By Kenneth L. Marcus, The Cutting Edge
April 22, 2011
On April 20, Cary Nelson and Kenneth Stern issued a widely discussed but troubling statement in response to recent allegations that anti-Semitism has gotten out of hand at three universities: the University of California, Berkeley, the University of California, Santa Cruz, and Rutgers. See it at http://www.aaup.org/AAUP/about/pres/let/antisemitism.htm.
On each of those campuses, activists have alleged a pattern of intimidation and harassment of Jewish students who support the State of Israel. These two authors carry weight because Nelson is president of the American Association of University Professors and Stern is the top anti-Semitism expert at the American Jewish Committee. Having spear-headed the federal government’s work on campus anti-Semitism for several years, I am pleased that these two figures are turning their attention to the topic, but I am disappointed that their statement is more critical of activists who are fighting this problem than of the perpetrators who have created it or the administrators who tolerate it.
Let’s start with the positive in Nelson and Stern’s letter. Nelson and Stern are right to highlight campus anti-Semitism, which has become a real and ugly problem involving harassment, intimidation, vandalism, threats, and occasional violence. Contemporary campus anti-Semitism is difficult to address because in many cases it is intermingled with criticism of Israeli politics, which is protected by both the First Amendment and the doctrine of academic freedom.
The problem is that many incidents go well beyond Israel-bashing to include anti-Jewish harassment, vandalism or violence. Given Nelson’s reputation as a champion of academic freedom, it is entirely welcome to see the AAUP president endorsing the use, for at least some higher education purposes, of the internationally recognized European Union Monitoring Center’s Working Definition of Antisemitism. http://fra.europa.eu/fraWebsite/material/pub/AS/AS-WorkingDefinition-draft.pdf As Nelson and Stern observe, this definition “while clearly stating that criticism of Israel in the main is not anti-Semitic, gives some examples of when anti-Semitism may be in play.” At my recommendation, the U.S. Commission on Civil Rights adopted the EUMC definition in 2006, and the U.S. State Department has adopted it too. Nelson commendably joins Stern – a co-author of the EUMC Working Definition – in insisting that it “is entirely proper for university administrators, scholars and students to reference the ‘working definition’ in identifying definite or possible instances of anti-Semitism on campus.” This is a big deal, because some university administrators continue to deny that there is any connection between anti-Israelism and anti-Semitism.
At the same time, it is also welcome to see Nelson and Stern emphasize the stringency of existing standards for establishing the existence of a hostile environment under federal civil rights law and the importance of respecting the protections of the First Amendment. When I served as head of the U.S. Department of Education’s Office for Civil Rights, I insisted that the freedom of speech be emphasized in any training or public education that OCR provided on the subject of harassment. Given Stern’s reputation as a champion in the fight against anti-Semitism, it is commendable for him to join Nelson in emphasizing that federal civil rights laws, such as Title VI of the Civil Rights Act of 1964, should be used as a weapon of last resort in countering anti-Semitism or other forms of bigotry. Most offensive statements do not rise to the level of civil rights violations, and there are many ways to combat bias short of filing lawsuits.
Nevertheless, Nelson and Stern are on weaker ground when they criticize those activists who have brought complaints against three campuses where serious problems have been identified. Specifically, Nelson and Stern provide no basis for their charge that “many” of the “recent allegations” of campus anti-Semitism “simply seek to silence anti-Israel discourse and speakers.” This unfounded claim is especially worrisome given the failure of many administrators to confront anti-Semitism with the same seriousness that they devote to other forms of prejudice. The administrators’ reluctance is understandable given that campus anti-Semitism is often associated with progressive and Muslim organizations and students and is therefore politically touchier on liberal campuses. This has led some activists, out of frustration with college administrators, to file formal complaints. Rather than holding these administrators accountable, however, Nelson and Stern criticize the activists who are urging them to confront anti-Semitism more firmly. Singling cases at Berkeley, Rutgers and Santa Cruz, Nelson and Stern warn that the Title VI litigation approach is “not only unwarranted under Title VI, it is dangerous.” In fact it is not the complaints but Nelson and Stern’s criticism which is not only unwarranted but dangerous.
The problem with Nelson and Stern’s analysis can be seen when the three cases are considered separately. In the Berkeley case, undergraduate Jessica Felber sued the university alleging that she was violently rammed with a heavily laden shopping cart because she was both Jewish and a supporter of Israel. Nelson and Stern are right to insist that federal law should not be used to silence anti-Israel discourse. In the Berkeley case, though, it is not speech that is at stake but the safety of college students. Moreover, Felber did not sue under Title VI, choosing instead to charge the university for failing to meet its legal duty of due care to provide for the security of its students. In the Rutgers case, the Zionist Organization of America has asked the university president to address a discriminatory environment in which, for example, Jewish students were allegedly charged an admission price to attend an event that was open to the public free of charge. Even Nelson and Stern concede that such conduct could violate Title VI. Finally, in the Santa Cruz case, lecturer Tammi Rossman-Benjamin alleges that her university created a hostile environment for Jewish students by tolerating an environment in which anti-Israel and anti-Semitic comments are persistent and pervasive. It is not clear what criticism Nelson and Stern have of Rossman-Benjamin’s complaint, but
Rossman-Benjamin certainly alleges more than the “individual remarks” which they rightly insist “do not rise to the level of creating hostile environments.”
The fundamental problem with Nelson and Stern’s analysis is that it fails to distinguish satisfactorily between the three separate questions that are raised whenever anti-Semitism is claimed on university campuses. The first question is whether the incidents are truly anti-Semitic. For these purposes, the Working Definition can provide an excellent guide. The second question is whether it is a violation of Title VI or other civil rights laws. This is a separate question, because single-incident harassment is typically insufficient to state an actionable claim in the education context. If an incident is anti-Semitic in the sense of the EUMC Working Definition, then one can infer that it is both discriminatory and objectively offensive. Under federal law, though, one must also ask whether the conduct is severe and/or persistent. The final question is whether the use of “censorship” or regulation of expressive conduct is justified. This is a separate inquiry because, as Nelson and Stern correctly acknowledge, there are many ways that university administrators can address hate and bias incidents short of punishing the perpetrators, such as by exposing bigotry, challenging it, and condemning it when appropriate. These are difficult questions, and the analysis is not well served when establishment figures aim their criticism against the few people who are trying to address the problem rather than the many who are allowing it to persist.
Kenneth L. Marcus is Executive Vice President of the Institute for Jewish & Community Research and author of Jewish Identity & Civil Rights in America (Cambridge 2010). He previously headed the U.S. Department of Education’s Office for Civil Rights (2003-04) and was Staff Director of the U.S. Commission on Civil Rights (2004-08).