The recent resurgence of anti-Semitic incidents at American colleges and universities1 has revealed a significant ambiguity in anti-discrimination law and raised questions regarding the scope of prohibited racial and ethnic discrimination in American educational institutions. Title VI of the Civil Rights Act of 1964 (the "1964 Act") prohibits discrimination on the basis of race, color, or national origin in federally funded programs or activities, including most public and private universities but does not explicitly prohibit religious discrimination.2 Since anti-Semitism may be based on ethnic, racial, or religious animus, the question arises as to whether antiSemitism is covered and to what extent. Recent high-profile incidents of alleged antiSemitic behavior on American college campuses have focused attention on this question and on the efforts of federal agencies to answer it. The issue is complicated by the politically charged atmosphere in which these incidents arise, in which alleged harassment is often closely connected to speech activities relating to matters of significant public import, such as the Israeli-Palestinian conflict.
Until late 2004, the U.S. Department of Education's Office for Civil Rights (OCR) largely avoided anti-Semitism cases based on two concerns, both of which have strong intuitive appeal. First, Jews are not considered to constitute a distinct "race" as that term is used in contemporary social science or in common public usage.3 Second, Congress elected not to prohibit religious discrimination in Title VI, and anti-Semitism is, among other things, a form of religious discrimination.4 Until 2004, OCR did not recognize that Jews also form an ethnic or ancestral group and that the scope of legislatively prohibited "racial" discrimination may not be limited by either social scientific or colloquial use of that term. In late 2004, OCR finally determined that Title VI of the Civil Rights Act of 1964 prohibits anti-Semitic harassment at federally funded public and private universities, except to the extent that the harassment is exclusively based on tenets of the student's religious faith.5 In other words, OCR policy now treats anti-Semitic harassment as prohibited racial or ethnic harassment except when it is clearly limited to religious belief rather than ancestral heritage.
This new OCR policy has been controversial.6 Critics contend that OCR overstepped its jurisdictional bounds and that the federal government lacks the authority to prevent anti-Semitic incidents even at tax-payer funded educational programs and activities.7 The U.S. Commission on Civil Rights, in a divided vote, confirmed OCR's 2004 interpretation and urged vigorous enforcement of Title VI to protect Jewish students from harassment.8 By way of disclosure, the author served as head of OCR at the time that it issued its 2004 policy and director of the Civil Rights Commission at the time that it issued both its findings and recommendations on campus antiSemitism and its full report on that topic.
This Article will argue that anti-Semitic harassment at federally assisted programs and activities, including post-secondary institutions, constitutes racial discrimination prohibited by Title VI when sufficiently severe, pervasive, and objectively offensive as to deny equal educational opportunities to Jewish students. This argument runs counter to commonly held intuitions for the two reasons that long delayed OCR's decision to extend civil rights protections to Jewish students: reluctance to characterize Jews as a race (with all of the nineteenth century pseudo-scientific and mid-twentith century anti-Semitic connotations with which that designation is laden)9 or to resist Congress's presumed intention to exclude religious groups from Title VI protection. Nevertheless, this Article will show that the scope of Title VI prohibition on racial discrimination encompasses anti-Semitism to the same wide extent as does the Fourteenth Amendment and the Civil Rights Act of 1 866 (the "1 866 Act"). …