Much Ado About No Change

April 4, 2006

Recent correspondence from the Education Department's top civil rights official has sparked concern that the agency is backing away from a 2004 policy of investigating anti-Semitism. But the Office for Civil Rights says that nothing is changing.

In a letter to the United States Civil Rights Commission, Stephanie Monroe, assistant secretary for civil rights, wrote that “OCR’s statutory framework under Title VI does not provide a basis upon which to exercise jurisdiction over claims solely alleging discrimination on the basis of religion.”

Under Title VI of the Civil Rights Act of 1964, OCR can investigate discrimination “on the ground of race, color, or national origin.” But as Monroe notes in her letter, the office “is to refer claims of religious discrimination to the Department of Justice.”

In 2004, Monroe’s predecessor, Kenneth Marcus, clarified OCR’s jurisdiction in two letters. Marcus wrote that “Title VI covers harassment of students of Jewish heritage regardless of whether the students may be Caucasian or American born. OCR cannot turn its back on victims of anti-Semitism on the grounds that Jewish heritage may include both religious and ethnic characteristics.”

Some activists interpreted Monroe’s letter as raising the bar for an investigation, because they read it to say that the department would not examine alleged anti-Semitism unless evidence explicitly suggests discrimination is also based on ethnic characteristics. “It’s very confusing,” said Susan Tuchman, director of the Center for Law and Justice at the Zionist Organization of America. Tuchman said the message she wanted from OCR was: “We are continuing to enforce the policy as it was expressed in 2004.”

Tuchman got a nearly identical letter from Monroe when she asked why an OCR investigation into alleged anti-Semitic harassment at the University of California at Irvine had come to a halt. Tuchman said she was informed by OCR that the case is ongoing, “so that’s hopeful,” she said.

In an e-mail, Monroe said that “there has been no change in our policy or our commitment to protect students, including Jewish students, from discrimination.”

Marcus, now the staff director for the U.S. Civil Rights Commission, said that the confusion -- and there is some among the commission's members -- stems from a technical issue. Marcus seemed to agree with Monroe’s letters, saying that the policy has been that “OCR would exercise jurisdiction, except in a case where actions are based very specifically on religious faith. I can’t say I came across any of those,” he added.

Tuchman said that because Judaism is recognized as an ethnicity, OCR should be able to investigate all claims of anti-Semitism, except perhaps in the narrow circumstance when “somebody is interfering with somebody else’s ability to carry out religious practices.” Nowadays, she added, “you see anti-Semitism disguised as anti-Israel, anti-Zionism; it’s not straight religious discrimination.”

Nathan Diament, Director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America, said that he isn’t worried. “I have known Monroe for some time,” he said. “We’ve been in touch with her about this issue, and she has expressed that she is as firmly committed to OCR dealing with these issues as her predecessor was.”

In a meeting Monday, some commission members went back and forth on the extent of OCR’s jurisdiction. “In my view, anti-Semitism is [fair territory for OCR], as the statute currently reads,” said Jennifer C. Braceras, a lawyer and member of the commission. Gerald A. Reynolds, head of the commission and also a lawyer, responded that he thinks Title VI gives OCR power to investigate anti-Semitism “to the extent it falls in one of those three buckets” of race, color or national origin.

Braceras replied that “religion and ethnicity are inseparable in this context.” But Reynolds remained unsure, and seemed to echo the exceptions noted by Marcus and Monroe.

By the end of its meeting, the commission passed recommendations, including one that “OCR should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI.” The commission also found that “many university departments of Middle East studies provide one-sided, highly polemical academic presentations” concerning debate about Israel. The commission correspondingly recommended that “federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct.”

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