32 No. 72 JUSTICE 1. The U.S. National Strategy strengthens the enforcement of existing laws, including hate crimes legislation and civil rights violations. It calls on the judicial system and law enforcement to ensure robust prosecution of antisemitic hate crimes under federal, state, and local laws.36 The strategy also reminds federal agencies of their duty to apply U.S. civil rights laws and investigate complaints alleging discrimination to protect individuals in federally funded programs and institutions. One week before the October 7 terrorist attacks, on September 28, 2023, eight federal agencies clarified – for the first time in writing – that Title VI of the Civil Rights Act of 1964 “prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities. These wideranging protections provide important tools to curb discrimination based on shared ancestry or ethnic characteristics and to better protect the civil rights of all Americans.”37 Two weeks after the October 7 attacks, the Department of Education’s Office for Civil Rights (OCR) updated their complaint form to make it easier to report antisemitic and other bias incidents in schools and on campuses, and in May 2024, OCR released a new “Dear Colleague Letter” offering concrete examples of unlawful discrimination under Title VI of the Civil Rights Act of 1964.38 However, the difficult issues that fall between freedom of speech and the civil rights laws have yet to be adjudicated, and processing a complaint can take well over two to three years – often after the students have left the campus.39 Greater urgency and increased resources are necessary, especially knowing that 24% of current or recent Jewish college students have felt uncomfortable or unsafe at a campus event in 2023 because they are Jewish and one in five (20%) reported feeling or being excluded from a group or event because they are Jewish – an eight percentage point increase in one year (up from 12% in 2022).40 In addition, the strategy reminds employers and employees of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, and national origin by employers with 15 or more employees.41 For American Jewish adults who are employed full-time or part-time, and not self-employed, 15% have avoided wearing or displaying something that would identify them as Jewish because of fears of antisemitism and 13% have felt uncomfortable or unsafe at work because of their Jewish identity in the last year.42 Other federal civil rights laws referenced include the Fair Housing Act (1986), the Equal 36. Compared to some European Jewish communities, for instance, American Jews are more willing to use federal laws to file complaints. Nevertheless, there remains a reluctance of Jews to come forward and file either civil or criminal complaints. For example, only 21% of American Jews who were personally targeted by antisemitism in 2023 reported the incident; 79% did not report. Supra note 30. 37. White House Press Release, “Fact Sheet: Biden-Harris Administration Takes Landmark Step to Counter Antisemitism,” THE WHITE HOUSE (Sept. 28, 2023), available at https://www.whitehouse.gov/briefing-room/ statements-releases/2023/09/28/fact-sheet-biden-harrisadministration-takes-landmark-step-to-counterantisemitism/; see also supra note 1, at 55. The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin. Title VI of the Civil Rights Act prohibits discrimination specifically in programs or activities receiving federal financial assistance. The Office of Civil Rights within the U.S. Department of Education also refers complaints of discrimination based exclusively on religion to the U.S. Department of Justice, which has jurisdiction to respond to certain complaints of religious discrimination in public schools. 38. “Discrimination Complaint Form,” UNITED STATES DEPARTMENT OF EDUCATION, available at https://www2. ed.gov/about/offices/list/ocr/complaintform.pdf; see also “Dear Colleague Letter: Protecting Students from Discrimination, such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics,” UNITED STATES DEPARTMENT OF EDUCATION (May 7, 2024), available at http://t1.info. ed.gov/r/?id=h957216,bdabfe,bdb99c 39. The content of this footnote, removed for brevity, is available at IJL website: https://bit.ly/Huffnagle 40. Supra note 30. After October 7, only 46 percent of Jewish students felt physically safe on campus compared to 67 percent who said they felt physically safe before October 7. “Campus Antisemitism: A Study of Campus Climate Before and After the Hamas Terrorist Attacks,” ANTIDEFAMATION LEAGUE (Nov. 29, 2023), available at https://www.adl.org/resources/report/campusantisemitism-study-campus-climate-and-after-hamasterrorist-attacks/ 41. Title VII of Civil Rights Act of 1964, 42 U.S.C. § 2000. (The prohibition on religious discrimination requires employers to provide reasonable accommodation of workers’ religious practices, unless doing so would place an undue hardship on the business.) Supra note 1, at 56. 42. Supra note 30.
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