A Fine Line on Title VI
Guarded: Students at the University of California, Berkeley stage a mock Israeli checkpoint in protest of Israeli policies. Image by Joel Siegal
Do Jewish students deserve the same federal civil rights protections as African Americans, women and the disabled in the nation’s schools and universities? The official answer now is in the affirmative, and in principle, that seems only just and fair. After years of lobbying, Jewish groups led by the Zionist Organization of America managed to persuade the Obama administration to extend Title VI of the 1964 Civil Rights Act to cover members of religious groups on the basis of shared ethnic characteristics. This change effectively allows Jews to file for Title VI protection from anti-Semitic harassment and discrimination, or the sort of anti-Zionism that only thinly masks anti-Semitic intent.
How and when and under what circumstances those protections are sought is a matter of some debate — which is, in our opinion, a good thing. Any request for federal intervention has to be weighed against the message that is sent to individual students and to the broader community. Are Jews really a discriminated-against minority on the college campus of today? How can individuals be protected while the right to free speech maintained? Must the federal government be called to settle specific disputes? Can this remedy cause more harm than good?
To ask these questions is not to pretend that Jewish students never confront hostile environments in educational institutions. Just this month, an Israeli flag displayed by the campus Hillel at the University of California, Riverside, was defaced, the word “terrorists” scrawled across it. (U.C. President Mark G. Yudof quickly condemned the vandalism; campus police are investigating.)
But this sort of reprehensible activity is the unusual exception, not the rule. When considering the application of Title VI, we first must acknowledge that the vast majority of campuses today are not rife with anti-Semites and Israel-haters. The much-feared boycott, divestment and sanction movement has not scored a single, solid achievement. Vigorous debate over Israel, over anything, is as ubiquitious a feature of college life as all-nighters and frat parties.
So let’s first tone down the fear.
Then put Title VI into context. A recent survey by the Forward’s Naomi Zeveloff found that, in the year and a half since Title VI’s purview was extended, at least 10 anti-Semitism cases have been filed with either the Department of Education or in court. So far, in only one of these cases has the complainant been favored: a high school case in which Israel played no role.
Some of the cases filed and rejected were, to put it generously, a reach. A daughter ejected from a basketball team because she’s Jewish? A child teased in elementary school? This is a federal offense? Even Kenneth L. Marcus, who as president and general counsel of The Louis D. Brandeis Center, has a laser focus on civil rights and Jewish students, reiterated in an interview that the community “should not bring suits that are ill-founded or frivolous.”
The weightier challenge is to find the appropriate balance between protecting individuals and ensuring free speech, especially since there already is a tendency among some Jews to view Title VI as a legal weapon in their fight against anti-Israel sentiment.
A draft resolution coming before a May plenary session of the Jewish Council for Public Affairs says it well: “It is not in the Jewish community’s best interest to invoke Title VI to promote a ‘politically correct’ environment in which legitimate debate about the Israeli-Palestinian conflict is squelched and academic freedom is undermined, because use of the remedy in such circumstances could undermine its long-term effectiveness. It may also be in conflict with basic values of tolerance…”
And it may also not be good for the Jews.
Jewish students, that is.
Before embracing a law created to address centuries of horrific racial discrimination, we would do well to examine the message that sends to Jewish students, the vast majority of whom enjoy economic, social and educational privilege in our society. Shouldn’t they be strong enough to counter speech with more speech? Destructive ideas with constructive ones? And if not, isn’t it our job as parents, educators and communal leaders to instill knowledge and confidence in our children? There is a certain irony here, to see otherwise politically conservative leaders looking to the federal government for help.
Marcus argues that even the potential threat of a Title VI complaint can awaken an otherwise uncaring school administration to action. “The point is not to win individual cases. The point is to change the culture on campus,” he said, and arguably that is happening already. The vandalism at U.C. Riverside prompted a quick, definitive rebuke from President Yudof, whose predecessors may not have been so forthcoming.
Sadly, there will be extreme incidents where a Title VI remedy is a legitimate recourse; we should be grateful it exists. Still, it should be used sparingly and with respect for individuals and for history. Even the David Project, which has dialed back its once aggressive pro-Israel advocacy on campus, says in its latest report:
“There is widespread consensus that civil rights enforcement, including efforts to protect the rights of Jewish students, must respect freedom of speech and the doctrine of academic freedom. Contrary efforts could create a campus backlash against Israel supporters that erodes, rather than enhances, Israel’s standing.”
And, we might add, sends the wrong message to Jewish students and the community we hope they will lead someday.
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