By Rose Lapp
Associate Editor, Volume 24
In 2011, The Zionist Organization of America filed a religious discrimination claim against Rutgers University with the Department of Education Office of Civil Rights (“OCR”). The complaint had three claims. One of these claims, the one being addressed by the Department of Education and by this piece, arose out of an event held on campus by a pro-Palestinian group. Allegedly, there was originally free admission to the event, but the organizers began charging admission “only after [they] observed ‘150 Zionists’ who ‘just showed up.’”
Under Title VI of the Civil Rights Act of 1964, OCR has jurisdiction over discrimination on the basis of race, color and national origin. Under Title IX of the Educational Amendments of 1972, the office has jurisdiction over sex discrimination claims. Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975 gives OCR jurisdiction over discrimination on the basis of disability and discrimination on the basis of age, respectively. The office does not, however, have jurisdiction over religious discrimination claims.
In 2014, on the grounds that there was insufficient evidence of discrimination on the basis of national origin, the Department of Education closed the case. However, now four years later, Kenneth Marcus, the current Assistant Secretary for the Office of Civil Rights at the Department of Education, has reopened the case. He has indicated that he will reexamine the complaint as “possible discrimination against an ethnic group,” and has expanded the definition of anti-Semitism in the OCR context to a “working definition” that is used in other government agencies. This definition includes “denying the Jewish people their right to self-determination” and “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.” These changes will likely have serious consequences for discrimination claims brought by Jewish students.
This approach is not entirely without precedent. In 2004, during Marcus’s first term as Assistant Secretary for Civil Rights at the Department, OCR issued a guidance letter interpreting Title VI to allow OCR to prohibit national origin discrimination, “regardless of whether the groups targeted for discrimination also exhibit religious characteristics.” The rationale for this interpretation is that the presence of religious discrimination does not negate the presence of ethnic or national discrimination. Especially as written against the backdrop of the events of September 11, 2001, this approach makes a lot of sense. For Muslim students at that time, religious discrimination was hard to separate from ethnic discrimination, and it was (and remains) important for the Department of Education to be able to address discrimination claims with origins that may arguably be both religious and ethnic. This same concern applies to Jewish students.
However, I think the ZOA complaint against Rutgers is distinguishable from the kind of discrimination the guidance letter was meant to address. As Marcus and the OCR have explained, when there is both religious and ethnic discrimination at play, the Department has jurisdiction over the case. The question here is whether that should hold true when the primary motivation behind the alleged discrimination appears to be political. As Marcus acknowledges in his letter to Rutgers University on August 27, 2018, Title VI “does not address discrimination on the basis of political opinions.”
At the forefront of the treatment of this complaint is the question of how to distinguish ethnic discrimination from religious discrimination and from political discourse. The Israeli-Palestinian conflict involves a complex web of religious, ethnic, political, and economic tensions that may well be impossible to untangle. Viewing the situation through the lens of the 2004 guidance letter, it makes sense to re-evaluate this case as a possible instance of ethnic discrimination.
The fact that this case was brought by the Zionist Organization of America, rather than the Rutgers students themselves, is one indication that the incident may have been politically motivated. Also, the incident arose out of an event on campus that was political in nature. Part of the evidence for ZOA’s claim that admission fees were charged only for Jewish students was the previously mentioned email that noted that “150 Zionists… just showed up,” which indicates that the fees, if then imposed, may have been a reaction to a protest, not to an ethnic group. The amount of feedback (both positive and negative) that these proposed changes to the interpretation of anti-Semitism are eliciting is also an indication that the treatment of this case goes further than did the guidance letter in 2004. Some groups, for example, are concerned that the adoption of the State Department’s interpretation of anti-Semitism in an educational context might have the effect of threatening free speech in schools.
There are also arguments for the claim that an expansion of the definition of anti-Semitism as it applies in this case is a natural extension of the 2004 guidance letter. In a statement made after the reopening of the case was announced, ZOA leadership applauded the decision, explaining that attacks on Zionism and Israel are “often a mask for Jew-hatred, plain and simple,” as opposed to political discourse. If attacks on Zionism can be equated with anti-Jewish religious or ethnic discrimination, then the expansion of anti-Semitism falls within the definition of ethnic discrimination outlined in the 2004 guidance letter. Marcus adopts this perspective in his letter when he writes that “the visual perception of the presence of ‘150 Zionists’ referenced in the email could have been rooted in a perception of Jewish ancestry or ethnic characteristics common to the group.”
It will be interesting to see whether this adoption of a new definition of anti-Semitism will prompt another guidance letter, as well as whether the broadening of the use of Title VI claims to cover situations in which the alleged discrimination may be based on political views will extend past the anti-Semitism context.
 See Erica L. Green, Education Dept. Reopens Rutgers Case Charging Discrimination Against Jewish Students, N.Y. Times (Sept. 11, 2018), https://www.nytimes.com/2018/09/11/us/politics/rutgers-jewish-education-civil-rights.html?emc=edit_na_20180911&nl=breaking-news&nlid=58131859ing-news&ref=headline&module=inline.
 See id. (citing language from the ZOA complaint).
 About OCR, https://www2.ed.gov/about/offices/list/ocr/aboutocr.html (last visited Oct. 7, 2018).
 U.S. Dep’t. of Educ., Letter to Rutgers University (Aug. 27, 2018) available at https://www.insidehighered.com/sites/default/server_files/media/Rutgers%20Appeal.pdf.
 Green, supra note 1.
 Michael Stratford, Trump Administration Adopts New Definition of Anti-Semitism in Schools, Politico (Sept. 11, 2018), https://www.politico.com/story/2018/09/11/trump-anti-semitism-schools-781917.
 U.S. Dep’t. of Educ., supra note 6.
 U.S. Dep’t. of Educ., Dear Colleague Letter: Title VI and Title IX Religious Discrimination in Schools and Colleges (Sept. 13, 2004), https://www2.ed.gov/about/offices/list/ocr/religious-rights2004.html.
 U.S. Dep’t. of Educ., supra note 6.
 Green, supra note 1 (citing language from the ZOA complaint).
 See Stratford, supra note 5 (“But some civil liberties organizations and advocates for Palestinian rights believe that the definition is so broad that it would label criticism of Israel as anti-Semitic.”).
 Will Creely, New Federal Anti-Semitism Act, Same First Amendment Problem, FIRE: Foundation for Individual Rights in Education (May 29, 2018), https://www.thefire.org/new-federal-anti-semitism-act-same-first-amendment-problem/.
 Green, supra note 1 (citing comments made by Morton A. Klein and Susan B. Tuchman).
 U.S. Dep’t. of Educ., supra note 6.