OCR’s use of overly broad anti-Semitism definition threatens student and faculty speech

By September 14, 2018

Earlier this week, The New York Times reported that the Department of Education’s Office for Civil Rights had reopened a 2011 case at Rutgers University regarding alleged discrimination against Jewish students at a public event. In an Aug. 27 letter to the Zionist Organization of America (ZOA), the organization that had filed the complaint against Rutgers, OCR said it would now evaluate the complaint using a “working definition” of anti-Semitism used by the U.S. Department of State. FIRE has repeatedly expressed serious concerns about the threat to First Amendment rights presented by the use of the definition in enforcing federal anti-discrimination laws.

The allegations involve a 2011 event at Rutgers, hosted by a number of religious and political campus groups, which was “intended to shed light on Jewish suffering during the Holocaust and Palestinian suffering in the 1948 ethnic cleansing known as ‘Nakba’ in order to show that all suffering affect[s] all humans.”

As FIRE reported back in 2011, Jewish students accused the event organizers of trying to bar students wearing yarmulkes from attending; cordoning off Israel supporters to separate lines away from other attendees; and charging “Zionists” fees to enter the free event. The organizers denied that they violated any student’s civil rights, and in 2014, OCR found that there was insufficient evidence of violations of Title VI of the Civil Rights Act of 1964 to support the allegations of discrimination against Jewish students. On Sept. 29, 2014, the ZOA appealed OCR’s ruling, asking OCR to reexamine its determination.

In its letter to ZOA sent last month nearly four years after the ZOA’s appeal, OCR vacated its earlier finding that “there was not any evidence to corroborate that Jewish students were treated differently” at the event. OCR’s reversal letter also announced that OCR, in determining whether anti-Semitic discrimination has occurred, “rel[ies] where appropriate upon widely established definitions of anti-Semitism” — specifically, the State Department’s anti-Semitism standard, which has been the subject of intense debate among activists, civil liberties organizations, and Congress.

OCR has not previously indicated that it utilizes this standard, which defines anti-Semitism as: “[A] certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

The vagueness inherent in this definition poses significant problems for free expression on campus, as many criticisms of the Jewish faith or of Israel would fall within its ambit. Applying this definition as a viewpoint-based restriction on expression is incompatible with the First Amendment, especially considering that the definition’s examples of anti-Semitism include clearly protected political expression such as “claiming that the state of Israel is a racist endeavor” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”

As FIRE’s Robert Shibley wrote in 2011, it is difficult to determine whether unlawful discrimination occurred at Rutgers because of the competing and unresolved factual narratives of the event. However, our worry here is the same as our previously expressed concerns about applying a definition that labels core political speech, such as criticism of Israeli policy, to be a potential component of punishable discrimination under Title VI. We echo the concerns of First Amendment experts like Eugene Volokh, Erwin Chemerinsky, Howard Gillman, and a range of civil liberties organizations including the American Civil Liberties Union, all of whom have highlighted the threat to free expression on campus posed by using this definition in this way. Indeed, the lead author of the State Department’s definition, Kenneth Stern, recognizes its grave potential for censorship, writing in The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus.”

After OCR’s Aug. 27 letter resulted in criticism, the Department of Education provided a statement to media outlets:

The Department has not adopted any formal definition of anti-Semitism. Although OCR’s jurisdiction does not extend to religious discrimination, OCR does aggressively enforce Title VI, which prohibits discrimination on the basis of race, ethnicity or national origin. Secretary DeVos has made clear that OCR will look at the specific facts of each case and make determinations accordingly. The facts in this case, many of which were disregarded by the previous administration, are troubling.  Discrimination motivated by anti-Semitism may be prohibited under Title VI. As stated in the letter, OCR, where appropriate, will make that determination on a case-by-case basis.

We are glad to hear this from the Department. However, the Department must immediately clarify that it will not use this definition of anti-Semitism in determining whether Title VI has been violated. Allowing any ambiguity regarding the applicable standard to remain will chill speech at campuses nationwide and will result in increased pressure on institutions to aggressively investigate and punish protected expression.

FIRE condemns in the strongest possible terms any unlawful discrimination against Jewish students, and we have made abundantly clear that discrimination based on race, color, religion, or national origin has no place on a college campus. However, government efforts to combat anti-Semitism — or any other form of unlawful harassment or discrimination — must be conducted in a manner consistent with the First Amendment, or else they run the risk of repressing the very voices federal anti-discrimination laws seek to protect. OCR need not and may not compromise students’ expressive freedom in order to do the necessary work of protecting our civil rights.

Schools: Rutgers University – New Brunswick