The New OCR Antisemitism Policy

Kenneth L. Marcus

The Louis D. Brandeis Center for Human Rights Under Law

April, 17 2011

Journal for the Study of Antisemitism, Vol. 2, 2011

The U.S. Department of Education's Office for Civil Rights (OCR) issued important policy guidance on bullying and harassment in October 2010. Although easily overlooked within this policy document, OCR's new guidance includes an important statement regarding OCR's position on anti-Semitism within federally funded educational programs and activities. In a nutshell, OCR has reinstated its long-disregarded 2004 policy, which had established that OCR would prosecute cases of harassment that are based on ethnic or ancestral discrimination, even though OCR lacks jurisdiction to address cases of purely religious discrimination. This conference paper, delivered at the inaugural symposium of the Journal for the Study of Antisemitism, argues that the Obama administration's October 2010 OCR anti-Semitism policy is a bold and important advance but that its success or failure in practice will depend on three questions: First, can OCR properly define anti-Semitism in practice, distinguishing it where appropriate from non-discriminatory criticism of the State of Israel? Second, can OCR properly respect the boundaries between harassment law and the Speech Clause of the First Amendment? Third, will Congress close the remaining loophole which permits discrimination against ethno-religious minorities if it is based exclusively on religion but not if it is based in part on ethnicity?

Number of Pages in PDF File: 17

Keywords: Antisemitism, anti-semitism, racism, discrimination, Title VI, Civil Rights Act of 1964, education, educational equity, religion, religious, anti-Semitism, Judaism, Jews, Department of Education, Office for Civil Rights, OCR, Dear Colleague Letter

JEL Classification: J71, J78, I28

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Date posted: April 18, 2011  

Suggested Citation

Marcus, Kenneth L., The New OCR Antisemitism Policy (April, 17 2011). Journal for the Study of Antisemitism, Vol. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1813192

Contact Information

Kenneth L. Marcus (Contact Author)
The Louis D. Brandeis Center for Human Rights Under Law ( email )
1776 I Street, N.W., Suite 900
Washington, DC 20006
United States
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