Rutgers case demonstrates anti-Semitism is in the eye of the beholder

We Jews are among the strongest supporters of the First Amendment of the U.S. Constitution that guarantees freedom of speech. Sometimes this freedom can be uncomfortable, as it protects almost all speech, on college campuses and overall, including expressions of racism and anti-Semitism. In fact, the academy is uniquely the place where students can hone their critical thinking skills by exposure to the full marketplace of ideas — some of which may be disturbing to them. At the same time, Jewish students, indeed all students, must be safe from harassment and intimidation, which might prevent them from enjoying the educational and social opportunities provided by their chosen academic institutions. 

But where do we draw the line?

As many NJJN readers know, the Office of Civil Rights (OCR) of the U.S. Department of Education — under its new assistant secretary of education for civil rights, Kenneth Marcus — has reopened an investigation into Rutgers University to determine whether the school violated Title VI of the Civil Rights Act of 1964 with respect to its Jewish students. The decision is based on a complaint lodged by the Zionist Organization of America (ZOA) in 2011, previously rejected by the Department of Education under President Barack Obama.

While ZOA’s complaint included a series of accusations, the OCR based its decision on alleged discrimination in a program sponsored earlier that year by a student group, Belief Awareness Knowledge and Action (BAKA). The alleged discrimination: Only Jewish and “pro-Israel” students were charged an admission fee to the program. (I was at this event along with many other community members, responding to an urgent call by Rutgers Hillel to show solidarity with Jewish students.)

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More context: Initially, Jews were not a protected group under Title VI, but since 2010 Jews, Muslims, and Sikhs have been included as “ethnicities.” A Title VI violation is deemed to occur when an institution that receives federal funds (Rutgers qualifies, of course) does not adequately respond if it is aware that a hostile environment, directed at one or more students in a protected group, exists on campus. To meet the threshold for a Title VI violation, the hostile environment must be severe, pervasive, or persistent.

In the case of Rutgers, and presumably all other universities going forward, the OCR has made it clear that multiple forms of anti-Semitism will be considered when determining the existence of a hostile environment. The definition of anti-Semitism that will be employed by the OCR is the same as the working definition used by International Holocaust Remembrance Alliance (IHRA). In addition to classical anti-Semitism, this includes Israel-related forms, such as “denying the Jewish people their right of self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor…applying double standards by requiring of it behavior not expected or demanded of any other democratic nation…drawing comparisons of contemporary Israeli policy to that of the Nazis.” These largely track the three D’s of Israel-related anti-Semitism utilized by the U.S. Department of State, namely delegitimization, demonization, and application of a double standard.

Rutgers is fully cooperating with the OCR investigation. Will that investigation — which can look at situations beyond the 2011 BAKA program — uncover a Title VI violation, i.e., a severe, pervasive, or persistent hostile environment on campus toward Jewish students to which the school failed to adequately respond? (In theory, this should go both ways; there could be a hostile environment for anti-Israel Jewish students, not only pro-Israel Jewish students.) It’s possible, I suppose, but having spent three semesters on the campus to take advantage of a senior citizens auditing program, and having spoken with many Jewish students over the years, I would be shocked if that has happened. Of course, this doesn’t mean Rutgers has handled every matter involving Jewish students perfectly. In my view, it hasn’t. 

Not surprisingly, the ZOA was thrilled to learn that the investigation had been reopened, asserting in a statement, “We are hopeful that with Assistant Secretary Kenneth Marcus’ leadership at OCR, Rutgers will finally be held accountable for failing to protect Jewish students from harassment and discrimination.” J Street, on the other hand, criticized the move, arguing that doing so “is inclined to suppress criticism of Israel on college campuses — even if that means trampling on constitutionally-protected free speech.”

In a Sept. 12 letter to The New York Times, Rabbi David Levy, New Jersey’s regional director of American Jewish Committee (AJC), wrote, “We welcome the decision to use this [IRHA] definition, which recognizes that some anti-Israel conduct crosses the line into anti-Semitism and is one of several factors that may be considered in determining if an act was anti-Semitic.” The AJC also expressed appreciation to Rutgers for its cooperation with the OCR.

In an email to me, Evan Bernstein, regional director of the New York/New Jersey Anti-Defamation League, expressed strong support for the OCR’s efforts to protect Jewish students on campus. “I also believe,” he asserted, “that Congress should pass the Anti-Semitism Awareness Act, which would require the OCR to take into consideration the State Department’s definition of anti-Semitism in examining questions of anti-Semitism on campus under Title VI.” He did not address the Rutgers case directly.

The academic community is adamantly against the OCR investigation. The American Association of University Professors, the Rutgers Faculty Union, and the American Federation of Teachers issued a joint statement decrying the OCR’s decision: “Our unions are committed to both the free expression of ideas and to challenging racism, xenophobia, and anti-Semitism on our campuses. The fight against hate is undermined when Trump administration officials attempt to equate political debate with racial, ethnic, or religious intolerance. If our institutions of higher learning cannot provide space for open political debate, then democracy will wither even more under this administration.”

It’s worth mentioning that in 2016 the University of California Board of Regents considered, and ultimately rejected, adopting the State Department definition of anti-Semitism, that it is the denial of the Jewish people’s right to national self-determination. Instead, the Board determined that “anti-Semitic forms of anti-Zionism” were among the kinds of discrimination that would not be tolerated. As for what anti-Zionism is anti-Semitic, and what is not — well, they didn’t offer clarity on that question. 

Traditional forms of anti-Semitism — such as accusing Jews of participating in an international conspiracy; controlling the media, economy, government, and other institutions; or Holocaust denial — are easy to spot. And when anti-Israel animus is no longer merely rhetorical but takes the form of real harassment — e.g., blocking Jewish students at mock checkpoints set up in campus public spaces, or placing fake eviction notices under the dorm room doors of Jewish students — then, in my view, the university has an obligation to intercede. These kinds of behavior, if not addressed promptly and effectively, can lead to the kind of hostile environment outlined in Title VI.   

But how should a university respond when the issue isn’t harassment or intimidation, but anti-Israel-related expressions that may not be considered anti-Semitism? For example, should universities ban Israel Apartheid Week, a regular fixture on many college campuses? What about BDS resolutions or a student-sponsored program in which a speaker argues that Israel’s forced removal of Palestinians from their villages in its War of Independence was a form of ethnic cleansing? Is Breaking the Silence, a program that brings former IDF soldiers to campuses to describe Israeli human rights violations, a form of anti-Semitism that a university should discourage?

There will be times when the use of Title VI to protect Jewish students is necessary. But this blunt instrument ought to be deployed only as a last resort, when a university fails to act in the face of clearly discernible harassment or intimidation.

Instead of playing defense by policing anti-Israel activity on the campuses, we should be proactive and equip our Jewish students with a thorough understanding of Middle East realities to enable them to respond effectively.

Because trying to silence our opposition is a losing strategy, one that makes us appear fearful of free and open debate. Instead, let’s do what it takes to become more effective communicators in the marketplace of ideas. 

Martin J. Raffel of Long Branch is former senior vice president at the Jewish Council for Public Affairs.