Anti-Semitism and Racism

Anti-Semitism and RacismKenneth L. Marcus

Is anti-Semitism a form of racism? Given jurisdiction over race and nationalorigin but not religion, the U.S. Department of Education’s Office for Civil Rights (OCR)has had to determine whether harassment of Jewish students constitutes “discrimination because of … race [or] national origin.” under Title VI of the Civil Rights Act of 1964.The stakes are high, since Jewish students receive no OCR protection unless actionstaken against them constitute one of these forms of discrimination. Intuitively, neither “race” nor “national origin” seems to fit the collective self-identification of contemporaryAmerican Jews. Moreover, the very question seems to entrap anyone who would ventureto answer it. This may be the “dilemma of Jewish difference.”

2

To address themistreatment of Jewish students, one must employ the very conceptual categories (

e.g.

,“race”) which have historically created or exacerbated the problem, but refusing to

1

Lillie and Nathan Ackerman Visiting Professor of Equality and Justice in America,Baruch College, The City University of New York; Senior Research Fellow, Institute for Jewish and Community Research; former Staff Director, U.S. Commission on CivilRights (2004-2008).

2

For a discussion of the “dilemma of difference,”

see

Kenneth L. Karst,

Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation

, 43 UCLA

L.

R

EV

. 263, 324-25 (Dec. 1995).Seminar Draft: For discussion purposes only.

2identify group traits may leave vulnerable populations (like Jews) unprotected from theaffects of bigotry.

3

This paper will argue that anti-Semitism can meaningfully be described, for purposes of U.S. civil rights enforcement, as

“discrimination because of …race.”

4

This proposition is defended under each of the four primary methodologies with which areviewing court or administrative agency could fruitfully examine the question. Thesemethodologies may loosely be described as historical, scientific, sociological andsubjective. The degree to which this conclusion has been resisted over the years, both by policymakers and by members of the Jewish community, suggests that the examination of this question has been hindered by certain preconceptions or illusions, which will also beaddressed here, as well as by concerns with what I have called the “dilemma of Jewishdifference.” One of the four primary methodologies provides an adequate means of resolving the “dilemma of Jewish difference,” and thus of providing a fully satisfactoryanswer to the question presented, and that is the subjective approach.

3

Martha Minow develops this argument about the dilemma of difference in

The SupremeCourt, 1986 Term: Foreword: Justice Engendered

, 101 H

ARV

.

L.

R

EV

. 10, 21-12 (Nov.1987).

4

This paper focuses on race, rather than national origin, because the Supreme Court’snational origin jurisdiction has been more restrictive than its jurisprudence of race.

See Espinoza v. Farah Manufacturing Co.

, 414 U.S. 86 (1973) (establishing a narrowconception of “national origin”).

3

In re University of California at Irvine

The question has been given urgency by the extent to which it was recentlyflubbed. The OCR’s administrative resolution last year in the landmark case

In reUniversity of California at Irvine

dismissed widespread and serious anti-Semitism claims brought against that university in part on the grounds that the relevant allegations do notconstitute “national origin” discrimination.

5

Among other deficiencies, OCR’s decisionfailed even to consider well-documented claims that Irvine’s Jewish students facedactionable forms of racial discrimination.In

Irvine

, the Zionist Organization of America alleged that Irvine has fostered ahostile environment for Jewish students, in violation of Title VI of the Civil Rights Act of 1964, which prohibits “discrimination because of … race ... [or] national origin” (but notreligion) in programs or activities that receive federal funds. ZOA alleged that Irvine’sJewish students have been physically and verbally harassed, threatened, and otherwiseabused; that Jewish property has been vandalized; and that a Jewish Holocaust memorialwas destroyed.In a surprising departure from standard agency protocol, OCR flatlyignored ZOA’s allegation that Irvine’s Jewish students faced racialdiscrimination. OCR reviewed allegations of national origin discrimination only

5

OCR Case No. 09-05-2013. This case is discussed at length in Kenneth L. Marcus,

Jurisprudence of the New Anti-Semitism

, Wake Forest L. Rev. (forthcoming 2009).

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