Kenneth L. Marcus's "Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964"

Kenneth L. Marcus, staff director of the US Commission on Civil Rights, has forwarded two articles that he has recently written. The first, "Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964", which appears in the February 2007 issue of the William and Mary Bill of Rights Journal(pp. 837-891, published by the students of the William and Mary Law School) provides a review of recent literature documenting the new anti-Semitism on college campuses. In the last millenium, anti-Semitism was associated with European conservatism, the Junkers and romantic intellectuals like Fichte. More recently in America and Europe, the left, which carries on the traditions of German romanticism, is most closely associated with virulent strains of anti-Semitism.

Recently, Professor John W. Epperson of Simpson College sent me an e-mail questioning the existence of campus anti-Semitism and requesting documentation of it. Marcus's essay provides several recent sources and offers case studies of incidents at San Francisco State University, Columbia University, and the University of California at Irvine. Marcus notes that:

"The Anti-Defamation League documented nearly 100 anti-Semitic incidents on American college campuses in 2005 alone...most incidents are probably not reported to the ADL." I know this to be true because I was subjected to a degree of anti-Semitic harassment at Clarkson University in 1991. I was also subjected to inquiry as to whether I was Jewish at a job interview at the business school of New Jersey's William Paterson College in 1990. I never complained about either incident. The dean at William Paterson College subsequently changed jobs, moving to the business school at CW Post College on Long Island. I learned that in the mid 1990s a professor at the CW Post campus who had been denied tenure under this dean filed a law suit against CW Post under Title VII of the Civil Rights Act, claiming disparate treatment because of religion (while Title VI of the 1964 Civil Rights Act does not permit religious claims, Title VII, which concerns employment, does). Thus, there were at least two unrelated incidents but only one complaint regarding this dean.

Marcus notes that the Department of Justice's Office of Civil Rights began pursuing anti-Semitism complaints in 2004 as part of a policy concerning Sikh, Muslim and Jewish students involving discrimination that involves a combination of ethnic and religious traits. In Marcus's fall 2006 essay in the Nevada Law Journal (p. 171-181) he argues for legislative language that would prohibit religious discrimination. But Marcus also argues that groups, like Muslims, Jews and Sikhs, that combine religious and ethnic characteristics can likely sue under Title VI because of their ethnic (but not religious) traits.

When the Zionist Organization of America filed a complaint concerning the anti-Semitic incident at UC Irvine that Marcus documents, UC Irvine argued publicly that "Title VI does not apply to allegations of anti-Semitism" based on anthropological evolution of the definition of race. However, the courts have not supported this argument. Moreover, in 2006, the US Commission on Civil Rights, of which Marcus is the staff director, found that anti-Semitic campus incidents may constitute a hostile environment in violation of Title VI of the Civil Rights Act, although the ambiguity has increased since then.

Marcus argues that Title VI is meant to ensure that federal funds are spent in accordance with the Constitution's Fourteenth Amendment and the Civil Rights Act of 1866, which holds that:

"citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding."

Marcus argues that the 1866 Civil Rights Act has been interpreted to include ethnic discrimination and since the Fourteenth Amendment was passed to provide a basis for the 1866 Act, the Fourteenth Amendment ought to be construed to contemplate ethnic discrimination. In Al-Khazraji v. St. Francis College an Iraqi professor argued that he had been discriminated against racially under the Civil Rights Act of 1866. Based on a historical review, the Supreme Court determined that ancestry or ethnic characteristics are included in the definition of race. Since the 1866 Act contemplates anti-Semitism, argues Marcus, the Fourteenth Amendment does as well. Moreover, argues Marcus, the 1964 Civil Rights Act is based on re-conceptualization of the 1866 Act, so Title VI of the 1964 Act ought to include protections against anti-Semitism and other forms of ethnic discrimination, such as anti-Muslim or Sikh.

As Marcus points out:

"The primary congressional intent in stripping religious discrimination from Title VI appears to have been concern over the ability of denominational institutions to discriminate in favor of co-religionists in academic admissions, choir and employment."

However, there are neat ways around this problem. Thus, for example, colleges like Wheaton College that have a doctrinal requirement for admission ought not be affected by elimination of religious discrimination.

Moreover, during the Civil Rights Act hearings in the 1960s, Rabbi Irwin Blank, Chairman of the Commission on Social Action, Synagogue Council of America, testified that a prohibition on anti-Semitic discrimination was not needed in 1964. Yet, Marcus points out that the Civil Rights Act includes religion in its prohibitions on discrimination in 15 places but not in Title VI.

Marcus argues that Congress's goal was to provide an enforcement mechanism for the 1866 Act and similar Reconstruction era legislation. Religious discrimination is, in Marcus's view, a bit of unfinished business from the Civil Rights Act of 1964.

In Davis v. Monroe County Board of Education the Supreme Court held that a single or isolated incident does not constitute harassment. Rather, there needs to be severe, pervasive and persistent harassing conduct so as to interfere with a student's education before the courts will interpret an action as constituting a hostile environment. Thus, if ethnic harassment (to include anti-Semitism) reduces the ability of one student to learn, then it consitutes harssment as long as the university is on notice of the problem and has failed to take steps to remedy it.

Kenneth Marcus has outlined the ongoing problem of left-wing anti-Semitism in American universities; provided case study examples; cited additional sources; and provided a cogent legal analysis, to include recommendations on how to handle the problem. His work is exemplary.