Education Dept.

Reopens Rutgers Case

Charging Discrimination Against
Jewish Students
Kenneth L.
Marcus, the
Education
Department
official who
reopened the
case against
Rutgers, is a
longtime
opponent of
Palestinian
rights causes.
Credit: Susan
Walsh/Associated
Press

By Erica L. Green
Sept. 11, 2018

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
noteworthy.

“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 protests.

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 discrimination.”

A version of this article appears in print on Sept. 12, 2018, on Page A1 of the New York edition with the headline: U.S. Revives
Rutgers Bias Case In New Tack on Anti-Semitism.