Biden Administration's Investigations Of Campus Antisemitism Have Flopped

No institution of higher education in America better exemplifies the way antisemitism has been mainstreamed than the City University of New York. The post-Oct. 7 mayhem and pro-Hamas tent encampments at more prestigious schools like Columbia, Harvard, the Massachusetts Institute of Technology and the University of Pennsylvania have garnered more headlines in the mainstream press. But on its many campuses throughout the five boroughs, CUNY has become a compelling illustration of how toxic woke ideas like critical race theory and intersectionality have normalized prejudice against Jews.

A quick look through the lengthy list of JNS stories about what has been going on at CUNY in recent years reveals left-wing groups, students and faculty operating to create a hostile environment for Jews—incidents so brazen as to remove any doubt about what they were doing or their consequences. Equally obvious has been the utter indifference to, if not active complicity, on the part of CUNY’s administration, in this disgrace.

So, the announcement last week that the Department of Education’s Office of Civil Rights (OCR) had handed down a ruling on the numerous complaints brought against the CUNY system for violating Title VI of the 1964 Civil Rights Act during the academic year of 2019-20 (numerous acts of antisemitism since then were not covered) should have been a long-awaited moment of reckoning for the school. More than that, it should also have been a turning point in the struggle to raise awareness and bring accountability to schools that have been guilty of allowing antisemitism to flourish. After all the effort put into documenting the many instances of prejudicial conduct, the OCR could have sent a message to the nation that the federal government was finally taking the plague of campus antisemitism seriously.

Barely a slap on the wrist

But the agreement between the Department of Education and CUNY that was published last week did none of those things. While the government verified the claims of those Jewish individuals who had complained of discriminatory conduct, its response to the now-documented instances in which the school had allowed these violations to occur and took no steps to defend its Jewish students was minimal. In what can barely be described as even a slap on the wrist, CUNY was left off with warnings and orders to conduct more investigations and report further developments to Washington; provide more employee and campus security officer training; and issue a “climate survey” to students.

The administration of CUNY or any of the many other schools under investigation because of complaints brought against them for antisemitism could be forgiven for responding to this ruling with laughter.

It should be remembered that the Department of Education has enormous leverage over virtually every American college and university since all but a few of them rely on federal funds for their existence. Some of the richest of universities with enormous endowments—Columbia’s is valued at an impressive $13.6 billion, Penn’s a healthy $21 billion, MIT’s $23 billion and Harvard’s is worth a staggering $50.7 billion—might survive without the steady flow of money from Washington to sustain themselves. But most could not.

Yet in the 60 years since Congress passed the Civil Rights Act, no school has ever faced the most severe punishment for violating the law by permitting forms of discrimination on the basis of race, color or national origin. That’s largely because the revolution in civil rights that occurred in the 1960s convinced American colleges and universities to take the law seriously. If any federally funded institution was shown to have tolerated racism against African-Americans, Hispanics or Asians in the manner that CUNY did with Jews, there’s no doubt that the Education Department would come down on them like a ton of bricks with the most severe penalties.

Yet the OCR has treated the CUNY case with the sort of light treatment that sends the exact opposite message than the one many in the Jewish community wanted, including those groups and public-interest groups dedicated to bringing such cases to the attention of the government.

To make it even worse, the secretary of education accompanied the announcement of the settlement with CUNY, as well as a similar one with the University of Michigan, with the sort of self-congratulatory statement that indicated he was convinced that all that was required of his department was an acknowledgment of the problem without having to do anything serious about it.

“The Department of Education’s Office for Civil Rights continues to hold schools accountable for compliance with civil rights standards, including by investigating allegations of discrimination or harassment based on shared Jewish ancestry and shared Palestinian or Muslim ancestry,” said Miguel Cardona.

That he combined this investigation with one about the largely non-existent problem of Islamophobia added insult to injury for the Jewish community, as well as indicated that even when pressed to do something about the dangerous surge in antisemitism, the Biden administration has been more concerned about sending a signal to Muslim-Americans and left-wing Democrats behind the Jew-hatred that their interests are equally as important. Indeed, as Rabbi Asher Lopatin, director of community relations at the Jewish Federation of Greater Ann Arbor, told JNS, combining the two claims is an “‘All Lives Matter’ thing. This is a time to say Jewish lives matter.”

A wake-up call

As disappointing as the end result turned out, it is also a wake-up call to the Jewish community about what they should be doing about antisemitism on college campuses. For the last two decades, those focused on the growing instances of discrimination against Jews rooted in hatred for Israel in higher education have looked to Washington, and specifically the OCR, for redress.

It took a long struggle for the OCR to realize that Title VI should apply to antisemitism as much as it did to racism against other minorities. A consensus among legal authorities that this was the way to go was built first under the administration of George W. Bush and then confirmed under President Barack Obama. But the breakthrough occurred when, building on the work of his predecessors, former President Donald Trump signed an executive order in 2019 formally extending Title VI protections to Jewish students against antisemitic hate on college campuses due to vicious incitement rooted in leftist ideology and discriminatory actions promoted by the BDS movement.

Trump’s order was bashed by the liberal press as an attempt to suppress free speech or even as itself antisemitic by those determined to oppose anything he did. Nevertheless, the precedent stood and has not been challenged by his successor’s administration.

These efforts to defend the principle that Jews are as entitled to Title VI protections as any other minority subjected to prejudice were both important and a worthwhile achievement in principle. But in practice, it hasn’t amounted to much. It’s true that schools like CUNY are now instructed to use the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism that specifies how it is applied to hate rooted in anti-Israel smears. Yet if even as flagrant a violator as CUNY gets nothing more than a slap on the wrist, the message to American higher education is that there is no reason for any of them to seriously re-evaluate their toleration of campus antisemitism.

Indeed, even with 149 pending investigations into campus antisemitism in the OCR’s docket, many schools showed this spring exactly how little consideration they give to the prospect of such punishment from a federal government that has tremendous financial power to hurt them.

When faced with the dilemma of how to deal with campus revolts by groups sponsoring pro-Hamas encampments and other acts of egregious antisemitism on their campuses since Oct. 7 by making concessions to the protesters that amounted to promises to consider supporting their agendas that would clearly violate Title VI. After lengthy delays, Columbia and the University of California, Los Angeles called in the police to remove these illegal encampments and those occupying school buildings. But Northwestern, Brown, Rutgers, Johns Hopkins, the University of Minnesota and the University of California, Riverside were among those academic institutions that chose to appease those chanting for the destruction of the only Jewish state on the planet and terrorism against Jews.

The CUNY settlement is more evidence that those institutions that bend the knee to the antisemites are unlikely to face any repercussions from the federal government.

OCR complaints are an exercise in futility

The response from some in the Jewish community to this disheartening development is equally discouraging.

The Louis D. Brandeis Institute for Human Rights Under the Law has done great service in highlighting the problem of antisemitism and seeking action from the government. Indeed, its founder and chairman, Kenneth L. Marcus, played key roles during his time in the OCR under Bush and Trump securing agreement about Title VI’s applicability to antisemitism. It represented the students who brought a complaint against CUNY’s Brooklyn College and is mostly focused on bringing cases to the OCR.

Alyza Lewin, its president, called the CUNY settlement, “a step in the right direction as it recognizes that CUNY failed to adequately address the problem and sets up federal monitoring and oversight.”

If that’s the best that years of efforts to convince the Department of Education to act can accomplish, it’s obvious that the emphasis on such complaints, as if they were an end in and of itself, is little more than an exercise in futility.

The reaction of the Zionist Organization of America, which has been active in highlighting the issue, was more to the point.

Susan Tuchman, director of ZOA’s Center for Law and Justice, was correct to state: “Given this sordid history of antisemitism at CUNY, OCR would have been justified to call for the suspension or withholding of federal funding to CUNY. At a minimum, the resolution agreement should have required CUNY to acknowledge its many mistakes in the past, and to take steps that would truly enhance its ability to recognize and respond to antisemitic harassment in the future.”

The problem at the Department of Education is systemic. The OCR’s investigators clearly see themselves as equally committed to protecting the schools and their funding as they are to defending the rights of students. Just as important, while the leadership of the department has, at times, been assertive in seeking to focus on the issue of antisemitism, the federal employees who work there are not. Like the rest of the federal bureaucracy, they tend to be left-leaning and thus unlikely to seek actions that would address the impact of the conquest of higher education by woke ideologues.

So if looking to the OCR for redress is proving to be a dead end, what should the Jewish community do about this plague of antisemitism on college campuses? The Tikvah Fund’s Eric Cohen is right to advise Jews to have an “Exodus” from institutions that are invariably hostile to Jews and remove their funds and their children to those that are friendlier.

Take them to court

However, if the goal is to punish places that are hotbeds of antisemitism and thus possibly change them, there are other options. Rather than go to the Department of Education, these schools can be taken to court.

That’s what the Deborah Project, a public-interest Jewish law firm, has been doing. Its legal director, Lori Lowenthal Marcus, said the CUNY settlement illustrated the futility of relying on the OCR.

“The settlement of nine investigations into discrimination in education at various CUNY schools by the Department of Education makes crystal clear the problem of dumping complaints into the DoE hopper,” said Marcus. “There is no zealous advocacy on behalf of a client/plaintiff, but instead an efficiency-driven process whereby vague efforts to ‘do better going forward’ are dressed up as a blow against discrimination. Going to court where the factfinder is neutral but the parties are represented by lawyers dedicated to advocating for their clients is more likely to result in a clearly delineated and productive result.”

Though the wheels of justice can grind very slowly and there are no guarantees that federal courts will come to the right decisions about such cases, Marcus is right. Those Jews interested in seeking accountability for the antisemitic discrimination they’ve suffered would do well to go to groups like the Deborah Project rather than those who are only interested in reporting claims to the Department of Education.

The only other possible avenue to pursue is essentially political. Both the White House and Congress can get behind laws that will force the department’s hand rather than wait for an indolent bureaucracy to take actions that it clearly opposes. But until we have a president and a congressional consensus united behind the goal of defunding schools that ignore antisemitism, the courts are probably the best hope for making those who have tolerated the victimization of Jews pay for what they’ve done.

Jonathan S. Tobin is editor-in-chief of the Jewish News Syndicate.