Kenneth Marcus has written what are in effect two books, one of them distinctly odd. The first book is the story of Marcus’s efforts over a number of years to have Title VI of the Civil Rights Act of 1964 reinterpreted to cover the harassment and ill–treatment of Jewish students, deemed necessary because of the widespread support, among leftist campus activists and Middle Eastern students, of the Palestinian cause. Title VI prohibits discrimination—and can lead to the withholding of federal funds—on grounds of race and national origin. But religion, which is not a permissible basis for discrimination in the other parts of the Civil Rights Act, is not included in the language of Title VI as a prohibited basis of discrimination. The reason apparently was that so many schools and institutions of higher education have religious connections and affiliations that a loophole was provided for them.
The Office of Civil Rights (OCR) of the Department of Education, a large operation that enforces Title VI, had taken the position that Jews are neither a “race” nor definable as a group on the basis of “national origin,” and thus discrimination against Jews (although not necessarily Israelis) was not covered by the Civil Rights Act. Marcus, in his role as Delegated Assistant Secretary of Education for Civil Rights, the highest ranking official in the OCR during the first administration of President George W. Bush, was vexed by this situation. There were many reports from campuses of activist attacks on Israeli policy that skirted close to anti-Semitism. He decided that discrimination against Jews was indeed covered by the Civil Rights Act, on the basis of certain Supreme Court rulings.
His argument is this. Jews were considered a race at the time of the post-Civil War Civil Rights Act of 1866, and the Fourteenth Amendment, which was passed to provide support for it; and since the Civil Rights Act of 1964 was intended to make the previous act and amendment effective, Jews could be a race for purposes of civil rights enforcement, too. Even if this caused discomfort in our post-Hitler era, the complaints of discrimination should nonetheless be covered by OCR.
Marcus (who now holds the Lillie and Nathan Ackerman Chair in Equality and Justice in America at Baruch College) so advised twenty thousand heads of institutions of education in a letter of guidance in 2004, which he thought established a new and clear policy for OCR. He then left the OCR to become Staff Director of the U.S. Commission on Civil Rights. (Such appointments in the Bush presidency almost certainly meant that he is or was a Republican, or was thought to be one.) In his new role he pushed to have the Commission on Civil Rights examine the campus situation, and a CCR report in 2006 charged that that anti-Semitism had become a “serious” problem on many campuses. It “directed” OCR (can the CCR really “direct” government enforcement agencies?) “to enforce Federal civil rights” and in effect to have OCR stand by the policy letter he that had sent out in 2004. One gathers that he also was involved in informing Congressmen that OCR was not properly responding to complaints of Jewish harassment and institutional policies that do not challenge an atmosphere of discomfort for Jews.
The oddity of Marcus’s Book #1, which seems to be the story a complicated bureaucratic struggle not at all easy to follow, is that he has not written a directly personal account, and he is somewhat coy in presenting his own role in first creating the policy, and then pushing the CCR and perhaps Congress to push the OCR, in the hands of his successors, to enforce the policy. His name does not appear in the index, but his crucial role is evident from the text and the footnotes.
The other book in Marcus’s book, much longer, is an extended consideration, from the point of view of American and English law, and of the consciousness of Jews and non-Jews, of the question, just what are the Jews? Only a religion? A race? A group by descent, but not a race? A national group? An ethnic group? And just what is an ethnic group? Here, in Book #2, Marcus covers an enormous literature—I am astonished by how much has been written on this issue—and is very sensible in his conclusions. Jews are clearly a group, whatever the name or category in which we include them, a group with the same meaning as any that might be covered by the “race, creed, color and national origin” mantra of much civil rights legislation, and thus they are entitled to its protection.
But now to return to Book #1 and what makes the bureaucratic struggle interesting: following on the new guidance Marcus had offered entitling Jews to the protection of the OCR, a lawyer for the Zionist Organization of America made a complaint about conditions affecting Jewish students on the campus of the University of California at Irvine. The activity there against Israeli policy in the occupied territory and on the Palestinian issue was particularly intense. Susan Tuchman, the lawyer for the ZOA, charged Irvine “with fostering a hostile environment for Jewish students in violation of the prohibition on racial and national origin discrimination … in Title VI ... Tuchman detailed that Jewish students had been physically and verbally harassed, threatened, shoved and targeted by rock throwing.” Swastikas defaced Jewish property and a Jewish holocaust memorial was vandalized. “Campus speakers were providing lectures that some Jewish students considered to be anti-Israeli, anti-Jewish, or both.” Many outrageous quotations are given. Whether these were given in classes, or on platforms provided by student or other organizations, is not clear. Irvine’s administration was, Tuchman argued, “silent and passive” in the face of these various incidents.
The complaint was made to the San Francisco office of the OCR, whose regional director, Arthur Zeidman, was, oddity of oddities, “an adherent to the Lubavitcher school of ultra-Orthodox Judaism … [who] had just left military service.” He was also, surprisingly (or perhaps not, if one considers the Lubavitcher willingness to live among non-Jews) “insensitive to the problem of anti-Semitism.” He and his office’s top lawyer, also Jewish, were inclined to dismiss the case for lack of jurisdiction. They asked for guidance from Washington, where Marcus was still “on the lookout for cases of this nature.” I assume he urged them to proceed (there is no clear statement in the book that he did).
The course of the case is difficult to follow in the book, which then moves into the larger discussion of the character of the Jewish group in law and perception and consciousness. (It can be followed more clearly in an article by Marcus that appeared in Commentary last September.) The upshot was, Marcus charges in the book, that “although OCR’s career staff determined that a hostile environment had formed at Irvine, they were overruled by political appointees within the second George W. Bush administration.” Does this suggest that Marcus was not a political appointee?
But this is not the end of the case. In the last few pages we learn that Arthur Zeidman “has sued the OCR for employment discrimination, arguing that he was adversely treated as a Jew because of the manner in which he attempted to pursue the case.” He is supported in his charge by the (Jewish) Regional Counsel. His charge was against his superiors, Deputy Assistant Secretary David Black and Assistant Secretary Stephanie Monroe, who one presumes are not Jews, but the case is now inherited by their Obama-appointed successor, Russlynn Ali.
Despite the full account of the case up to the time of publication, there are aspects of the situation that are left curiously unexplored. Just what was the situation at the Irvine campus? Who was sponsoring the objectionable lectures and speeches? Student organizations, university bodies, faculty? Who was paying for them? Did Jewish students who had been harassed and attacked identify those who had harassed and attacked them, and what action did the university take in response, if any? What should the OCR have done if it had accepted the conclusion of the Regional Office of OCR that there was an uncomfortable situation for Jews as a result of anti-Israeli activities on the Irvine campus? And what good would it have done if the campus administration had undertaken whatever action the OCR proposed?
One feels the need, in sum, for much more detail. One Jewish student did write to the chancellor that she felt “scared to walk around personally as a Jewish person … terrified for anyone to find out … [felt] threatened that if students knew that I am Jewish and support a Jewish state, I would be attacked physically.” The response was to recommend the student seek professional counseling at the university’s counseling center.
If this student’s feelings were common among Jewish students, the situation was certainly bad. But were such feelings common? Many Jewish students on campuses are not involved in the defense of Israel, and some support its critics, even its strident critics. Most students are not politically active on any campus, and the active ones have only limited effects on its atmosphere. And how hard is it to ignore whatever political activities exist, including anti-Israeli ones?
What the OCR might have recommended or required of the Irvine administration if it had agreed that such was the situation is also not clear. In some similar situations affecting black students—a denigrating picture on their door, or harassing e-mails in their computers—the heads of the affected institutions have issued strong denunciations of such actions, and held campus-wide meetings to condemn them. Should Irvine have been required to do something of the sort? Then we might have had Book # 3: if one finds such a situation, what is the institution to do? There is no question that Marcus has nailed the case, certainly to my satisfaction, that Jews are covered under Title VI of the Civil Rights Act. What is more doubtful was whether what was happening at Irvine and at other campuses was discrimination against Jews, if simply and directly understood, and what should or could have been done about it.
Nathan Glazer is professor emeritus of sociology at Harvard University. His most recent book, on modernist architecture, is From a Cause to a Style.