Fighting the Fires in American Colleges

By Rafael Hoffman

Since Israel initiated its response to Hamas’ murderous attack, hardly a day passed without reports of college campuses serving as stages for virulently anti-Israel rhetoric, sometimes morphing into threats toward Jewish students.

Rising antisemitism in higher education is hardly a new phenomenon and has been the subject of much attention for more than a decade. Yet, whatever occurred in the past seems dwarfed by recent incidents.

At Cooper Union in lower Manhattan, a group of Jewish students found themselves under threat in the school library from participants in a “Student Walkout for Palestine Liberation.”

Jewish campus institutions at Cornell University found themselves under heavy security after a student posted violent online threats against Jews on campus in retaliation for Israel’s actions. Two weeks earlier, one of the university’s history professors praised Hamas’ attacks, describing them as “exhilarating.”

The list goes on, ranging from vitriolic rhetoric to physical threats and assaults.

By late October, the Secure Community Network logged 94 reported antisemitic incidents on campuses, far exceeding any other month since they began tracking in 2004.

Jewish groups and several politicians began to call for more aggressive approaches from government.

Education Secretary Miguel Cordona held a meeting with leaders from a wide range of Jewish organizations to discuss possible actions his department could take to address the matter.

Some states have taken action as well.

Florida Governor Ron DeSantis banned Students for the Liberation of Palestine (SLP) from operating on state university campuses, citing the group’s support of “Hamas terrorism.”

SLP has been at the center of organizing most large-scale anti-Israel activity on campuses. Virginia’s attorney general ordered an investigation into the group’s funding sources.

In New York, Governor Kathy Hochul ordered an independent investigation into antisemitism at the City University of New York (CUNY) system, where controversy is ongoing over what many see as a reluctance of the school’s own administrators to address the issue.

To gain a better understanding of what actions federal and state governments can take to address campus antisemitism, Hamodia spoke with Kenneth Marcus, founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. His organization, dedicated to fighting antisemitism through legal and government advocacy, is largely focused on antisemitism and anti-Israel activity on American college campuses. After a career as an attorney in private practice, Mr. Marcus taught at several law schools and is currently a distinguished senior fellow of the Center for Liberty & Law at George Mason University’s Antonin Scalia Law School. He also served several stints in the federal government, as staff director at the U.S. Commission on Civil Rights and general deputy assistant U.S. secretary of housing and urban development for Fair Housing and Equal Opportunity during the George W. Bush administration and as assistant U.S. secretary of education for civil rights during the Donald Trump administration.

One of the suggestions reportedly made at the recent meeting between leaders of Jewish organizations and Secretary Miguel Cardona was to strip federal funding from colleges that fail to “address” antisemitism. How would that be measured? What are colleges’ legal obligations?

The legal standard is a “prompt and effective response.” Prompt means don’t wait weeks or months before taking action, do it as soon as practical. Effective means that it works. If you took action and it didn’t work, you haven’t fulfilled your obligation to be effective.

A lot depends on the type of incidents that occurred. There are instances of Jewish students getting insulted or something of lesser severity, but there are also cases of them getting punched in the face or other criminal behavior.

Sometimes statements from administrators can be effective, but certainly not always. Often, addressing these issues takes policy changes, like training and other long-term efforts to change attitudes and behaviors.

Sometimes there are perpetrators who need to be disciplined, perhaps with suspension or expulsion in the case of students. In the case of faculty or administration, sometimes it could warrant suspension or termination.

In other cases, of course, the response should include criminal prosecution and conviction.

Cases that involve criminal behavior will ultimately be up to the justice system. For what aspects of those instances can a college be held responsible?

It’s ultimately up to law enforcement officials, but the university can certainly play a role. Universities have their own security and frequently refer matters to law enforcement for prosecution. Many campuses have their own police. And where criminal activity occurs, it’s important that arrests take place.

After a case is in the justice system, there are certainly things universities can do that make it easier for prosecutors to do their job, and they should be held accountable if they aren’t doing those things.

That said, even strong responses like expulsion or criminal prosecution aren’t always enough. In many cases, the school needs to address more than the individual perpetrators and look at the environment that has become poisoned by toxic anti-Zionism and antisemitism. Even harsh treatment of perpetrators often needs to be supplemented with strong messaging, training, and other actions that would happen in response to other hate or bias incidents.

Most troubling actions have been the work of private clubs or individuals. As such, to what extent can a college be held responsible for rhetoric or actions at a rally or the like? What are colleges’ obligations under federal laws to protect Jewish students from these incidents?

Some of the recent perpetrators have been professors or administrators. In one of our Harvard cases, it was a professor who silenced and mistreated three Israeli students based on their support for the State of Israel. However, even when the perpetrators are not employed by the university, the university often has control over the context and therefore has a legal obligation to respond to what’s happening, especially if it’s on their premises.

In terms of rhetoric, when we find deeply offensive antisemitic speech on a campus, we invariably find other problems as well, which generally fall under the rubric of bigoted conduct.

Perpetrators seldom stop at speech. If you look into many cases, what gained media attention might have been an inflammatory quote at a protest, but those types of comments are often indicators of more active components, like the cases we’ve seen of an instructor telling Jewish students to sit in the back of the class or warning Israeli students that there will be consequences if they talk about Israel.

Most of the vitriolic rhetoric about Israel comes from student organizations, not schools themselves. This being the case, how much can colleges do to address the toxic environment that now exists on many of their campuses?

There have been lots of instances over the years, but since October 7, we’ve been dealing with horror shows. When you see large scale campus support for Hamas atrocities, including mass slaughter and organized torture, we can’t call that a healthy environment anymore.

Any honest college administrator who sees significant numbers of their students supporting mass atrocities needs to take a close look at what has become of his institution. What we’re seeing is not just one or two individuals who have an extreme perspective. This is a question of how did these colleges become training grounds for spreading Hamas’ worldview? The question for administrators is not whether they should make a statement or not, but how did we come to this and what will it take to get us back to being the institution that we say we are?

Campus antisemitism is not new, but what’s going on now is a profound problem at the very root of these institutions. College and university administrators should see this as a wakeup call to fundamentally rethink their institutions.

In some cases, they should be disciplining a student or faculty member, but beyond that, they need to question everything from their DEI (Diversity, Equality, Inclusion) programs to their curricula to their faculty development, and everything else.

One suggestion made at the recent U.S. Department of Education meeting was to make it easier for students to file discrimination complaints. Is this currently a difficult thing to do?

That’s not the real problem.

I’m glad the Biden administration wants to make it easier for Jewish students to file complaints, but the real message here is that they should not have to wait for these complaints.

If they’re following the news, they see what’s going on. The Education Department could look at any one of these cases with what’s called a self-directed investigation. All that would take is for Secretary Cardona to say, “We are not going to close our eyes to reports of Jewish students being locked in a library”; or “We are not going to close our eyes to reports of students being told ‘death to the Jews.’” He can do that now.

The secretary could establish a nationwide compliance review initiative in which his department would look at campuses, and even high schools, around the country. That sends a strong message.

They don’t need to wait for Jewish students or faculty to complain. They need to take action.

The federal government requires college programs that receive government funds to “reflect diverse perspectives and a wide range of views.” Near East and Middle East programs have long been accused of failing to live up to this and of promoting anti-Israel thought. What role do you think these programs have played in contributing to a dangerous level of anti-Israel/antisemitic sentiment on campuses.

College administrators who seem perplexed about how to respond to a particular antisemitic incident don’t seem to realize that they have contributed to these incidents in a myriad of different ways.

One of them is by creating whole programs and departments that have become monolithically anti-Zionist and antisemitic. It’s not coincidental that in these same institutions, one finds students who develop extreme bigoted attitudes which are consistent with what they’ve been taught.

Are these programs a lost cause? As noted by your organization and others, they are rife with deeply anti-Israel faculty members. Can federal intervention help?

What universities need to do is to treat Israel comparably to other countries. Area studies programs typically help students learn applicable languages and teach them about foreign cultures. Their treatment of Israel is a complete anomaly. When it comes to Israel, they’re typically focused on the Israeli-Palestinian conflict, and they present a completely one-sided view of it.

It’s hard to say if they’re reformable. It may be that the federal government should reduce or eliminate funding to Middle East Studies programs, or alternatively, limit funding to language-learning as opposed to politics. These universities sign a pledge to provide diverse and balanced viewpoints, and the Education Department can hold them accountable to keep that pledge.

How big a role does federal funding play in the operation of most private colleges? How much leverage does the government have over their operation?

It’s a nuclear bomb. Few private colleges or universities could sustain the kind of blow that losing all federal funding would entail. Federal funding includes everything from federal support for scientific laboratories to Pell grants for students. It’s hard to imagine any university administrator keeping their job after they’ve lost all of this. The government has a lot of leverage to use, if it wants to.

What was done in past administrations, including ones that you were a part of, to address campus antisemitism?

During the George W. Bush administration, I established the doctrine under which Jewish students have protection from discrimination and harassment under Title VI of the Civil Rights Act of 1964. That was a big step forward. The Obama administration built on that and expanded the rules. President Donald Trump made a major contribution, issuing an executive order on combating antisemitism, which incorporated the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism, which most notably includes some forms of anti-Israel sentiment. That’s probably the single biggest step forward we’ve seen in the federal response to campus antisemitism. So far, we’ve not yet seen any comparable policy advancements from the Biden administration, although we need to acknowledge that the White House’s national strategy on antisemitism certainly helped raise the public profile of the issue.

What other steps do you think the Biden administration should take to address this situation on campuses?

The Biden White House has repeatedly promised that it would issue a notice of proposed regulation (NPRM) to implement the Trump executive order on combating antisemitism. Unfortunately, they’ve continually delayed their issuance of that order. Their current self-established deadline is December 2023, but that is coming very soon and it seems conspicuous that they didn’t even mention it in their national strategy on antisemitism, nor in the most recent report to Congress.

If the administration honors its commitment and does issue the guidance, this would be an important step, which should be applauded.

If, on the other hand, they miss yet another deadline, or decide they’re not going to issue it altogether, that would be a grounds for considerable regret and disappointment, especially at a time when antisemitism is unquestionably reaching a record high.

Turning to state-level responses, Governor DeSantis banned Students for Justice in Palestine (SJP) from state universities. How do you view the legal soundness of this move?

There are real questions about whether national SJP and perhaps some of its chapters have crossed a red line, which is more than just harassing Jewish students, but providing material support for terrorism. Under federal law, material support for terrorism doesn’t have to mean cash or guns. It can be communications support, similar to what commercial public relations firms provide. That doesn’t have to be a coordinated messaging effort with Hamas. But if they are intentionally amplifying Hamas’ message in order to help it achieve its goals, that could raise serious questions over whether felonies are being committed.

CUNY’s various branches have long been a base for BDS and harsh anti-Israel activity, accompanied by criticism that the system has been derelict in addressing these issues. Governor Hochul now ordered an independent review. What action do you think New York State should take to address the situation at CUNY?

Let me begin by saying that as a former CUNY instructor, I think the City of University of New York is an excellent institution that has played a unique and important role in the history of American education. In particular, in the middle of the 20th century, it had a major role in giving Jewish Americans opportunities in higher education and in integrating them into the nation’s economy. It remains an engine of progress for many immigrants and low-income persons today. I think it’s really a great institution.

Because of that, I am deeply saddened that in recent years, it has not lived up to its history or its promise. While I personally had only positive experiences at CUNY, we have received a constant stream of reports about antisemitic incidents that occurred there. We have a complaint pending about which an investigation has been opened. We’ve also been in touch with CUNY administrators and are open to working with them, but it’s unfortunate that it requires a gubernatorial order and an independent review to get these issues addressed seriously.

Is virulent anti-Israel sentiment on college campuses an intractable problem given the liberationist philosophy that is pervasive there and the anti-colonialist rubric they have placed Israel in, or do you think there are steps that could turn the tide?

I don’t believe we are doomed.

In my darker moments, I realize that periods of progress and tolerance for the Jewish people have been rare, while periods of persecution have recurred over and over again. It’s easy to fall into despair and wonder whether the post-World War II American Jewish experience has been an exception, which is coming to a close. It certainly is possible that’s going to happen and it’s hard not to worry about that when one sees how bad things have gotten recently, especially in the wake of October 7.

Having said that, the bulk of our experience in the United States has been one of tolerance, support, and even philosemitism. I see no reason to assume that we cannot turn things around if we fight for it. The Jewish people still have considerable strength in this country, and we still have many friends. If we turn a blind eye to what’s happening, things will get worse. The reason I committed myself to fighting antisemitism is that I believe, if we fight hard enough, G-d willing, we can turn this around, so that what we’ve seen in recent years will be viewed by history, not as the beginning of a trend, but as an anomaly in what is otherwise a long period of American exceptionalism.