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Public Statements

Letter to the Honorable Margaret Spellings, Secretary, US Department of Education

Letter

By:
Date:
Location: Washington, DC

Congressman Brad Sherman applauded Secretary of Education Arne Duncan for agreeing to return to its 2004 policy and applying Title VI of the Civil Rights Act to the protection of Jewish students from anti-Semitism on campuses.

"For two years, I have been pushing the U.S. Department of Education to adopt this policy, held numerous meetings with the Department's officials, and conversations with Secretary Duncan. The policy is now clear: colleges and universities will no longer be permitted to turn a blind eye when Jewish students face severe and persistent anti-Semitic hostility on their campuses. The schools will now be compelled to respond."

Congress passed Title VI of the Civil Rights Act of 1964 to protect students from discriminatory harassment. Title VI prohibits discrimination based on "race, color, or national origin." Unfortunately, the Office of Civil Rights of the Department of Education (OCR) had recently revised its policy and decided that Title VI does not apply to acts of discrimination against Jewish students, erroneously claiming that because Judaism is a religion that Jews do not constitute an ethnic group.

Recently, there have been multiple, unsettling incidents involving anti-Semitic epithets, slurs, obscenities and even physical violence towards students at American schools. These incidents include:

At the University of North Dakota, a student was harassed by fellow students with anti-Semitic slurs and was shot at with a pellet gun.

At the University of California at Irvine, a Holocaust memorial was destroyed; posters have depicted women in traditional Muslim garb saying "God bless Hitler;" swastikas have defaced campus property; and a Jewish student was told to "Go back to Russia where you came from."

In response to these tragic events, Sherman began intense efforts to convince the Department of Education to return to its 2004 policy and protect Jewish students on campuses, including a letter of April 30, 2008 signed by 5 members of Congress. This policy change has been supported by the Zionist Organization of America (ZOA) and Hillel, as well as the American Jewish Committee, B'nai B'rith, the Union of Orthodox Jewish Congregations of America, the Anti-Defamation League and U.S. Senator Arlen Specter.

Sherman pledges to continue to work to protect Jewish students, and all Jews, from anti-Semitism.

The Department of Education also announced that it would use Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to protect LGBT students, and Title II of the Americans with Disabilities Act to protect students with disabilities from harassment on campus. Sherman applauds this decision.

April 30, 2008

Secretary Margaret Spellings
U.S. Department of Education
Office of the Secretary
400 Maryland Avenue, SW
Washington, DC 20202-1510

RE: Title VI Applies to Anti-Semitism

Dear Secretary Spellings,

We are writing to express our concern regarding anti-Semitic incidents aimed at
Jewish students at several colleges and universities and the response to such incidents by
the Department of Education's Office for Civil Rights (OCR). In particular, we are
concerned about whether OCR is enforcing Title VI of the Civil Rights Act of 1964 (Title
VI)to protect Jewish students from anti-Semitic discrimination.

FACTUAL BACKGROUND

On October II, 2004, the Zionist Organization of America (ZOA) filed a
complaint with OCR alleging a pattern of anti-Semitic harassment, intimidation, and
discrimination on the campus of the University of California at Irvine (UCI). Such
conduct allegedly interfered with the ability ofUCl's Jewish students to participate in
and benefit from academic and extracurricular activities. Many of the students reportedly
felt threatened, and some transferred to other schools due to the harassment. The
complaint further alleged that because UCl's administration failed to respond effectively
to repeated complaints about anti-Semitism on campus, UCI had violated Title VI.
Over three years later, on November 30,2007, OCR concluded that it lacked
jurisdiction under Title VI over many of the allegations in the ZOA's complaint. Title
VI prohibits discrimination based on "race, color, or national origin." Because OCR
reasoned that none of these categories generally apply to anti-Semitism, OCR did not
have the authority under Title VI to pursue most of the alleged claims of discrimination.
This reversed OCR policy, as clarified in 2004, of protecting Jews against anti-
Semitism.

CASE LAW

Jewish students are entitled to protection under Title VI. Under the federal
courts' interpretations of various civil rights statutes, Jews are both a racial and a national origin group. In interpreting the Civil Rights Act of 1866, the U.S. Supreme Court held
that Jews are a race. Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987).
Furthermore, federal courts have held that in the context of civil rights legislation,
national origin groups are those with common ethnic characteristics. See Almendares v.
Palmer, No. 3:00-CV-7524, 2002 WL 31730963 at *10 (N.D. Ohio Dec. 3,2002)
(relying on the Equal Employment Opportunity Commission's Guidelines on
Discrimination Because of National Origin stating that to prove a national origin claim, it
is enough to show that the complainant was treated differently than others because of his
of her foreign accent, appearance or physical characteristics); see Janko v. Illinois State
Toll Highway Authority, 704 F. Supp. 1531 (N.D.IllI989) (holding that the Roma
people, often referred to as "Gypsies", are a national origin group because of common
ethnic characteristics and despite the fact that those referred to as "Gypsies" are not
descendant from a particular nation-state). Widely-accepted historical and scientific
genetic evidence prove that virtually all Jews are descended from the Kingdom of Judea
and thereby share a common national origin and common ethnic characteristics. Under
relevant case law, therefore, Jews are a national origin group.
Even though the concept of race and national origin may be subject to debate in
other contexts, OCR, in enforcing civil rights legislation such as Title VI, has a statutory
responsibility to interpret these concepts broadly and expansively. As the Supreme Court
stated, "Congress intended to protect from discrimination identifiable classes of people
who are subjected to intentional discrimination solely because of their ancestry or ethnic
characteristics." Saint Francis College v. AI-Khazraji, 481 U.S. 604, 613 (1987). In the
vast majority of cases where Jews face discrimination, it is precisely because the
individual victim shares cultural and ethnic characteristics with other Jews.
Consequently, it seems likely that the U.S. Supreme Court, were it to take up the issue,
would find that Title VI protects Jewish students against anti-Semitism.

OCR POLICY

OCR's conclusion with respect to the UCI case is inconsistent with its prior
policy statements. In 2004, OCR issued a series of policy statements announcing that
it would assert jurisdiction under Title VI to pursue claims alleging harassment of
Jewish students. In a September 13,2004 "Dear Colleague" letter, OCR recognized that
there are "students who may be targeted for harassment based on their membership in
groups that exhibit both ethnic and religious characteristics, such as Arab Muslims,
Jewish Americans and Sikhs." According to OCR, "[g]roups that face discrimination on
the basis of shared ethnic characteristics may not be denied the protection of our civil
rights laws on the ground that they also share a common faith." Unless the alleged
harassment or discrimination is "based on religion per se," OCR made clear that it would
treat anti-Semitic harassment as racial or ethnic harassment prohibited by Title VI. In
another letter to the Institute for Jewish and Community Research dated October 22,
2004, OCR, relying upon the Court's decision in Shaare Tefila Congregation, explained
that "[i]n short, OCR recognizes that Title VI covers harassment of students of Jewish
heritage regardless of whether the students may be Caucasian and American born."
This interpretation was endorsed by the United States Commission on Civil
Rights. On April 3, 2006, the Commission on Civil Rights recommended that OCR
vigorously enforce Title VI to ensure that Jewish students are protected from anti-Semitic
harassment due to the seriousness of the problems Jewish students were facing on school
campuses.

REQUESTED RESPONSE

Given that case law and prior policy statements by OCR reflect that OCR has a
legal obligation under Title VI to pursue claims alleging harassment of Jewish students,
we ask that you provide timely responses to the following questions:
Is it OCR's current policy that Jewish students are protected against racial and
ethnic harassment, intimidation, and discrimination under Title VI, regardless of
whether other forms of discrimination are alleged?
If OCR has narrowed its policy for enforcing Title VI to protect against anti-
Semitic harassment, intimidation, and discrimination in any way since the fall of
2004, what is the explanation for such a change in policy?
We appreciate your assistance in this matter and look forward to receiving prompt
responses to these inquiries.

Sincerely,

Brad Sherman
Member of Congress

Allyson Schwartz
Member of Congress

Linda Sanchez
Member of Congress

Bert Wexler
Member of Congress

Steven Rothman
Member of Congress

Additional Cosigner

Shelley Berkley
Member of Congress

Cc: Grace Becker, Acting Assistant Attorney General
Office of Civil Rights, Department of Justice


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