I was very disappointed in Frank Mickadeit's Wednesday column about incoming UCI Law Dean Erwin Chemerinsky and the issue of anti-Semitism at UC Irvine. Though Professor Chemerinsky played admittedly naive on the issue, Mickadeit could have asked one simple poignant and researched question: Wouldn't Title VI of the 1964 Civil Rights Act apply in this case?

For those unfamiliar with the case, when the Muslim Student Union brings speakers to campus that make derogatory remarks about Jewish people, can UCI be banned from receiving Federal funds?

Title VI seems abundantly clear:

Title VI, 42 U.S.C. § 2000d et seq., was enacted as part of the landmark Civil Rights Act of 1964. It prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.

Conversely, The Office of Civil Rights concluded that the defamatory use of the word "Jew" is  tied to the MSU's political animus for the policies of Israel, resulting in the exoneration of the University from charges of allowing a pervasive anti-Semitic environment. Of many reported incidents, the OCR cited the following example as insufficient evidence of hate speech directed at Jews:

The following excerpts from statements made on campus by Amir Abdel Malik Ali on May 18, 2006, are examples of generalizations that were offensive to Jewish student: "Liars Straight up liars, Rupert Murdock, Zionist Jews. The Zionist Jews own Fox News. They say that it's anti-Semitic if you say the Zionists control the media...."; and "They got the CIA. They got the media; they got the Congress': and "You all definitely don't love you children and you know why? Because you kill them...."; and "They have taken the concept of the chosen people with white supremacy and fuse them together, you will get people who are so arrogant that they will actually make a statement and implies that [they] are the only Semites. That's arrogance and that's the type of arrogance they display every day and that's the same type of arrogance that's getting them into trouble today."

Furthermore, UCI lawyers maintain that Title VI doesn't specifically apply to Jews because it connotes a religious category:

In response to Ms. Tuchman's mention of her Title VI complaint against Irvine, Ms. Geocaris argues that Title VI does not apply to allegations of anti-Semitism because religion is not a protected class for purposes of Title VI. Specifically, she argues that (a) the concept of race as understood at the time of the enactment of Title VI did not extend to Jews and (b) where the Civil Rights Act of 1964 had intended to include religion as a protected category, it only did so explicitly.

Evidently, the OCR decision and the position of UCI administrators aren't supported by case law. In Shaare Tefila Congregation v. Cobb (1987), the court held:

1. A charge of racial discrimination within the meaning of § 1982 cannot be made out by alleging only that the defendants were motivated by racial animus. It is also necessary to allege that that animus was directed toward the kind of group that Congress intended to protect when it passed the statute. P. 481 U. S. 617.

2. Jews can state a § 1982 claim of racial discrimination, since they were among the peoples considered to be distinct races, and hence within the protection of the statute at the time it was passed. They are not foreclosed from stating a cause of action simply because the defendants are also part of what today is considered the Caucasian race. Saint Francis College v. Al-Khazraji, ante, p. 481 U. S. 604. Pp. 481 U. S. 617-618.

The OCR decision also didn't follow previous policy recommendations outlined by The United States Commission on Civil Rights:

The OCR should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI against recipients that deny equal educational opportunities to all students. University leadership should affirm their commitment to equal educational opportunity, including ensuring that students are not subjected to a hostile environment on the basis of race, national origin, or religion.

Consequently, three United States Senators (Jon Kyl, Arlen Specter, and John Cornyn) from the Judiciary Committee questioned the validity of the OCR's Report:

Given the case law and prior policy statements by both the OCR and the Commission on Civil Rights indicate that OCR has a legal obligation under Title VI to pursue claims alleging harassment of Jewish Students, we ask that you provide a timely response to the following questions:

1) Is OCR's current policy that Jewish Students are protected against racial and ethnic discrimination under Title VI, regardless of whether the students may be Caucasian and American born?

2) If OCR has narrowed its policy in any way since fall of 2004, what is the explanation for such a change in policy?

3) Why did OCR take over three years to issue a decision on the complaint filed by the ZOA on behalf of Jewish students at UCI? According to OCR's decision, agency representatives did not visit the campus until 2006, and it is our understanding that OCR did not interview UCI Officials until then. It is also my understanding that the ZOA proffered witnesses whom OCR did not interview. Is three years typical to the amount of time OCR takes to complete investigations under Title VI? Why did OCR delay making site visits to UCI and interviewing university officials, and why did the OCR fail to interview all of the available witnesses.

It simply appears that UCI administrators and the Office of Civil Rights never had any intention of protecting the rights of Jewish students. Hence, their collective negligence can at minimum substantiate a case for revocation of funds as specified under Title VI.

For further reading on the pervasive problem of antisemitism at UC Irvine and other college campuses, Kenneth Marcus's paper comes highly recommended:

Sources:

1. Department of Education, Office of Civil Rights Report on UC Irvine
http://www.ocregister.com/newsimages/news/2007/12/OCR_Report_120507-Z05145157-0001.pdf

2. Law Dean: UCI Right on Speech
http://www.ocregister.com/articles/uci-chemerinsky-campus-2031395-jewish-last

3.  Letter By US Senators to Department of Education
http://octaskforce.files.wordpress.com/2008/03/senjudiccom0208.pdf

4. Higher Education, Harassment, and First Amendment Opportunism
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1112189_code791913.pdf?abstractid=1112189&mirid=1

5. United States Commission on Civil Rights, 2007 Campus Brief on Anti-Semitism
http://www.usccr.gov/pubs/081506campusantibrief07.pdf