Deportations, lawsuits, increased scrutiny: How the Trump administration could handle campus antisemitism

(JTA) — Jewish parents in Maryland’s Montgomery County have no clue how their school district’s antisemitism investigation is proceeding.

It’s been more than nine months since the U.S. Department of Education opened its Title VI civil rights probe into reports of antisemitic bullying, including at pro-Palestinian student protests, at the suburban Maryland district. The case was one of more than 100 investigations the department’s Office of Civil Rights has opened at colleges and K-12 districts since the Gaza war began, part of the Biden administration’s highly publicized efforts to combat rising campus antisemitism and Islamophobia.

Yet today, according to department records, the vast majority of those cases have yet to be resolved — including Montgomery County Public Schools’. And the parent activists who initially sounded the alarm on the district say they haven’t heard anything.

“If there is an investigation, it certainly doesn’t seem to be causing much concern,” Margery Smelkinson, one of the Jewish parents, told the Jewish Telegraphic Agency last week. “The process is completely opaque, and it’s hard not to conclude that nothing is actually being done.”

Smelkinson’s group, the Maryland Jewish Alliance, tried submitting their own Title VI complaint, in partnership with the right-wing Zionist Organization of America. The initial complaint was filed by a conservative activist with no connection to the district and without the group’s knowledge, based on an op-ed Smelkinson and another parent had written. By contrast, the complaint from the parents who actually lived there, she felt, was “far more detailed.”

Yet the office wouldn’t open theirs, because the less detailed one had beaten them to the punch — a sign, she believes, that the department is only doing “the bare minimum.”

Critics of the OCR’s handling of antisemitism complaints are hoping that will change during a second term for Donald Trump, who has proposed a radical overhaul of United States education policy, including shuttering the DOE altogether. He also wants to use the long arm of the law on pro-Palestinian, non-citizen campus protesters, having threatened to deport them.

If Trump were to follow through on closing the Department of Education, the Department of Justice would be a likely new home for campus civil rights issues including Title VI. Trump’s nominee for attorney general, Pam Bondi, has taken a hard-line approach against campus pro-Palestinian protesters.

Other campaign promises, including threats to hold university endowments and accreditations hostage unless they curb what Trump calls “Marxist maniacs and lunatics,” have set off alarm bells among many education insiders and proponents of academic freedom. They worry about his nominee for education secretary, Linda McMahon, who has very little education experience, and note that Trump-friendly states like Texas and Oklahoma are more openly embracing a push to get Bible-tinged curriculum into public schools.

But some Jewish parents, if they’re not exactly welcoming all of these changes, see an opportunity in Trump’s education agenda. It was under his first administration, they point out, that the department expanded some Title VI protections for Jews, as outlined in a 2019 executive order on antisemitism.

“One can only assume this issue will be taken more seriously under his administration,” Smelkinson said.

Through a spokesperson, the Department of Education declined to comment for this story. But its top officials, including current Education Secretary Miguel Cardona and Catherine Lhamon, who oversees the Office of Civil Rights, have in the past year told JTA they place a high priority on fighting campus antisemitism in their department through Title VI.

Major Jewish groups have taken this cue and seized on the statute. The American Jewish Committee has hosted webinars with Lhamon, and the Anti-Defamation League and others signed on to some civil rights complaints. Even more politically conservative Jews and Jewish groups, including ZOA, former Trump administration officials and Orthodox student-focused organizations, put stock in Biden’s intent to fight campus antisemitism and encouraged their networks to flood the department with Title VI complaints.

By some metrics, things are already better for Jews on campus. A new study from Harvard University found that the number of pro-Palestinian campus protests so far this semester — a common breeding ground for accusations of antisemitism — has plummeted to less than one-third of last semester. In part that is due to stricter enforcement of protests by schools that now must weigh the possibility of a federal investigation or a lawsuit much more heavily than they were in the immediate months after Oct. 7.

But when it comes to Title VI, despite a flurry of opened investigations at major educational institutions, few of the cases opened during Biden’s term have been completed.

A small number of Israel-related investigations opened since Oct. 7 have concluded with formal resolution agreements, or pledges from the schools to take specific steps to better address antisemitism. Those include the University of Michigan and the City University of New York, which both agreed to improve their antisemitism training; Brown University, which said it will rethink how it handles campus protests; and Muhlenberg College, which promised to take action against a tenured Jewish anti-Zionist professor who had been accused of harassing Jewish and pro-Israel students. (Muhlenberg’s agreement was reached days after the professor in question announced she had been fired over her advocacy.)

Some schools, as part of their resolution agreements, have hired Title VI coordinators to more effectively respond to future complaints. Such positions could soon become required by law, as in Maryland, where a legislator last week introduced a bill to require all colleges in the state to have such a staff role.

One of those schools to voluntarily create such a role, New York University, also instituted a bold change to its harassment policy by declaring that targeting “Zionists” could violate it. Such changes have drawn criticism from progressives, who argue that Title VI has prompted a chilling effect on pro-Palestinian campus speech and courses.

Some Title VI cases that predated Oct. 7 by years, including one at the University of Illinois, have also formally concluded in the months since renewed attention was placed on the department.

On Tuesday, the ADL and the Jewish legal group Brandeis Center for Human Rights Under Law announced another resolution, this one involving Occidental College in Los Angeles — where, the April complaint alleged, Jewish and Israeli students were accosted by protesters on campus who sometimes uttered antisemitic slurs. The complaint also accused the college of not protecting Jewish students by agreeing to some demands of pro-Palestinian protesters who, shortly after Oct. 7, had occupied a building on campus.

In response the school agreed to “consider” the International Holocaust Remembrance Association’s controversial definition of antisemitism, which progressive critics say chills legitimate criticism of Israel. (The resolution agreement includes a caveat that IHRA will be utilized “only where useful as ‘evidence of discriminatory intent.’”) The college also said it would incorporate some attacks on Zionists (including “applying a ‘no Zionist’ litmus test for participation in any Occidental activity”) into its bias and harassment training.

Other agreements include appointing a director of Jewish student life (and one for Muslim student life), and agreeing to host lectures and workshops about “the connections between Jewish identity, Israel and Zionism.”

Agreements like the one reached at Occidental could be seen as a win for many pro-Israel Jewish groups who have been pushing the IHRA definition for years (it was included in Trump’s 2019 executive order), as well as a sign of how Title VI enforcement appears to be aligning more and more closely with their longstanding goals for policing discussions of Israel on campuses.

But for every resolution, there are many more in the department’s backlog. Many Title VI cases at high-profile schools remain active, including three at Columbia University; one at Harvard; two at Cornell; and others at major public school districts in New York, San Francisco, Chicago and Oakland. The department has also continued to open new cases on a weekly basis, though at a slower clip than its height this past winter.

(The civil rights office does not disclose details about its ongoing investigations, including whether a case involves allegations of antisemitism or other civil rights violations, but JTA has independently verified that many if not all of those listed above involve Israel-related matters.)

For Kenneth Marcus, the founder of the Brandeis Center and a former Trump official, the president-elect’s plans for education — even his hopes of dismantling the department — should be welcomed by Jews.

“It’s not entirely clear that creating the Department of Education was so good for education, and so it’s not any more clear that closing it would be bad,” Marcus, who headed the department’s civil rights office in Trump’s first term, told JTA. He added that Trump has demonstrated a particular interest in campus antisemitism, including by vowing to deport pro-Palestinian campus protesters, and that his first administration’s track record should comfort Jews: “No president during our lifetimes has done more to address campus antisemitism from a policy perspective than President Trump did.”

Other major Jewish players in the TItle VI space said they still believed in the law’s effectiveness in addressing campus antisemitism.

“Title VI has been, and continues to be, a vital and effective tool for fighting antisemitism and protecting Jewish students from hostile environments and/or pervasive harassment,” Laura Shaw Frank, director of AJC’s Center for Education Advocacy, told JTA in a statement. “We are confident that investigations will continue under the incoming Trump administration and urge reporting of any and all incidents of antisemitism.”

“Regardless of the future of the DOE there will still remain the need for Title VI enforcement,” Rabbi David Markowitz, executive vice president at the Orthodox campus outreach group Olami, told JTA in a statement. “Another agency will need to pick up the responsibility or they will need to work with states to fight antisemitism on campus.”

Since Oct. 7, Olami has taken an active role in advocating for stricter federal enforcement of Title VI. This spring the group held a press conference on Capitol Hill urging changes to its reporting system. At the conference, one of Olami’s biggest advocates in Congress was Republican Rep. Nancy Mace of South Carolina, who last week introduced legislation intended to keep a newly elected transgender representative from using women’s restrooms on Capitol Hill.

Not all conservative campus antisemitism activists are upset with the Biden administration’s handling of the issue.

“I have nothing but respect for the Office for Civil Rights’ handling of my Title VI complaints,” said Zachary Marschall, the editor of the conservative college-focused site Campus Reform and a frequent filer of Title VI antisemitism complaints. “The staff remain communicative and committed to doing their jobs.”

Marschall has filed dozens of complaints at campuses across the country, sometimes based on social media reports; Jews and officials at several of these campuses have criticized his approach as meddling. But, he said, federal investigators have taken them seriously. Brown’s resolution stemmed from his own complaint, and another one of his, at Temple University, is also negotiating a resolution, he said.

Without commenting on what Trump could do to the campus antisemitism fight, Marschall said the problem “is now a bottom-up process that primarily involves college administrators, law enforcement, and prosecutors,” rather than the federal government.

To Marcus, the possibility that Title VI enforcement could move to the Justice Department is a positive development: A Justice mandate to fight campus antisemitism, he says, would likely bring more federal lawsuits against schools. Since he left the Trump administration, the Brandeis Center has filed both lawsuits and Title VI complaints against schools for alleged antisemitism, in some cases partnering with the ADL.

(Lawsuits, if they progress to a trial or a settlement, can be more powerful tools for holding institutions accountable than agreements reached by the Department of Education, which can only dangle federal funding as leverage. But lawsuits are also more expensive and time-consuming than filing a Title VI complaint, making them less realistic for individuals unconnected to groups like the Brandeis Center.)

While other Jews have been frustrated by Title VI, in Marcus’s view, they should keep filing complaints.

“This would be the worst time to stop filing OCR complaints,” he said. “We certainly won’t stop filing OCR complaints anytime soon. After all, there’s a new administration coming into power.”

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