“What does it mean to be a Jew?” asks Kenneth L. Marcus in the introduction to Jewish Identity and Civil Rights in America (6). “What does it mean to be an anti-Semite?”
For academics, these are the kinds of questions that provoke interesting discussions, in which no one expects to win agreement on precise answers. For Marcus, though, these questions must have precise answers—the status and safety of Jewish students at publicly funded colleges, universities, and schools depends on them. Answer the questions one way, and Jewish students win the protection of U.S. civil rights laws regulating educational institutions; antisemitism on campus will be subject to the full civil rights enforcement powers of the U.S. government. Answer the questions another way, and Jewish students risk “the loss of fundamental rights” (6), unprotected from increasingly widespread and intense antisemitism.
Marcus writes as a bureaucrat, activist, and academic. As former head of the Office for Civil Rights of the U.S. Department of Education and former staff director at the U.S. Commission on Civil Rights, he sees civil rights enforcement “paralyzed…in cases of anti-Semitism” (6) because the main civil rights statute affecting educational institutions—Title VI of the Civil Rights Act of 1964—prohibits discrimination on the basis of race, color, and national origin, but not religion. Because Jews, according to the conventional view, are simply a religious group, Title VI leaves them unprotected. When pro-Israel campus exhibits are defaced and destroyed, pro-Israel speakers shouted down, and criticism of Israel turns rabidly anti-Zionist and sometimes blatantly antisemitic, the federal response to complaints that Jews are being discriminated against has been that nothing can be done.
Marcus disagreed, and set himself the task of winning an interpretation of Title VI expansive enough to protect Jews. He pressed for an expansive interpretation while in government, and more recently, as a professor at the School of Public Affairs, Baruch College, City University of New York, through a series of publications culminating with Jewish Identity and Civil Rights in America.
Marcus's approach is bold—Jews are entitled to the protection of Title VI because, in legal terms, they are a race. Knowing that this claim will be unsettling—Jews know all too well where discussions of a “Jewish race” can lead—Marcus nevertheless argues that a strong case can be made for considering Jews a race in American civil rights law and much can be gained from winning the law's protection.
Because Jews are not usually considered a race in the United States, Marcus knows it will be difficult indeed to convince the federal bureaucracy, the judiciary, and Jews themselves that Jews are a race. His approach, therefore, is broad and incremental, as he presents one perspective suggesting Jews are a race, and then another, and then another.
His first perspective is “originalist.” The Civil Rights Act of 1866—still important today—states that everyone in the United States and subject to its jurisdiction is to “enjoy” the same rights as white citizens. In exploring who in 1866 was considered white and who was not, the U.S. Supreme Court concluded in 1987 that the 1866 law meant to treat as nonwhite (and thereby protect) “many ethnic and ancestral groups, including Jews and Arabs” (27), considered white today, and that when interpreting the law, its authors' intent should be taken as definitive. Jews, at least under this law, are not white, and have the same legal recourse as other victims of racial discrimination.
A second perspective is genetic. Even though claims that Jews are a race seem to have been discredited long ago, “it is no longer possible to study the question of Jewish racial identity without taking account of new research suggesting that members of Jewish population groups may indeed exhibit a family of genetically related attributes” (120). Put simply, there are genetic markers common among Jews consistent with notions of race.
There is a subjective perspective as well. Discriminatory actions against Jews, Marcus argues, should be considered racial discrimination if the perpetrators think of Jews as a race. In chapter after chapter, Marcus adds arguments to buttress his claim that Jews are (or are considered) a race, and he concludes (191) that “however the question is framed, anti-Jewish discrimination is ‘discrimination because of…race’” as Title VI uses that term.
If the reader is not yet convinced, Marcus brings to bear yet another point of view. Jews, he writes, do not fit precisely into any of the conventional categories of civil rights law—religion, race, or national origin. He has concluded that Jews are a race, but the categorization does not seem entirely right to him. Indeed he winds up arguing that the conventional categories of civil rights legislation should not be seen as discrete categories at all, but rather as “a single undifferentiated totality” (196). “Collectively, they represent the categories of disadvantaged otherness as that phenomenon, however phrased, was understood during the Civil Rights Era” (197).
It is here that Marcus goes wrong, in a way indicative of a problem with the whole book. History matters as well as law, and historically the conventional categories were indeed discrete. They appear together in hundreds of bills, from the time the first recognizably modern civil rights bills were introduced in Congress in the mid-1940s until enactment in the 1960s, not because they represented categories of “disadvantaged otherness,” but because there were identifiable organizations and individuals making sure that each one was included. For race, this meant the civil rights establishment, particularly black and Jewish groups; for religion, Jewish organizations; for national origin, Senator Dennis Chavez of New Mexico and his concerns about Mexican Americans.
Some recent critiques of the American Jewish leadership have focused on what is described as their excessive commitment to insider tactics and, because so many national leaders are lawyers, to legal tactics. The same critique may be applied to Jewish Identity and Civil Rights in America. Marcus takes a significant problem and addresses it almost entirely from a legal perspective: progress will be made by getting laws interpreted favorably; and indeed getting laws interpreted favorably may well require the approach he adopts—piling technical argument upon technical argument in the hope of being convincing in court, even if the desired result runs counter to common sense.
This approach will not solve the problem he sets out at the beginning of the book: antisemitism on campus. Each separate legal argument is so arcane that their sum seems more diffuse than convincing. But beyond that, while a legal approach may be helpful, such an approach can rarely bring about major change on its own. The civil rights movement found that the NAACP's legal strategy, adopted for good reasons, could have only a limited impact; past a certain point, progress depended on the marches and demonstrations of the civil rights movement, massive changes in public attitudes, and the support of vast numbers of individuals and organizations. Jews on campus could use more legal protections. But fighting anti-Zionism and antisemitism also requires organizing by students, professors, and staff; reframing of debates so that antisemitic speech is seen for what it is and not defended in the name of academic freedom; and the exertion of pressure by local leadership, alumni, scholarly organizations, donors, and everyone else concerned about maintaining a discourse on campus that is lively and fair. Some of these activities are already occurring; more are needed.
Kenneth Marcus has given us a book that is thoughtful and impassioned, creative and careful, erudite and provocative. Everyone concerned about vicious anti-Zionism and antisemitism on campus should read it. And everyone should also await a comparable book about what occurs and should occur on campuses outside the legal arena, as the struggle over Zionism and the security of Jews on campus continues.
