As campuses across the country continue to see protests surrounding the Israel-Hamas conflict, a relatively unknown 2019 presidential executive order is poised to spark a wave of student legal claims against universities. Attorneys, ranging from white-shoe corporate firms to Jewish advocacy groups, are meeting with students who believe their schools are not adequately protecting them from anti-Semitic or anti-Israel behavior.
In 2019, former President Donald Trump signed an order directing federal officials to broaden the interpretation of Title VI of the 1964 Civil Rights Act, including “discrimination rooted in anti-Semitism” as a form of prohibited discrimination based on race, color, and national origin for federally funded programs. Trump issued the order in response to a series of violent incidents targeting Jews, such as the 2018 Pittsburgh synagogue shooting and the 2019 attack at a Kosher supermarket in New Jersey.
Title VI of the 1964 Civil Rights Act does not explicitly mention “religion” as a basis for discrimination. However, legal experts explain that federal officials have progressively expanded the interpretations to include ethnoreligious groups.
Under the executive order, federal agencies were advised to consider using the International Holocaust Remembrance Alliance’s (IHRA) definition of anti-Semitism, which includes attributing collective responsibility to Jews for the actions of the state of Israel and drawing comparisons between contemporary Israeli policies and those of Nazis. However, this definition has garnered criticism from Jewish and non-Jewish groups who argue that it conflates broad criticism of Israel with anti-Semitism.
On January 19, 2021, the day before leaving office, the U.S. Department of Education released a memo providing guidance on what constitutes anti-Semitism in educational settings. NBC News discovered that the department currently has 15 pending cases related to race or national origin. The most recent case was filed against Oberlin College in Ohio just before the Hamas attacks on Israel. Melissa Landa, an alumna of the college, filed the complaint after the school failed to intervene when a professor allegedly described Israel as an “illegitimate settler colonial apartheid regime.”
Students like Landa believe that filing Title VI complaints can result in federal funding being withheld from universities, which may prompt action. Landa hopes her complaint will set an example for others.
A spokesperson for the Department of Education stated that since the Hamas attack on Israel, they have noticed an increase in complaints and are reviewing them all.
Lawyers report receiving numerous calls from Jewish college students and their parents nationwide, seeking representation in Title VI claims. Kenneth Marcus, former head of the U.S. Department of Education’s Office for Civil Rights under the Trump and George W. Bush administrations, has seen an overwhelming number of cases. Marcus now heads the Brandeis Center for Human Rights, a nonprofit focused on protecting Jewish civil rights.
Marcus’s organization has previously filed Title VI complaints against the University of Vermont and the State University of New York at New Paltz on behalf of Jewish students who felt their universities tolerated anti-Semitism on campus. The Department of Education’s Office for Civil Rights found that the University of Vermont failed to investigate claims of anti-Semitism and neglected to address whether such complaints created a hostile environment for Jewish students. The university later signed an agreement promising reforms. SUNY-New Paltz is currently under investigation.
Brandeis Center has advocated for expanding Title VI protections to cover other ethnoreligious groups, such as Sikhs and Arab Muslims. However, Trump’s executive order in 2019 focused solely on protecting Jews.
In September, President Joe Biden acknowledged that Title VI also prohibits Islamophobia in federally funded programs. However, unlike the memo on anti-Semitism, the Department of Education has not released a detailed definition of Islamophobia.
Gadeir Abbas, a senior litigation attorney with the Council on American-Islamic Relations (CAIR), states that his team is preparing discrimination complaints on behalf of Muslim and pro-Palestinian students who face unfair accusations of supporting terrorism or being sympathetic to Hamas. Abbas argues that pro-Israel groups see Title VI claims as a way to target student groups advocating for Palestinian rights, potentially censoring or punishing them.
Abbas emphasizes that students, like all Americans, have the right to protest in the United States, and the First Amendment prevails over Title VI in any conflict between the two.
Three weeks before the Hamas attacks and ensuing protests on American campuses, Palestine Legal, an organization advocating for Palestinian rights, filed a Title VI complaint with the Department of Education. Attorneys demanded a federal investigation after the University of Illinois Chicago allegedly banned students with Arab-sounding names from attending an informational session about a university-sponsored Israel study-abroad program in January 2023.
Legal experts anticipate that the majority of future Title VI cases will be filed by Jewish students against universities. According to the Anti-Defamation League, incidents of harassment, vandalism, and assault against Jews have increased by 388 percent nationwide compared to the previous year.
The Lawfare Project, a nonprofit representing Jewish clients, has been one of the most vocal proponents of Title VI for Jewish students since October 7. The organization has met with Jewish students on campuses, sought cases through Jewish WhatsApp groups, and used its social media accounts to recruit young clients.
Lawfare senior counsel Gerard Filitti states that after October 7, they were inundated with students reaching out to them for assistance. The organization’s phones have been ringing nonstop.
Georgetown Law student Julia Wax, who attended a recent pro-Israel rally at Columbia University, is in talks with Lawfare to file a Title VI lawsuit against her law school, alleging that pro-Palestinian student organizations publicly support Hamas. Wax believes Georgetown should create an open forum for discussing the conflict and adopt the IHRA definition of anti-Semitism.
In February 2020, Lawfare represented one of the first Jewish college students to file a Title VI complaint against a university following Trump’s executive order. Jonathan Karten, a former Columbia University student, claimed he faced harassment by members of the campus group Students for Justice in Palestine. Karten’s complaint highlighted instances where he was called racist and a Zionist pig.
