President Donald Trump signed an executive order Wednesday meant to address concerns of anti-Semitism on college and university campuses. But the legal underpinnings of that order apply to elementary and secondary schools, too.
The order comes as the administration has sought to step up efforts to monitor discrimination against Jewish students, including calling for more data on religion-related bullying incidents in K-12 schools.
Concerns about all forms of hate have been top of mind for many school administrators in recent years. A 2018 Education Week analysis of over 500 reported incidents of hate in schools, for example, found swastikas were the most common hate symbol reported.
What Trump’s Executive Order on Anti-Semitism Does
The executive order does two primary things:
- Asserts that Title VI of the Civil Rights Act of 1964, which prohibits discrimination “on the basis of race, color, and national origin” in education programs that receive federal funding, may apply to Jewish students. “The executive order does not define Jews as a nationality,” presidential adviser Jared Kushner wrote in a New York Times opinion piece. “It merely says that to the extent that Jews are discriminated against for ethnic, racial, or national characteristics, they are entitled to protection by the anti-discrimination law.”
- Asserts a non-legally binding definition of anti-Semitism adopted by the International Holocaust Remembrance Alliance in 2016.
Title VI and K-12 Schools
While Trump focused his remarks Wednesday on higher education environments, Title VI applies to elementary and secondary schools as well. The U.S. Department of Education’s office for civil rights has said a school may be found in violation of the civil rights law if it doesn’t adequately respond to student harassment or bullying on the basis of race, color, and national origin.
No federal education law specifically prohibits religious descrimination. But previous administrations have asserted that Title VI may also apply to discrimination against students from certain religious groups, particularly when real or perceived religious affiliation may be comingled or closely associated with race or national origin.
Title VI has been applied in past cases of anti-Semitism in K-12 schools. In 2015, the Pine Bush, N.Y., district agreed to a nearly $5 million settlement after Jewish students argued it had violated their rights under Title VI by overlooking slurs, physical intimidation, and students taunting them with nazi salutes.
A 2010 “Dear Colleague” letter issued by the Obama administration outlined K-12 schools’ responsibilities to respond to bullying. It included an example of a hypothetical middle school where administrators didn’t take action after they found swatsikas scrawled on a bathroom wall and didn’t properly respond when students taunted their classmates because they thought they were Jewish, leading some Jewish students to feel unsafe and avoid parts of the school. From that guidance:
The school administrators failed to recognize that anti‐Semitic harassment can trigger responsibilities under Title VI. While Title VI does not cover discrimination based solely on religion, groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith. These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs). Thus, harassment against students who are members of any religious group triggers a school's Title VI responsibilities when the harassment is based on the group's actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members' religious practices. A school also has responsibilities under Title VI when its students are harassed based on their actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity."
In 2004, the George W. Bush administration issued a “Dear Colleague” letter, urging schools to respond to reports of religious-based discrimination.
“As we pass the third anniversary of September 11, 2001, we must remain particularly attentive to the claims of students who may be targeted for harassment based on their membership in groups that exhibit both ethnic and religious characteristics, such as Arab Muslims, Jewish Americans, and Sikhs,” said that letter, which was signed by Kenneth L. Marcus, who was then the deputy assistant secretary for enforcement in the Education Department’s civil rights office.
Marcus, who has long expressed concerns about anti-Semitism, is now the assistant secretary of education for civil rights for the Trump administration. In the interim, he served as general counsel of the Louis D. Brandeis Center for Human Rights Under Law, a Jewish civil rights organization.
In a 2017 opinion piece for Politico, Marcus advocated for the Education Department to adopt the definition of anti-Semitism included in Trump’s executive order this week. A more formal definition would empower the federal agency to recognize and respond, he argued, again focusing his argument on college and university campuses.
A bipartisan bill issued for several consecutive congressional sessions also urged adoption of that definition. While that measure had broad support in the past, some critics argued this week that the Trump administration’s order could be used to chill criticisms of Israel on college campuses, threatening students’ free speech rights.
More Data on Religion-Based Bullying
The executive order comes three months after U.S. Secretary of Education Betsy DeVos proposed adding a new question about religious harassment and bullying in schools to the surveys used to create the Civil Rights Data Collection, a massive trove of information about how students are treated in K-12 schools.
The new question would require data on religious harassment to be disaggegated by 14 religion categories identified in the 2015 Federal Bureau of Investigation manual (page 19) for hate-crimes investigations, which include Judaism. In the past, the survey has asked about harassment on the basis of religion in general, but it has not required schools to break that information down by specific religious groups. Harassment data collected by the office for civil rights has proven notoriously tricky to parse in the past.
It’s important to remember that schools can’t ask students about their religion or their sexual orientation. The proposal makes it clear that the harassment and bullying can be on the basis of “perceived religion” as reported by the school, regardless of whether a student is actually a member of that religion.
Public comments responding to that data proposal were a mix of mostly praise and some caution.
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