Department of Education Redefines Antisemitism With No Public Notice

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Israel-aligned groups have announced that the U.S. Department of Education’s Office for Civil Rights (OCR) is using a widely-criticized re-definition of antisemitism when investigating allegations of antisemitic discrimination on college campuses. The re-definition classifies virtually all criticism of Israel as antisemitic.

OCR gave no public notice of the major policy decision.

The news from OCR was buried in a letter written by Trump’s new head of Civil Rights, Kenneth Marcus, to the Steve Bannon-aligned Zionist Organization of America (ZOA). The letter informed the ZOA that OCR would reopen a 7-year old complaint against Rutgers University, which OCR had previously dismissed in 2014 after a years-long investigation.

Marcus wrote that the controversial antisemitism definition “is widely used by government agencies, including the US Department of State, and is used by OCR as well.”

Prior to his appointment at OCR, Marcus drove a campaign by Israel-aligned groups to codify the same re-definition he has now put in place at OCR without public notice. Marcus lobbied federal and state governments to adopt legislation to impose this redefinition on the Department of Education and state agencies. The legislation was strongly contested by civil liberties groups for its clear encroachment on political speech. It failed to pass the US House of Representatives in 2016 but was reintroduced this year and is currently pending in Congress. The redefinition has also been rejected by the University of California and by its original author as inappropriate in a university setting. 

As head of the Brandeis Center, Marcus and the ZOA, both together and separately, filed several complaints similar to the failed complaint against Rutgers, which Marcus is now reopening. All were either dismissed, or not investigated by the DOE.

Marcus’s efforts come three months after the U.S. Senate narrowly confirmed him to head OCR on a party-line vote, with all Democrats voting against his confirmation. Marcus was widely criticized for his anti-free speech and anti-civil rights positions, including opposition to affirmative action policies, his criticism of expanding civil rights protections to LGBTQ people, and his hostile position towards survivors of sexual assault

In recent weeks, Marcus has proven his commitment to these rightwing positions, withdrawing Obama-era guidelines for universities to consider race as one of many factors in admissions and delaying implementation of protections for students of color disproportionately channeled into special education programs.  He recently stated, “We are law enforcement officials, not advocates or social-justice people.”

“Marcus is sending a clear signal that attacking free speech for Palestinian rights is at the top of his agenda at OCR,” said Dima Khalidi, Director of Palestine Legal. “This is a perverse use of government resources. Especially at a time when white supremacist attacks are rampant on college campuses, we need to use the meager resources we have to protect – not attack - civil rights.”

For Marcus to make such a controversial and corrosive policy decision with no public notice raises serious questions about open government and the influence of lobbying groups.

The Rutgers case stems from a 2011 event, sponsored by student groups that shared stories of Holocaust and Nakba survivors. Dozens of pro-Israel protesters showed up to the event, some physically assaulting event volunteers and calling student organizers racist slurs such as “towelheads” and “suicide bombers.” The ZOA filed a Title VI complaint based on factually inaccurate allegations that organizers levied a fee at the last moment only on Jewish attendees, an allegation that investigators could not substantiate after a years-long investigation. See the detailed case summary in our 2015 report, The Palestine Exception to Free Speech: A Movement Under Attack in the US, here.

Media Coverage

New York Times, Erica Green, "Education Dept. Reopens Rutgers Case Charging Discrimination Against Jewish Students

The Forward, Aiden Pink, “Trump Education Dept. Adopts Controversial New Definition Of Anti-Semitism

North Jersey, Hannan Adely, "U.S. Department of Education reopens case against Rutgers alleging anti-Semitism

Jezebel, Esther Wang, "Education Department Move Could Suppress Critiques of Israel

Politico, Michael Stratford, “Trump administration adopts new definition of anti-Semitism in schools

Washington Post, Nick Anderson, "Feds reopen probe of alleged anti-Semitic incident at Rutgers"

Electronic Intifada, Nora Barrows-Friedman, "Trump administration moves to curb campus criticism of Israel"

Inside Higher Ed, Andrew Kreighbaum, "Limiting the Debate