[Marxism] Education Dept. Reopens Rutgers Case Charging Discrimination Against Jewish Students

Louis Proyect lnp3 at panix.com
Wed Sep 12 07:03:28 MDT 2018

NY Times, Sept. 12, 2018
Education Dept. Reopens Rutgers Case Charging Discrimination Against 
Jewish Students
By Erica L. Green

The new head of civil rights at the Education Department has reopened a 
seven-year-old case brought by a Zionist group against Rutgers 
University, saying the Obama administration, in closing the case, 
ignored evidence that suggested the school allowed a hostile environment 
for Jewish students.

The move by Kenneth L. Marcus, the assistant secretary of education for 
civil rights and a longtime opponent of Palestinian rights causes, 
signaled a significant policy shift on civil rights enforcement — and 
injected federal authority in the contentious fights over Israel that 
have divided campuses across the country. It also put the weight of the 
federal government behind a definition of anti-Semitism that targets 
opponents of Zionism, and it explicitly defines Judaism as not only a 
religion but also an ethnic origin.

And it comes after the Trump administration moved the American Embassy 
in Israel from Tel Aviv to Jerusalem, moved to cut off aid to the 
Palestinian Authority and announced the closing of the Palestine 
Liberation Organization’s office in Washington.

In a letter to the Zionist Organization of America, obtained by The New 
York Times, Mr. Marcus said he would vacate a 2014 decision by the Obama 
administration and re-examine the conservative Jewish group’s cause not 
as a case of religious freedom but as possible discrimination against an 
ethnic group.

In so doing, the Education Department embraced Judaism as an ethnicity 
and adopted a hotly contested definition of anti-Semitism that included 
“denying the Jewish people the right to self-determination” by, for 
example, “claiming that the existence of a State of Israel is a racist 
endeavor” and “applying double standards by requiring of” Israel “a 
behavior not expected or demanded of any other democratic nation.”

In effect, Arab-American activists say, the government is declaring the 
Palestinian cause anti-Semitic.

Liz Hill, a spokeswoman for the Education Department, said that although 
the Office for Civil Rights does not have jurisdiction over religious 
discrimination, the office “aggressively enforces” civil rights law, 
“which prohibits discrimination on the basis of race, ethnicity or 
national origin.”

Education Secretary Betsy DeVos “has made clear that O.C.R. will look at 
the specific facts of each case and make determinations accordingly,” 
Ms. Hill said. “The facts in this case, many of which were disregarded 
by the previous administration, are troubling.”

A spokeswoman for Rutgers said the university had not received official 
notification from the Education Department yet, but “as always, we would 
certainly cooperate with the Department of Education should they decide 
to review the decision.” The letter is dated Aug. 27 but received no 
public notice.

When the initial complaint was filed in April 2011, the school had been 
trying to address brewing tensions over the B.D.S. movement — which 
advocates boycotting, divesting from and sanctioning Israel — that was 
roiling college campuses.

That month, the school hosted Omar Barghouti, a founding member of the 
Palestinian Campaign for the Academic and Cultural Boycott of Israel, 
and after his speech, in which he called for the university to distance 
itself from Israel, the school issued a statement assuring the college’s 
Hillel group that it would not, according to published reports.

And when the complaint was filed, a spokesman told the New Jersey Jewish 
News that the claims in the complaint by the Zionist Organization of 
America were “contrary to the true values of Rutgers University and are 
not supported by the facts.”

Mr. Marcus, who was confirmed in June, was tapped to lead the Office for 
Civil Rights from his job leading the Louis D. Brandeis Center for Human 
Rights Under Law, a nonprofit advocacy organization that Mr. Marcus used 
to pressure campuses to squelch anti-Israel speech and activities.

The organization advocated revocation of federal funding from Middle 
East studies programs that are said to have an anti-Israel slant, and it 
urged colleges and universities to discipline students who are part of 
the B.D.S. movement.

When Mr. Marcus was nominated, Palestinian and human rights 
organizations protested his confirmation on the grounds that he would 
use his position at the Education Department to further his pro-Israel 
cause, and that first on his list would be pushing to adopt a definition 
anti-Semitism to target schools for civil rights violations. Middle 
Eastern studies programs at universities around the country have braced 
for action from Washington against perceived bias.

“This is exactly what we feared would happen — he has a long track 
record of pressuring universities and government bodies to trample on 
free speech,” said Rahul Saksena, senior staff attorney at Palestine 
Legal, a Palestinian rights group. “You would think that the O.C.R. 
would have their hands full these days, and instead they’re using their 
limited resources” to reopen a case “that the Education Department spent 
years investigating, and had been closed.”

Mr. Marcus conceded that his department did not have the authority to 
weigh in on religious or political disputes. But he made the case that 
the Rutgers case is neither.

“An individual’s pro-Israel viewpoint itself — or, for that matter, any 
viewpoint on the policies of the State of Israel, the 
Israeli-Palestinian conflict or related issues — is not protected by” 
federal civil rights law, he wrote. However, he added, “discrimination 
on the basis of actual or perceived shared ancestry or ethnic 
characteristics — which may include discrimination against Jewish or 
Muslim students — is.”

Mr. Marcus’s decision took current and former investigators at the 
Education Department by surprise, as Ms. DeVos has gone to great lengths 
to limit civil rights enforcement to stringent interpretations of 
federal law.

But in a previous stint leading the Office for Civil Rights, Mr. Marcus 
indicated that he was willing to interpret the law more broadly. In 
2004, he issued a guidance letter telling schools that the department 
would include in its enforcement “national origin discrimination, 
regardless of whether the groups targeted for discrimination also 
exhibit religious characteristics.”

“Thus, for example, O.C.R. aggressively investigates alleged race or 
ethnic harassment against Arab Muslim, Sikh and Jewish students,” the 
letter continued.

The Zionist Organization of America called the reopening of the case a 
“groundbreaking decision.”

In a statement, the organization’s national president, Morton A. Klein, 
and Susan B. Tuchman, the director of its Center for Law and Justice, 
emphasized that Mr. Marcus’s notification that the Education Department 
had adopted the expansive definition of anti-Semitism was particularly 

“It took a leader like Kenneth Marcus to finally decide the ZOA’s appeal 
and to also make it clear that O.C.R. will finally be using a definition 
of anti-Semitism that makes sense and that reflects how anti-Semitism is 
so frequently expressed today, particularly on our college campuses,” 
they wrote. “Hate groups like Students for Justice in Palestine try to 
convince others that their attacks on Zionism and Israel are legitimate 
political discourse. But as the State Department definition of 
anti-Semitism recognizes, these attacks are often a mask for Jew-hatred, 
plain and simple.”

Mr. Marcus informed ZOA that he would specifically be reviewing one of 
the three allegations made in its 2011 complaint, which said that a 
liberal, pro-Palestinian group, Belief Awareness Knowledge and Action, 
imposed an admissions fee on Jewish and pro-Israeli students who 
attended an event called “Never Again for Anyone.” The Zionist group 
said an email proved that an organizer wrote that the group began 
charging only after it observed “150 Zionists” who “just showed up.”

But according to an account from Palestine Legal, fees were charged for 
the event only after Rutgers Hillel, a local synagogue, and other Jewish 
groups sent alerts to mobilize their members to protest the event. The 
group said that pro-Israel protesters physically assaulted event 
volunteers and called them “towel heads” and “suicide bombers,” and that 
a Jewish volunteer was called a “traitor.”

The organizers — who were not students — said they were forced to charge 
a last-minute fee to cover costs mandated by the university, including 
an increased price to rent the space and to cover security to manage the 

In dismissing the case in 2014, the Education Department determined that 
the host of the event advertised a $5 to $20 donation, and began 
charging last-minute fees because the event drew more attendees than 
anticipated, including many nonstudents.

In their findings letter, department investigators wrote that they had 
discovered no evidence that Jewish and non-Jewish attendees were 
selectively charged fees. They said the email that said “150 Zionists” 
had shown up — which was presented as evidence of the intended 
discrimination — was heavily redacted, and they could not verify whether 
that information was credible. The department said it determined from 
witness statements that all attendees were required to pay for the event 
if they were not a volunteer. The department also found that Rutgers 
promptly investigated complaints of bias filed by students.

“Regardless of whether or not it was appropriate to begin charging the 
admissions fee, O.C.R. did not find sufficient evidence to substantiate 
that any individuals were treated differently, based on national origin, 
with respect to imposition of the admissions fee,” the findings letter said.

The Zionist group appealed the finding.

In his letter, Mr. Marcus wrote that the email was sufficient enough for 
further investigation.

“In other words, the visual perception of the presence of ‘150 Zionists’ 
referenced in the email could have been rooted in a perception of Jewish 
ancestry or ethnic characteristics common to the group,” Mr. Marcus 
wrote to the group. “In cases such as this, it is important to determine 
whether terms such as ‘Zionist’ are actually code for ‘Jewish.’”

Mr. Marcus’s confirmation was opposed by more than 60 civil rights 
organizations who expressed concern that his view of civil rights, and 
whose should take priority, was too narrow.

Mr. Marcus supports scaled-back protections for transgender students and 
rejects that policies could have “disparate impact” on racial and other 
groups, and his organization has filed amicus briefs challenging 
affirmative action.

“Mr. Marcus expressed significant concern for a student who might be 
subject to harassment based on religion, but expressed no similar 
concern about a student’s right to be free from harassment based on 
their sexual orientation or gender identity,” the organizations, part of 
the Leadership Conference on Civil and Human Rights, wrote of his 
nomination. “Mr. Marcus has sought to use the complaint process to chill 
a particular political point of view, rather than address unlawful 

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