Department of Education official explains why colleges haven’t lost federal funding over antisemitic activity

Catherine Lhamon, the assistant secretary of education for civil rights, told lawmakers on Friday that existing federal law and procedures make it unlikely that any schools will lose their federal funding over antisemitic activity on their college campuses in the near term.

Some lawmakers have honed in on threats to colleges and universities’ federal funding as a method of pressuring or penalizing them over their failure to protect Jewish students. But Lhamon explained at a roundtable with congressional Democrats that pulling funding requires a yearslong litigation process under current federal statute.

Before seeking to revoke funding, Lhamon said that her department, the Office of Civil Rights, must first investigate and communicate a finding that the subject of an investigation has violated civil rights law, at which point she’s required to give schools the opportunity to voluntarily come into compliance.

If a school refuses, then the DOJ can take the matter to an administrative law judge. If the judge rules that the school is in violation, the subject can still appeal the ruling all the way to the U.S. Supreme Court. Only at the end of that process — which Lhamon acknowledged could take years — can funds actually be revoked, Lhamon said.

But, she added, most schools will agree to voluntarily take action — OCR is currently taking a discrimination case, related to disability issues, to a judge for the first time in 27 years.

Lhamon also acknowledged another gap in her office’s enforcement ability — she does not have the authority to require schools to dismiss problematic faculty.

Addressing the antisemitism that has pervaded campuses across the country over the past 11 months, Lhamon described herself as “shocked” by the comments she hears from school leaders professing to be unaware of their responsibilities to protect Jewish students from discrimination under Title VI of the Civil Rights Act, a situation she described as unacceptable.

“We are seeing kids assaulted. We are seeing kids stopped from going to class,” Lhamon said. “These are not close calls about whether a university should be responding to them, and yet our universities are treating them like there’s maybe something they don’t need to do, or there’s a byzantine process that a student needs to follow before they can get a university response. That’s not the law.”

Lhamon’s presentation to the lawmakers focused heavily on her office’s need for additional funding; she said that Congress “has never” provided sufficient funding.

The lawmakers who attended the event, Reps. Dan Goldman (D-NY), Debbie Wasserman Schultz (D-FL), Kathy Manning (D-NC), Grace Meng (D-NY), Jerry Nadler (D-NY), Wiley Nickel (D-NC) and Kim Schrier (D-WA), are supporting a Goldman-sponsored bill that pushes for increased funding for OCR.

Lhamon said her office has around 400 investigative staff, the same number it has since the Bush administration. Complaints, especially in the wake of Oct. 7, have surged, however, from 6,000 per year to 19,201 in 2023, a record it is set to easily surpass this year, with around 24,000 so far.

Four hundred of those complaints were related to discrimination based on shared ancestry or national origin, some of those being antisemitism complaints. OCR currently has 162 such cases under investigation and many more go unreported, Lhamon said.

“I cannot manage that complaint volume with the staff that I have,” Lhamon emphasized, warning that talented and experienced investigators could leave the office. “Our staff are now carrying about 51 cases per person, and you cannot do civil rights work effectively with a caseload that is that high.”

Lhamon said that staff shortages are causing cases to drag on, leaving students to wait, in some cases until after they’ve graduated, for their cases to be resolved.

“That’s not protecting civil rights in the way Congress intended,” Lhamon said.

Lhamon said that the administration’s requested budget increase would allow the office to add 77 new investigators. She said that the ideal target would be 20 or fewer active cases per investigator. But it appears unlikely that Congress will fulfill the administration’s request.

“We don’t have any more efficiencies we can bring to this problem,” Lhamon added. Some lawmakers have argued the case backlog is an issue of improper procedures or prioritization at OCR.

She explained that there is a low bar to opening a formal investigation, which includes extensive document requests and interviews and often surfaces additional instances of examples of discrimination.

Even once cases are resolved, OCR staff are responsible for continued monitoring of schools that have settled with the office. For instance, schools entering into agreements relating to antisemitism are now being required to report every complaint of antisemitism they receive to OCR, so that federal officials can monitor how the schools respond.

Pressed by lawmakers on why her office does not provide specific detail about the nature of the shared ancestry cases it is investigating — such as how many relate to antisemitism — Lhamon said that most antisemitism cases ultimately grow to involve other areas of discrimination as well.

“Here’s maybe an ugly answer to that, but if a university is not handling antisemitism, it’s also not handling anti-Islam,” Lhamon said. “What we’re finding is, if a school doesn’t know or isn’t fulfilling its obligations under Title VI, it’s not doing it for people in general.”

Lhamon also lamented what she characterized as a failure on behalf of schools to take steps to inform students of the rights and protections they are entitled to and how to report cases of discrimination.

She offered, as an example, that she frequently sees information sheets inside bathrooms on campuses about how students can report sexual harassment and sex discrimination, but not similar information sheets about other forms of discrimination.

Lhamon suggested Congress could consider legal changes to address such gaps.

House lawmakers demand Harvard, MIT, Penn fire their presidents over antisemitism testimony

Seventy-four House lawmakers  wrote to the boards of Harvard, the Massachusetts Institute of Technology and the University of Pennsylvania on Friday demanding that they immediately fire their presidents in response to widely criticized congressional testimony they delivered on antisemitism on their campuses earlier this week.

The presidents of the three schools have come under increasing scrutiny this week amid growing speculation that their jobs could be on the line following their refusal to say earlier this week that calls for Jewish genocide would violate their schools’ codes of conduct.

“Testimony provided by presidents of your institutions showed a complete absence of moral clarity and illuminated the problematic double standards and dehumanization of the Jewish communities that your university presidents enabled,” the letter reads. “Given this moment of crisis, we demand that your boards immediately remove each of these presidents from their positions and that you provide an actionable plan” to ensure the safety of the Jewish community on campus.

“Anything less,” than the steps they requested, the lawmakers continued, “will be seen as your endorsement… and an act of complicity in their antisemitic posture.”

The letter was led by Rep. Elise Stefanik (R-NY), who questioned the presidents on the genocide issue, and Rep. Jared Moskowitz (D-FL). Rep. Josh Gottheimer (D-NJ) is the only other Democrat who signed the letter; the rest are Republicans.

The lawmakers said that the testimony makes it “hard to imagine” any Jewish or Israeli person feeling safe on their campuses when the presidents “could not say that calls for the genocide of Jews would have clear consequences on your campus.”

It adds that subsequent social media statements seeking to clarify or walk back those comments “offered little clarification on your campus’ true commitment to protecting vulnerable students in this moment of crisis,” describing them instead as “desperate attempts to try and save their jobs” and “too little too late.”

Shortly before the Stefanik-Moskowitz letter was released, a group of thirteen House Democrats wrote to the boards of the three schools urging them to re-examine their codes of conduct to make clear that calls for the genocide of Jews are not acceptable.

This second letter, led by Reps. Kathy Manning (D-NC), Jake Auchincloss (D-MA) and Susan Wild (D-PA), includes similar language to the bipartisan letter regarding the presidents’ testimony and how it would make Jewish campus members feel unsafe, but stops short of directly calling for the presidents to be fired.

The lawmakers wrote that they felt “compelled to ask” if the presidents’ responses “align with the values and policies of your respective institutions.”

“The presidents’ unwillingness to answer questions clearly or fully acknowledge appalling and unacceptable behavior — behavior that would not have been tolerated against other groups — illuminated the problematic double standards and dehumanization of the Jewish communities at your universities,” the letter continues. “The lack of moral clarity these presidents displayed is simply unacceptable.”

The lawmakers requested that the schools update their policies to “ensure that they protect students from hate” and describe their plans for protecting Jewish and Israeli community members.

“There is no context in which calls for the genocide of Jews is acceptable rhetoric,” the letter reads. “While Harvard and Penn subsequently issued clarifying statements which were appreciated, their failure to unequivocally condemn calls for the systematic murder of Jews during the public hearing is deeply alarming and stands in stark contrast to the principles we expect leaders of top academic institutions to uphold.”

The letter notes that federal civil rights law prohibits discrimination against Jews on campus, and that criminal law bans hate crimes, violence and incitement to violence.

“Students and faculty who threaten, harass, or incite violence towards Jews must be held accountable for their actions,” the lawmakers wrote. “If calls for genocide of the Jewish people are not in violation of your universities’ policies, then it is time for you to reexamine your policies and codes of conduct.”

Signatories to the Democratic letter include Manning, Wild, Auchincloss, Debbie Wasserman Schultz (D-FL), Lois Frankel (D-FL), Haley Stevens (D-MI), Greg Landsman (D-OH), Grace Meng (D-NY), Brad Schneider (D-IL), Dan Goldman (D-NY), Donald Norcross (D-NJ), Jerry Nadler (D-NY) and Elissa Slotkin (D-MI).

All of the signatories to the Democratic letter are either Jewish or deeply involved with Jewish community issues on the Hill. 

Earlier this week, a third letter by six House Republicans from Pennsylvania — Reps. Guy Reschenthaler (R-PA), alongside Congressmen John Joyce, M.D. (R-PA), Mike Kelly (R-PA), Lloyd Smucker (R-PA), Brian Fitzpatrick (R-PA), and Dan Meuser (R-PA) — called for University of Pennsylvania President Liz Magill specifically to be fired.

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By Jacob Kornbluh & JI Staff