast a big vote of confidence
for civil rights lawsuits to protect Jewish students. This is surprising because
recent indications were that it would go the other way.
Council for Public Affairs’ new resolution garnered considerable controversy for
several months, but its unexpected outcome is cause for
Ironically, the JCPA’s major advance was not what anyone
The JCPA, an umbrella group, represents many major Jewish
organizations, including the Anti- Defamation League and the American Jewish
Committee. At its May plenum, the JCPA issued a major statement endorsing the
protection of Jewish students under Title VI of the Civil Rights Act of 1964.
That statute prohibits racial and ethnic discrimination at federally funded
Until 2004, when I headed the US Education
Department’s Office for Civil Rights, the government took the position that Jews
were excluded. The reason was that the statute omits the word religion.
issued guidance eight years ago clarifying that Jews would henceforth be
included, because Jews sometimes face racial and ethnic harassment. Sadly, on
many college campuses, anti-Israel attitudes can morph into more traditional
forms of anti-Semitism. After I left the agency, my successors backslid,
stripping Jewish students of civil rights protections. In 2010, after a long
campaign by Jewish groups, the Obama administration announced that it would
protect Jewish students.
Recently, the Jewish community has appeared to
be the victim of its own success. Although the Jewish world had been united in
seeking civil rights protections in 2010, it became divided afterwards over how
to enforce those protections. The JCPA entered the fray with a draft resolution
which appeared to criticize Jewish groups that use Title VI too
Their argument was that excessive zeal could violate the
freedom of speech.
The JCPA encountered a stiff backlash. The National
Conference on Jewish Affairs, a competing umbrella group, countered that “there
is no basis for assuming... that Jews are more likely than other groups to
assert frivolous Title VI claims, and we note that this unfortunate insinuation
is resonant of historical and hysterical stereotypes about Jewish greediness,
dishonesty and power-hunger.”
The JCPA’s final resolution was the
opposite of what critics expected. It is a balanced statement affirming two
First, “Title VI provides an important remedy” in
serious anti-Semitism cases. Second, it should be used cautiously, with due
consideration for freedom of speech. Wisely, the final resolution omits language
critical of other groups. Thus, it became a useful
Ironically, the most significant part of the JCPA’s
resolution escaped attention until now. In a surprise move, the organization
urged Congress to pass legislation prohibiting religious harassment in federally
funded institutions, just as it prohibits racial and ethnic bias.
not a new idea. I proposed a broad ban on religious discrimination in a 2006 law
review essay. That proposal was incorporated in legislation introduced shortly
afterwards by then-Senator Arlen Specter and Rep. Brad Sherman.
the first time that the Jewish world has gotten behind the measure, which has
languished before Congress until now.
Some professionals were caught off
guard. This can be seen in the response of staffers who questioned the wisdom of
the measure even as their leadership approved it. The sticking point was whether
a ban on religious discrimination could bar Jewish institutions from favoring
In fact, this criticism does not apply to the JCPA language,
although it may have applied to earlier proposals. Happily enough, the JCPA
resolution adopts a more streamlined view, banning only religious harassment
rather than other forms of religious bias. This careful language should resolve
the staffers’ concerns.
The Jewish community now appears poised to push
for legislative reform. This is a welcome development. There will be one more
potential glitch. When Jewish groups push to ban religious harassment, they may
splinter over what harassment means.
Liberals have taken a broad view of
what counts as harassment, while conservatives tend toward a narrower view.
Similarly, the Office for Civil Rights has embraced a broader view, while the
Supreme Court has applied a narrow one. People will be tempted to craft partisan
Some may back liberal versions, while others back conservative
versions. This would lead to partisan gridlock. Reform will not succeed unless
it is bipartisan and consensual.The writer is President & General
Counsel of The Louis D. Brandeis Center for Human Rights Under Law and former
Staff Director of the US Commission on Civil Rights.
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