WASHINGTON — An executive order signed Wednesday that extends civil rights protection to Jews is likely to strengthen the hand of President Trump’s Education Department, where the department’s civil rights chief has been investigating some of the nation’s most elite universities for anti-Jewish bias.
Mr. Trump, at a Hanukkah celebration at the White House, opened the door on a case-by-case basis to essentially defining Judaism as a race or national origin, not just a religion, under the Civil Rights Act. His order also expanded the definition of anti-Semitism to include some anti-Israel sentiments. Both moves had been pushed by Kenneth L. Marcus, the head of the Education Department’s Office for Civil Rights, for years.
“This is our message to universities: if you want to accept the tremendous amount of federal dollars that you get every year, you must reject anti-Semitism, it’s very simple,” Mr. Trump said at the signing ceremony.
Even before the order, Mr. Marcus was already deeming Judaism a “national origin,” like Italian or Polish, to strengthen a campaign against what he sees as rampant anti-Semitism in higher education. At both the University of Pennsylvania and Stanford, Mr. Marcus has opened “national origin” investigations to determine whether qualified applicants were rejected because of their Judaism.
In the University of Pennsylvania case, the rejected applicant claimed he had the “full support of the vice provost in addition to having multiple-generation legacy status,” yet was passed over for a student of a different gender, race and religion.
In separate cases against New York University and the University of North Carolina at Chapel Hill, Mr. Marcus has investigated whether administrators have allowed their campuses to become hostile environments for Jewish students by coddling anti-Israel sentiment. Last year, he reopened a long-closed case brought by a Zionist group against Rutgers University, [ZOA Note: ZOA filed these legal complaints under Title VI against Rutgers and UNC] saying the Obama administration had ignored evidence that the school allowed a hostile environment for Jewish students.
The administration’s efforts come at a time of rising anti-Semitic attacks. An assailant involved in a deadly shooting on Tuesday at a Jersey City, N.J., kosher supermarket was found to have published anti-Semitic posts online, a law enforcement official familiar with the case said on Wednesday. But Mr. Marcus’s approach has prompted criticisms that he is infringing on free speech and the rights of other minority groups while extending civil rights law well beyond its intent.
Those charges will grow louder with Mr. Trump’s executive order and its embrace of an expansive definition of anti-Semitism, one already used by the State Department, that labels as anti-Semitic “denying the Jewish people their right to self-determination,” by, for example, “claiming that the existence of a State of Israel is a racist endeavor.”
“Anti-Zionism is anti-Semitism,” wrote Jared Kushner, a senior White House adviser and the president’s son-in-law, in an Op-Ed article for The New York Times. “The inclusion of this language with contemporary examples gives critical guidance to agencies” enforcing civil rights law.
Jewish groups were largely supportive, with some liberal organizations opposing it. Palestinian rights groups were incensed.
Last month, in a resolution agreement responding to an anti-Semitism complaint, the Education Department required the University of North Carolina at Chapel Hill to revise its anti-discrimination policy to include “anti-Semitic harassment.” It was also required to describe in its policy how such anti-Semitism could manifest itself on campus. The changes have to be approved by Mr. Marcus’s office.
“The Department of Education is effectively strong-arming universities into adopting policies that would chill criticism of the Israeli government’s consistent and well-documented violations of Palestinian rights by falsely conflating it with anti-Semitism,” said Yousef Munayyer, the executive director of the U.S. Campaign for Palestinian Rights.
Also last month, the Office for Civil Rights opened a national-origin discrimination case against New York University that stemmed from an episode last year when pro-Palestinian groups were accused of disrupting a pro-Israel dance party.
“The department is deeply concerned about the rampant rise of anti-Semitism on campuses across this country,” the agency said in a statement on Tuesday.
The new executive order targets schools’ federal funding, mirroring the threat made by Mr. Trump in March when he signed an order protecting the right of conservative speakers to challenge “rigid, far-left ideology” on campuses.
Terry W. Hartle, a senior vice president at the American Council on Education, said the dueling orders concurrently limited and protected certain speech and would cause “enormous confusion” on college campuses.
“It’s hard to imagine how you can do both of these things successfully,” Mr. Hartle said. “Most colleges will err on the side of free speech, and the notion that the Department of Education could come after you for that is sobering.”
The Foundation for Individual Rights in Education, which has been generally supportive of Mr. Trump’s education policies, vowed to “defend students and faculty subjected to censorship as a result of the implementation of the executive order.” The group called on lawmakers to come up with “constitutional alternatives to combat unlawful harassment.”
The issue arises as campuses have become hotbeds of racial and cultural strife. In a 2018 report, the Anti-Defamation League found an 89 percent increase in reported episodes of anti-Semitism on college campuses in one year, as well as a steady rise in white-supremacist propaganda.
The North Carolina case stemmed from an event hosted by U.N.C. and Duke University, titled, “Conflict Over Gaza: People, Politics, and Possibilities,” this past spring that featured a Palestinian rapper, Tamer Nafar, who was accused of spouting anti-Semitic lyrics.
A video of the performance prompted a Republican lawmaker to ask the department to investigate.
“I knew it was going to be anti-Israel, I didn’t know it was going to devolve into anti-Semitism,” said Ami Horowitz, a documentary filmmaker who shot the video.
A report from the Middle East studies program that hosted the event called comments the rapper made before his performance “inappropriate,” but protected by free speech laws.
The department opened civil rights investigations against both universities.
Duke’s inquiry is still pending, but U.N.C. resolved its portion last month. In its agreement with the Office for Civil Rights, the university said it would hold a series of community meetings, conduct anti-Semitism training and make clear in its anti-discrimination policy that Jewish students shared a national origin “on the basis of their actual or perceived shared ancestry or ethnic characteristics.”
The Zionist Organization of America, a group that Mr. Marcus has worked with for years, said the agreement sent “a powerful message to universities and colleges throughout the country that the U.S. government will hold them accountable for allowing campus anti-Semitism, anti-Zionism, and/or the physical or emotional harassment of Jewish students.”
For years, as the head of a Jewish civil rights organization, Mr. Marcus lobbied the department to extend national-origin protections to Jewish students because it does not have jurisdiction over religious discrimination. He unsuccessfully filed several civil rights complaints with the office, and in 2017, he complained that the department was ill equipped to manage anti-Semitism cases. “It has found countless civil rights violations against women and against African-Americans,” he wrote. “But when it comes to anti-Semitism on campus, the agency has been paralyzed.”
Now on the inside, Mr. Marcus has divided the Education Department. Last fall, the department had to walk back Mr. Marcus’s assertion that it was using the State Department’s definition of anti-Semitism to re-examine a seven-year-old case against Rutgers University.
The department said it would determine whether anti-Semitism cases fell under its jurisdiction “on a case-by-case basis.”
Betsy DeVos, the education secretary, has condemned “boycott Israel” activists as “bullies,” and this year, she called the Boycott, Divestment and Sanctions — or B.D.S. — movement “one of the most pernicious threats” on campuses. But she has also prided herself on interpreting existing laws narrowly. The department has rescinded a number of Obama-era guidance documents that relied on flexible interpretations of federal laws, even as Mr. Marcus has asserted a Jewish “national origin” by fiat.
But behind Mr. Marcus’s agenda is the weight of the White House. The anti-Semitism executive order repeatedly refers to Title VI of the Civil Rights Act, which extends protections on the basis of race, color or national origin, then states, “Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.”
Last weekend, Mr. Trump touted the N.Y.U. investigation as proof of his administration’s pro-Israel bona fides. In remarks to the Israeli-American Council National Summit that included a series of anti-Semitic tropes, Mr. Trump invited Adela Cojab, who filed the complaint against N.Y.U., to speak.
“My university failed to protect its Jewish community from ongoing harassment, from attacks on social media, to resolutions on student government, to boycotts, flag burnings, and physical assault,” Ms. Cojab said.
The Office for Civil Rights is investigating an event from last year when pro-Palestinian student groups at N.Y.U. were accused of disrupting a pro-Israel event. The university, whose student population is 13 percent Jewish, condemned the actions and disciplined students responsible.
But the university drew the ire of pro-Israel groups when Students for Justice in Palestine, a student group involved in the disruption described by Ms. Cojab as “an anti-Israel hate group,” was recognized with a President’s Service Award.
The university’s president said he would not have bestowed the honor, which was awarded by a volunteer committee to 150 groups and individuals. The university has publicly repudiated B.D.S. proposals, condemned attacks on pro-Israel groups and rejected calls to close its 10-year-old Tel Aviv campus.
A spokesman for N.Y.U., John Beckman, said the university “disputes any suggestion that it is or has been anything less than highly supportive of or deeply concerned about its Jewish community.”
Aisha Jitan, a senior at U.N.C. at Chapel Hill, said her school’s “spineless” agreement with the department was a “slap in the face” for Palestinian students, like herself, and other minorities. Ms. Jitan serves as a president of the university’s chapter of Students for Justice in Palestine and has taken classes at the Duke-U.N.C. Consortium for Middle East Studies — which the department also investigated this year.
“The exact things that I’m learning to resist — Orientalist and Islamophobic narratives surrounding the Middle East — are the exact narratives that the Department of Education is perpetuating,” Ms. Jitan said.
Mr. Marcus’s “national origin” inquiries have also received sharp pushbacks at Stanford and the University of Pennsylvania.
“We take allegations of discrimination extremely seriously. We have closely reviewed the facts in this matter and found no evidence of discrimination,” said Brad Hayward, a Stanford University spokesman.
Stephen MacCarthy, a spokesman for the University of Pennsylvania, said he would not comment on a specific accusation but said, “We believe our highly selective admissions policies are rigorous and nondiscriminatory.”
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