Trump administration adopts new definition of anti-Semitism in schools

The Trump administration is changing how the Education Department investigates allegations of discrimination against Jewish students, backing an approach that is favored by pro-Israel groups but that critics worry will stifle free speech on campus.

The policy change was outlined in a letter last month by Kenneth Marcus, who leads the department’s Office for Civil Rights, in which he re-opened a 2011 investigation into Rutgers University in connection with alleged discrimination against Jewish students. The letter was obtained by POLITICO.

Marcus wrote in the letter that the Education Department, in its investigations into discrimination, would adopt the “working definition” of anti-Semitism that is “widely used by governmental agencies” including the State Department.

That definition includes examples in which demonizing or delegitimizing Israel, or holding it to a double standard not expected of other democratic nations, are deemed anti-Semitic.

That meant the Office for Civil Rights for the first time was adopting a definition of anti-Semitism that some Jewish activists have long sought as a tool to curb discrimination on campuses. But some civil liberties organizations and advocates for Palestinian rights believe that the definition is so broad that it would label criticism of Israel as anti-Semitic.

An Education Department spokeswoman did not respond to a request for comment.

Marcus’ letter re-opening the Rutgers case, which the Obama administration closed in 2014 citing insufficient evidence of discrimination, says that department will now reevaluate the evidence “in light of the definition of anti-Semitism.”

Investigators will seek to determine, Marcus wrote, “whether a hostile environment on the basis of national origin or race existed at the University for students of actual or perceived Jewish ancestry or ethnic characteristics.”

The adoption of the anti-Semitism definition at the Education Department, headed by Secretary Betsy DeVos, comes as Congress has debated the issue over the past several years.

In 2016, the Senate overwhelmingly passed bipartisan legislation that would have forced the department to use the State Department definition in evaluating discrimination complaints. But the bill hit a snag in the House over concerns that it could interfere with students’ free speech rights.

The House Judiciary Committee held a hearing on the bill earlier this year, but the legislation so far hasn’t gone anywhere in this Congress.

Several civil liberties and free speech groups — including the American Civil Liberties Union, the Foundation for Individual Rights in Education, and PEN America — have opposed the legislation. They argue that the definition of anti-Semitism is too broad and would threaten political speech, such as criticism of Israel policy, on college campuses.

“It’s certainly something that we feared would happen,” said Dima Khalidi, director of Palestine Legal, adding that the new definition “opens the door to equate any criticism of Israel with anti-Semitism.”

Khalidi also criticized the Education Department for adopting the definition “without any process or public input.”

Several pro-Israel groups, meanwhile, including the American Jewish Committee, praised the Trump administration’s move. The Zionist Organization of America, which filed the original complaint against Rutgers and appealed, praised the Education Department’s “landmark” decision to adopt the definition.

“Hate groups like Students for Justice in Palestine try to convince others that their attacks on Zionism and Israel are legitimate political discourse,” two of the group’s leaders said in a statement. “But as the State Department definition of anti-Semitism recognizes, these attacks are often a mask for Jew-hatred, plain and simple.”

The policy change has long been a priority for Marcus, who was confirmed as the head of the Office for Civil Rights in June. He previously was a staunch proponent of adopting a definition of anti-Semitism as president of the Louis D. Brandeis Center for Human Rights Under Law.

Marcus wrote in a 2017 POLITICO column that the Education Department’s civil rights office was “ill-equipped to recognize anti-Semitism when it sees it” because it lacks a definition for it. “Absent a definition, the office is stymied by anti-Semitism cases and is failing in its mission to protect Jewish students,” he wrote.

In response to pressure from Marcus and others, the Obama administration’s Office for Civil Rights outlined in 2013 what it believed was actionable discrimination against Jewish students.

The Education Department at the time wrote a letter that emphasized a distinction between anti-Semitism and political views about Israel. It said that “OCR is careful to differentiate between harassment based on an individual’s real or perceived national origin, which is prohibited by Title VI, as compared to offensive conduct based on an individual’s support for, or opposition to, the policies of a particular nation, which is not.”