Projects: The Legal Rights of Jewish Students as a Religious Minority

Considerable progress toward official recognition of Jewish students’ rights under civil rights legislation has been made. This position will be clearly laid out and defended in legal papers, articles and books authored by Kenneth L. Marcus.

Jewish Identity and Civil Rights in America

This book demonstrates that Jewish students have important civil rights which should be, but are not, currently protected by the Office for Civil Rights (OCR) under Title VI of the Civil Rights Act of 1964. The book will also explore the problem of anti-Semitic harassment as it has developed on American campuses. It will draw on some of the academic articles described below.
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Letter to Education Secretary Regarding Anti-Semitic Intimidation on Campus

In March 2010 U.S. Secretary of Education Arne Duncan delivered a major address in which he announced that his department would significantly step up enforcement of civil rights laws. Taking him at his word, the Institute for Jewish & Community Research joined a dozen other major Jewish organizations in urging Secretary Duncan to provide Jewish students with civil rights protections under Title VI of the Civil Rights Act of 1964. This joint letter is a significant event, because it reflects the emergence of a broad-based coalition of Jewish communal organizations pushing the Obama administration to reverse the position which it previously took on anti-Semitism in higher education – and to make good on the pledge which Secretary Duncan has just made.
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Jurisprudence of the New Anti-Semitism

This academic law review article, published in Spring 2009 by the Wake Forest University Law Review, demonstrates the legal harm or wrongfulness of anti-Semitic harassment in higher education. In particular, it explains why some anti-Zionist activity rises to the level of legal actionable behavior. This article was the most frequently downloaded Higher Education Law article in the authoritative Social Science Research Network for the period in which it was initially posted.
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Anti-Semitism and Racism

This 2009 presentation at Yale University explores the various theories under which anti-Semitism claims may be considered by OCR or a reviewing court. Further, it demonstrates that some forms of anti-Semitism may be actionable under any of these theories. Both the written paper and a videotape of the oral presentation remain available on Yale’s website, and a revised version will be published in an edited volume published by Yale University Press.
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The Second Mutation: Israel and Political Anti-Semitism

This short article, intended for a general audience, describes the evolution of anti-Semitism from religious to racial to political, describing the dangers of the new anti-Semitism on American college campuses. It was originally published in 2008 in the Jewish Policy Center’s inFocus magazine and later republished in the Scholars for Peace in the Middle East’s Faculty Forum.
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Privileging and Protecting Schoolhouse Religion

This 2008 law review article, published in the Journal of Law & Education, makes the case for legislation to prohibit religious discrimination in education. The article is based on an invited presentation delivered at the annual meeting of the American Association of Law Schools for a joint panel of the Law & Religion and Law & Education sections.

To what extent does federal law protect public school students from religious discrimination? Intuitively, one would expect children victimized by religious hate, bias, and other discrimination to enjoy the apex of protections afforded under our constitutional system.

Structurally, they are victimized at the convergence of the First and Fourteenth Amendments, denied not only the Constitution's "first freedom" but also the very interest in equal educational opportunity that has been constitutionally preeminent since Brown v. Board of Education.

Moreover, school-age children may be peculiarly vulnerable to the sting of hate and bias incidents, so it is especially important to provide them with the full extent of constitutional support. Nevertheless, students of faith have not always received a level of protection commensurate to the importance of the interests at stake.

Our research demonstrates that equal opportunity for religious minority students requires, in practical terms, administratively enforced, statutory anti-discrimination protections and reasonable accommodations for student religious needs.
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