By Kenneth L. Marcus
One day last March Jessica Felber, then 20, a Jewish undergraduate at the University of California at Berkeley, was standing on her campus, holding a placard bearing the words: "Israel Wants Peace." At that moment, Husam Zakaria, a Berkeley student leader of Students for Justice in Palestine, reportedly rammed Felber from behind so hard with a loaded shopping cart that she had to be taken to the university's urgent medical care facility. This violent episode has become sadly emblematic of a wave of anti-Israel and anti-Semitic incidents that have rippled across the country, nowhere more so than in the "Golden State," which has become an epicenter for the New Anti-Semitism in America. What makes this case different is that Felber fought back, charging this month in a federal lawsuit that UC Berkeley has ignored mounting evidence of anti-Jewish animus and should be held liable for the injuries she suffered. Her suit also contends that "physical intimidation and violence were frequently employed as a tactic by SJP and other campus groups in an effort to silence students on campus who support Israel".
Sixty miles or so south of Berkeley along the Pacific coast, University of California Santa Cruz lecturer Tammi Rossman-Benjamin makes a similar case against her own employer. For several years, Rossman-Benjamin has spoken out against anti-Semitism and anti-Israelism at the University of California, but she insists that the problem is not limited to a few rogue students: "Professors, academic departments and residential colleges at UCSC promote and encourage anti-Israel, anti-Zionist and anti-Jewish views and behavior," she insists, "much of which is based on either misleading information or outright falsehood." Rossman-Benjamin describes an atmosphere at Santa Cruz in which taxpayer-supported, university-sponsored discourse that "demonizes Israel, compares contemporary Israeli policy to that of the Nazis, calls for the dismantling of the Jewish State, and holds Israel to an impossible double standard - crosses the line into anti-Semitism..." Like Felber, Rossman-Benjamin is fighting back. The Santa Cruz whistle-blower filed a civil rights action with the U.S. Department of Education's powerful Office for Civil Rights, arguing that UCSC has created a hostile environment for Jewish students. Last week, OCR sent a powerful signal to academia when it informed Rossman-Benjamin that it is formally opening an investigation of her claims.
The Jessica Felber and Tammi Rossman-Benjamin stories are just the tip of the iceberg. Over the last decade - since 9/11 and the start of the Second Intifada - there has been a persistent drumbeat of allegations by students and professors at many university campuses across the country. It is true that most Jewish students will not face these problems, particularly if they avoid visibly associating themselves with the Jewish state or with Jewish institutions. Moreover, the reported incidents are disproportionately concentrated in coastal states and on highly politicized campuses, especially in California. Neverthless, problems are continually arising even on campuses like Indiana University which do not seem to fit the profile. In its widely read 2006 report on "Campus Anti-Semitism," the U.S. Commission on Civil Rights observed that anti-Semitism had once again become a "serious problem" at many post-secondary institutions nation-wide. In numerous cases, Jewish and Israeli students, particularly if they are outspoken supporters of Israel, have been physically accosted or confronted with a mix of classic anti-Jewish stereotypes and "progressive" anti-Israel defamations. While it is difficult to quantify the extent of the problem - in part because of the dismal state of reporting on this issue - there is much support for the conclusion that Gary Tobin and Aryeh Weinberg reached in their book, The Uncivil University; i.e.,anti-Semitism has now become systemic throughout American higher education, even on the quieter campuses. Since 2006, the problem has only gotten worse, as old-fashioned bias has entered into the university-centered international campaign to delegitimize the Jewish State through boycotts, divestment and sanctions.
Interestingly, this problem does not reflect a broad-based resurgence of anti-Semitic attitudes on college campuses, nor does it even suggest a widespread collegiate rejection of Israel in favor of the Palestinian cause. Jewish students have never been more highly regarded by their peers and are now more favorably viewed than nearly any other religious group. Israel also remains relatively popular on many campuses, although its favorability appears to be diminishing. The problem is that a small minority of anti-Israel and perhaps anti-Semitic academics have gained disproportionate influence on many campuses. This relatively small group has been the source of the bulk of the problems facing Jewish students. The means by which they have done so is the subject of a study which the Institute for Jewish & Community Research is now in the process of completing.
Until very recently, too little was done to address this problem. University leaders, with only a few conspicuous exceptions, have largely been silent and passive in the face of mounting hate and bias. In many cases, administrators are uncomfortable dealing with a bigotry which is associated with the political left and which is often espoused by Arab or Muslim minority students. University officials are clearly more comfortable speaking out against anti-black or anti-gay bias, especially when it is associated with white racists or right-wing groups. Since the new anti-Semitism is entwined with progressive and Muslim anti-Israel rhetoric, it is too closely associated with core university constituencies to be confronted without political danger to risk-averse administrators. It is generally easier to dodge the issue or to hide behind the First Amendment even in cases in which violence or physical intimidation are used. In fairness to the administrators, their job is made even harder when the Jewish community is conflicted, as it often is when it comes to Israel or when progressive politics conflict with the interests of Jewish students.
Felber and Rossman-Benjamin stand apart because they are taking a fight-back strategy. This represents an important departure for a community which has often been divided between accomodationist and defensive positions. The former camp within the Jewish community has tended to deny or minimize anti-Semitism, to shrink from conflict or controversy, and to seek ways to compromise with or accommodate their attackers. The latter camp has tended to defend Israel, arguing with increasing frustration that Israel is not guilty of the outrageous charges that are lodged against it. Factual defenses are invariably futile against an animus which is not factually based. The fight-back strategy, by contrast, is to engage the anti-Israel and anti-Semitic belligerents vigorously but non-defensively. As Harvard University professor Ruth Wisse once wisely urged, “Never defend! Never defend! Never defend!” Felber and Rossman-Benjamin are game-changers precisely because their actions have equally rejected both denial and defensiveness.
Rossman-Benjamin’s case is notable because it is bringing accountability not only to the university but also to the federal government. She filed her case with the Office for Civil Rights arguing that Santa Cruz violated Title VI of the Civil Rights Act of 1964. That’s the same statute that bars racial segregation in the public schools, but it applies more broadly to racial and ethnic discrimination in federally funded programs. This is an interesting strategy, because until recently OCR refused to apply title VI against anti-Semitism. In 2004, when I headed OCR during the George W. Bush administration, we established a new policy under which many forms of anti-Semitism would be addressed as ethnic discrimination.
It is important to understand that this approach does not require (or even permit) universities to censor or regulate speech which is protected under the First Amendment. As OCR had announced not long before the 2004 policy guidance, OCR policies should never be interpreted in a manner which conflicts with constitutional protections for speech and expressive conduct. In some limited circumstances, as where an imminent threat of lawless activity is posed, public institutions can regulate otherwise protected speech activities. In other situations, if a hostile environment is created by protected speech, the institution must ameliorate the environment without interfering with the speaker’s legal prerogatives. In those cases where institutions are constitutionally barred from penalizing the harasser, they must nonetheless effectively address the situation. There are countless actions which the university could take, such as issuing formal statements condemning the discriminatory conduct, developing educational resources to demonstrate the irrationality of the biased statements, and providing counseling for students who are adversely effected.
This approach proved controversial with my successors and was quietly discontinued between roughly 2005 and 2010. OCR officials were understandably squeamish about taking any action that seemed to treat Jews as a separate race or nation, given the genocidal consequences which had followed from that thinking during the prior century. This was, however, a misunderstanding of the applicable law. Under the Supreme Court’s current approach to interpreting racial and ethnic categories, the question is not whether Jews are a distinct racial or ethnic category in contemporary terms but whether they bear the characteristics which the Equal Protection Clause was established to protect from discrimination. During that period, OCR dismissed the high-profile investigation of the University of California at Irvine which had been opened at my direction in 2004. In October 2010, after a lengthy campaign by the Institute for Jewish & Community Research and other organizations, OCR capitulated and agreed that it would investigate anti-Jewish discrimination just as it accepts cases brought by other minorities. The question now is whether the Obama administration will enforce the policy that it has issued even in cases where the perpetrators are associated more with the left than with the right.