Legal options

To file federal discrimination complaints, Jewish students must navigate legal and bureaucratic jargon

Jewish leaders pressed Biden administration officials this week on slow process and investigation times

CAMBRIDGE, MA - DECEMBER 16: A gate sits locked on Quincy Street at Harvard University during a bomb scare December 16, 2013 in Cambridge, Massachusetts. Police were alerted at roughly nine thirty this morning of possible bombs at four different buildings on the Harvard campus. (Photo by Darren McCollester/Getty Images)

In the wake of the October 7 Hamas attacks, Jewish students at many American universities don’t feel safe on campus anymore.

In cases when university efforts to address antisemitism fall short, or when Jewish students face persistent discrimination, students have a number of legal options. Jewish students have a right to an educational environment free from harassment, as do all students. They and their parents have avenues for relief through federal civil rights statutes. 

Unfortunately, those protections are shrouded in a layer of legal and bureaucratic jargon; it can be hard to know what, exactly, the options are, and how to make sense of them. 

In most cases, Jewish students alleging that their civil rights have been violated will turn to Title VI of the Civil Rights Act of 1964 — frequently referred to by university administrators and the Jewish professionals who work on these issues as, simply, “Title VI.” 

The clause says that no one in the United States shall, “on the ground of race, color or national origin,” face discrimination in programs that receive federal funding. This includes educational institutions, because even private universities receive federal funding.

Title VI does not mention religion. But for nearly two decades, beginning in the George W. Bush administration, Title VI protections were extended to religious minorities including Sikhs, Muslims and Jews who faced discrimination based on their “actual or perceived shared ancestry or ethnic characteristics,” according to federal guidance that has been affirmed and expanded by the Biden administration. 

“That is really how Jewish students are frequently experiencing harassment or discrimination,” said Amy Feinman, interim vice president of civil rights at the Anti-Defamation League. “It’s not necessarily based on their religious practices, but rather based on their actual or perceived ethnic identity. For example, swastika vandalism is a very good example of individuals or Jewish institutions being targeted not based on religious practices or religious beliefs, but really their perceived ethnic identity.” 

Filing a Title VI complaint “can be an appropriate form of relief for individuals who are concerned that the university itself or the college itself is not taking sufficient steps to address the hostile environment,” said Feinman. It covers treatment that “essentially denies or limits [a student’s] ability to participate in or benefit from educational programs and activities.” 

A Jewish student who wants to allege discrimination under this statute can file a Title VI complaint with the Department of Education’s Office of Civil Rights (OCR) online, via mail or via email. 

“You don’t need a lawyer for that. You can just write it out, although it helps to have a lawyer to write out the complaint in a way that will satisfy the jurisdictional prerequisites and so forth,” said Mark Rotenberg, vice president for university initiatives and general counsel at Hillel International.  

On Monday, the White House announced a series of actions taken by the Biden administration to respond to the rise in antisemitism on college campuses. Along with devoting federal law enforcement resources to work with universities on the problem, the White House promised to update the form for students who wish to file such a complaint to specifically note that Title VI covers this expanded definition of religious discrimination. 

The new form for the first time says that prohibited forms of discrimination include “harassment, because you and/or another individual are, for example, Jewish, Muslim, Arab, Hindu, or Sikh; or based on other ethnic and religious characteristics.” Previously, Jewish students may not have understood where they fit in on the complaint form. Students have 180 days from the date of an incident to file a complaint.

Still, filing a complaint does not mean the Education Department will respond to it in a timely manner. 

The Education Department “is actually very slow in processing these and investigating them,” said Rotenberg. He raised the issue in a Monday meeting with Second Gentleman Doug Emhoff and Education Secretary Miguel Cardona about campus antisemitism. 

“We made the pitch very strongly that OCR simply needs more resources. Because they’re frankly way too slow in processing these things, and often the students have graduated by the time OCR gets around to actually investigating the allegations. That’s not justice for our students,” Rotenberg continued.

Title VI complaints usually end with the university reaching a settlement with the Education Department. For instance, in July, the Education Department resolved a Title VI investigation into the University of Vermont that began after Jewish students said they faced online discrimination. The university agreed to review and revise its policies responding to antisemitism, and to issue a statement formally condemning antisemitism.

Jewish students can also file a civil lawsuit against a university in federal court, alleging widespread antisemitism over a prolonged period of time. This also falls under Title VI but is much rarer, save for a 2019 case in which Jewish students settled a case with San Francisco State University after claiming they had faced systemic antisemitism. 

Mark Ressler, a partner at the New York law firm Kasowitz Benson Torres, is working with Jewish students at schools including Cornell and Harvard who are considering filing similar lawsuits.

“We will show in our litigation that on various campuses, there has been pervasive antisemitism that the university administrators were aware of and had notice of antisemitic incidents, and that they acted with deliberate indifference, which is one of the key legal terms with respect to this treatment of Jewish students,” Ressler said. 

The broad interpretation of Title VI as including religious minorities has held throughout four presidential administrations, and President Joe Biden even kept a Trump-era executive order strengthening civil rights protections for Jewish students. But it is not officially part of the statute.

“That’s a very tenuous foundation for the principle of non-discrimination against Jewish students,” said Rotenberg. “We need to codify in regulation these letters and public statements and the Trump executive order, which can be rescinded by a president at any moment.” 

The 2019 Trump executive order also stated the federal agencies enforcing Title VI should consider the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism, which has been embraced by wide swaths of the Jewish community but is viewed skeptically by some progressives for its acknowledgment that some critiques of Israel can be antisemitic. 

“Agencies enforcing Title VI must consider IHRA’s working definition of antisemitism,” Herbie Ziskend, the White House deputy communications director, told Jewish Insider on Wednesday. Some letters from Jewish alumni at prominent universities, including Yale and Harvard, have called on university administrators to formally adopt the IHRA definition.

But some advocates who generally support the use of the IHRA definition argue that now is not the right time for a high-level conversation about definitions.

“Adoption of the IHRA definition by itself does not change the campus climate for Jewish students,” said Rotenberg. “The day after a president or a chancellor adopts the IHRA definition, Jewish students do not experience a better campus climate. What actually needs to happen is the adoption of a set of policies, procedures and academic offerings.” 

Rotenberg, who previously served as the general counsel at the University of Minnesota and at Johns Hopkins University, also called for the Education Department to send a so-called “Dear Colleague” letter “that is focused on the spike in antisemitism in K-12 and higher-ed spaces,” he said. “As a former general counsel, I read those enforcement letters from OCR very, very carefully.” A White House spokesperson did not respond to a request for comment.

Of course, university administrators also have it within their own capacity to act against antisemitism — before the federal government gets involved.

“One thing that ADL is recommending above and beyond Title VI is just to think very proactively right now,” Feinman said, “about the steps that [universities] can take to create safe and inclusive learning environments for all students, including Jewish students.”

Subscribe now to
the Daily Kickoff

The politics and business news you need to stay up to date, delivered each morning in a must-read newsletter.