A Blind Eye to Campus Anti-Semitism?

KENNETH L. MARCUS
September 2010

During the first years of the 21st century, the virus of anti-Semitism was unleashed with a vengeance in Irvine, California. There, on the campus of the University of California at Irvine, Jewish students were physically and verbally harassed, threatened, shoved, stalked, and targeted by rock-throwing groups and individuals. Jewish property was defaced with swastikas, and a Holocaust memorial was vandalized. Signs were posted on campus showing a Star of David dripping with blood. Jews were chastised for arrogance by public speakers whose appearance at the institution was subsidized by the university. They were called “dirty Jew” and “fucking Jew,” told to “go back to Russia” and “burn in hell,” and heard other students and visitors to the campus urge one another to “slaughter the Jews.” One Jewish student who wore a pin bearing the flags of the United States and Israel was told to “take off that pin or we’ll beat your ass.” Another was told, “Jewish students are the plague of mankind” and “Jews should be finished off in the ovens.”

When complaints were lodged over these incidents, which took place in 2003 and 2004, the university responded either with relative indifference or with little urgency. But when the federal government was asked in 2004 to intervene to deal with incidents that its own investigators had determined to be clear-cut violations of the civil rights of Irvine’s Jewish students, the U.S. Department of Education’s Office for Civil Rights failed to prosecute a single case. Indeed, it has finally become clear that the current policy of the office charged with enforcing civil rights at American universities involves treating anti-Jewish bias as being unworthy of attention—a state of affairs in stark contrast to the agency’s quite justified alacrity in responding to virtually every other possible case of discrimination. While one cannot identify the motive for this astonishing double standard with complete certainty, the justification for it involves an unwillingness to treat Jews as a distinct group beyond considerations of religious adherence.

Faced with the demand to address anti-Semitic actions verified by its own investigators, the federal government passed on prosecution because it was unable to define the group that was the victim of the assault. Washington found itself unable to answer the question “Who is a Jew?”

The lack of a coherent legal conception of Jewish identity has rendered the Office for Civil Rights (henceforth, OCR) unable to cope with a resurgence of anti--Semitic incidents on American college campuses, of which the Irvine situation is enragingly emblematic. The problem stems from the fact that federal agents have jurisdiction under Title VI of the Civil Rights Act over race and national-origin discrimination—but not over religion. And because they have been unable to determine whether Jewish Americans constitute a race or a national-origin group, they found themselves unable to address the anti-Semitism at UC-Irvine. This confusion has led to enforcement paralysis as well as explosive confrontations and recriminations within the agency.

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In Title VI of the Civil Rights Act, passed in 1964, Congress prohibited discrimination on the basis of race, color, or national origin in federally funded universities and public schools. Over the years, other statutes have expanded the list of suspect classifications to include sex, age, disability, and even membership in the Boy Scouts and other patriotic youth groups. Yet adhering closely to its congressional mandate, OCR has generally declined to pursue anti-Semitism allegations, because none of the pertinent statutes mentions religion. Over the years, there have been suggestions that OCR should ban anti-Semitism under its race and national-origin jurisdiction, but OCR has been reluctant to suggest that Jews are members of a biologically or nationally distinct group. One can acquire Jewish identity by a process of conversion, and it was, after all, Adolf Hitler who insisted that “Jewry is without question a race and not a religious community” before he began his program of mass murder.

Yet even though being a Jew is not strictly a matter of ancestry, it is a group identity that involves more than adherence to a particular faith. Indeed, the idea that Judaism is nothing more than a religion in which Americans are merely practitioners of a “Mosaic” or “Hebrew” creed—a point of view once advocated by the founders of the Reform movement of Judaism—is now widely rejected by virtually every denomination of Judaism. In 2004, when I ran OCR during the first term of the George W. Bush administration, the office pledged for the first time to enforce Title VI against those forms of anti-Semitism that are based on Jewish ethnic or ancestral heritage. With that pledge, I conceded that purely religious discrimination is not prohibited under this law. Yet drawing on a unanimous U.S. Supreme Court decision in 1987, we at OCR declared that discrimination on the basis of ethnicity or ancestry was no more permissible against groups that have religious attributes than against groups that do not. That decision—in the case of Shaare Tefila Congregation v. Cobb—held that Jews are a “race” within the meaning of the Civil Rights Act of 1866, because Congress had, at the time of the 1866 Act’s passage, considered Jews a racial group. My argument was that the 1866 Act and the 1964 Civil Rights Act should be read together, because the latter statute was intended in part to fulfill the mandate of the former. This policy was largely disregarded, however, during the second George W. Bush administration and has also been disregarded during the Obama administration.

This failure to enforce the law is illustrated by the government’s refusal to respond to the situation at Irvine. In a lengthy, detailed, and disturbing 2004 complaint filed with OCR against UC-Irvine, the Zionist Organization of America (ZOA) charged that the school fostered a hostile environment for Jewish students in violation of Title VI. With extraordinary specificity, ZOA detailed the situation Jewish students faced. As ZOA demonstrated, campus speakers were delivering lectures that some Jewish students considered to be anti-Israeli, anti-Jewish, or both. OCR would later observe that many of these speakers were known for using “strong rhetoric” when criticizing the State of Israel and, in some cases, denying Israel’s right to exist. In fact, this “strong rhetoric” included virtually the entire arsenal of traditional anti-Semitic propaganda: Holocaust inversion, racial hatred, ethnic stereotypes, conspiracy theories, physical intimidation, and even the medieval blood libel.

As the case proceeded before OCR, ZOA argued that one frequent Irvine speaker, Amir Abdel Malik Ali of the Masjid Al-Islam mosque in Oakland, California, used Irvine’s podiums to advance many of the most potent anti-Semitic stereotypes. In February 2005, Malik Ali argued, “This ideology of Zionism is so racist, so arrogant, based so much on ignorance.” Invited to return the following year, he called Jews “the new Nazis ... they’re saying ... when you see an Israeli flag next to an American flag, they’re saying we’re with imperialism. We are down with colonialism. We are down with white supremacy.” He warned Jewish students, “You settle on stolen land, you got to deal with the consequences.” More bluntly, he threatened that “now it’s time for you to live in some fear ... because you were so good at dispensing fear. You were so good at making people think that y’all was all that and the Islamic tide started coming up.” He railed against “liars. Straight up liars, Rupert Murdoch, Zionist Jews.” He used the conspiracy stereotype to anticipate and defuse the inevitable anti-Semitism charge: “They say it’s anti-Semitic if you say Jews control the media.” He argued that “anti-Semitism” charges reflect Jewish arrogance and racism: “They have taken the concept of the chosen people and fused it with the concept of white supremacy.” He explained, “Once you take the concept of chosen people with white supremacy and fuse them together, you will get a people who are so arrogant that they will actually make a statement and imply that [they] are the only Semites. That’s arrogance and it’s the same arrogance they display every day and that’s the same type of arrogance that’s getting them into trouble today.” Malik Ali culminated his remarks by invoking the classic blood libel, which Christians used from the Middle Ages onward to justify the indiscriminate killing of Jews: “You all definitely don’t love children and you know why? Because you kill them.”

Irvine’s administration was, ZOA argued, “silent and passive” in the face of these and other incidents. This, for example, was ZOA’s view of the administration’s response to a Jewish student who expressed her fears to several Irvine administrators, including its chancellor at the time. The student wrote: “Not only do I feel scared to walk around proudly as a Jewish person on the Irvine campus, I am terrified for anyone to find out. Today I felt threatened that if students knew that I am Jewish and that I support a Jewish state, I would be attacked physically.” ZOA claimed that the school’s then-chancellor, Ralph J. Cicerone, never responded to the student’s letter. The student-services administrator who did respond, Thomas Parham, allegedly recommended that the student seek professional counseling. Irvine’s administration vigorously defended not only the right but also the value of anti-Semitic hate speech. Vice Chancellor Miguel Gomez, for example, allegedly insisted that “one person’s hate speech is another person’s education.”

Yet after investigating the Irvinecase for more than three years, OCR dismissed the ZOA complaint on November 30, 2007, on grounds of timeliness, the adequacy of Irvine’s response, and failure to provide sufficient factual information to proceed. In reply, Irvine officials proclaimed that their institution had been fully exonerated. Irvine’s much-heralded law-school dean, Erwin Chemerinsky, insisted that the “Office for Civil Rights of the United States Department of Education did a thorough investigation and concluded that there was no basis for finding that there was a hostile or intimidating environment for Jewish students on campus at the University of California, Irvine.”

It should have been clear to Chemerinsky that he was, at the least, overstating his case. In fact, OCR had dismissed several of ZOA’s claims on merely technical grounds, some claims have still not been resolved, and those that OCR did resolve are still under appeal. But the most important thing that Chemerinsky and his colleagues did not say (and what the public did not know until now) was that career OCR officials in California had reached the opposite conclusion but were overruled by political appointees in Washington.

What follows is the hidden history of OCR’s Irvine investigation, which has come to light largely through the testimony of OCR officials, not in the Irvine case, but in an employment discrimination case that OCR’s California regional director, Arthur Zeidman, subsequently brought against the agency.