Special thanks to Ken Marcus for sending this article to the OCITF and for mentioning the OCITF in his upcoming new book.
By Kenneth L. Marcus IJCR Quad
Director, Initiative to Combat Anti-Semitism and Anti-Israelism in America’s Educational Systems
When the U.S. Office for Civil Rights closed its landmark anti-Semitism investigation of the University of California at Irvine, Irvine officials proclaimed that their institution had been fully exonerated. For example, Irvine’s law school dean, Erwin Chemerinsky, insisted that “The Office for Civil Rights of the United States Department of Education did a thorough investigation and concluded that there was no basis for finding that there was a hostile or intimidating environment for Jewish students on campus at the University of California, Irvine.” It should have been clear to Chemerinsky that he was, at the least, overstating his case because OCR had dismissed several of the Zionist Organization of America’s claims on technical grounds such as the statute of limitations. In fairness to Chemerinsky, however, he may not have understood just how misleading his characterization turns out to have been.
What Chemerinsky and his colleagues do not mention (and what the public does not know) is that career OCR officials had determined in 2005 that a hostile environment had developed at Irvine in violation of Title VI. The career officials were not inclined to proceed against Irvine because they believed in 2005 that Irvine had taken sufficient actions after the fact to avoid federal liability. On the other hand, the regional director who oversaw the investigation, Arthur Zeidman, also believes that subsequent developments at Irvine show that the administration had not responded adequately. If the OCR’s regional office had not been overruled, it likely would have formed the basis for a finding of discrimination against Irvine in 2006, 2007, or 2008, when continuing problems revealed the depth of the problem there. Instead, OCR’s political leadership reversed the regional office’s determination and issued an opinion that did not find that a hostile environment had formed. Behind the scenes, the conflict between OCR’s headquarters and its San Francisco office was both heated and ugly, ultimately resulting in bold allegations, harsh recriminations, widespread finger pointing, extraordinary disciplinary action, and still-pending internal litigation.
How did OCR come to its ultimate tortured resolution? After my departure from OCR, the agency’s new leadership — first, Deputy Assistant Secretary David Black and, later, Assistant Secretary Stephanie Monroe — were less inclined to protect Jewish students from anti-Semitic harassment, but they also were reticent to make their position clear. From the regional staff perspective, headquarters placed them under great pressure but provided little policy direction. As Regional Counsel Paul Grossman complained, “It was pathetic to try to reach a legally sound conclusion to the Irvine investigation without headquarters guidance on the scope of our national origin jurisdiction but that, originally, is what our office was told to do.” So they muddled through under Regional Director Arthur Zeidman’s command, trying to read what tea leaves Washington might provide. Given the paucity of guidance they had received from Washington, the San Francisco office was proud of its work on this case. Art Zeidman’s top deputy, Charlie Love, comments that it was “probably one of the best investigations” that the office had conducted, “given that it was a novel area and something that required a degree of discipline and innovation and skill.”
In December 2005, Zeidman sent his final report to Washington. The San Francisco office had determined that “the totality of the circumstances at UC-Irvine constituted a hostile environment based on national origin.” In other words, regional staff concluded that Zionist Organization of America’s Director of the Center for Law and Justice Susan Tuchman was right that Irvine students faced levels of discrimination that were so severe, pervasive, or objectively offensive as to limit their educational opportunities. San Francisco officials actually had drafted, revised, and prepared in final form a letter to Irvine informing campus leadership of their findings. This was sure to send shock waves through the higher-education community: OCR’s first investigation of systemic anti-Semitism in higher education had resulted in a finding that a hostile environment for Jewish students had formed on a major campus in the University of California system.
San Francisco, however, was not prepared to find Irvine in violation of Title VI at this point in time. Reviewing the actions that Irvine had taken to address the campus climate, San Francisco determined that it had done enough: “UC-Irvine took adequate steps to address the hostile environment, and was therefore in compliance with Title VI.” In other words, Zeidman had split the baby: The Irvine campus would be revealed as a hotbed of anti-Semitism, but its senior administrators would be acquitted for the actions that they had undertaken. As Zeidman looks back on the case, he believes that this finding in 2005 would have led to the opposite result in 2006 or 2007. In other words, if he had resolved the case in this manner at the time, the recurrence of anti-Semitism over the next two years at Irvine would have demonstrated that Irvine’s response had not in fact been sufficient. If Tuchman urged OCR to reopen the case at that time, Zeidman likely would have had to concede that Irvine’s response was not in fact sufficient and that it was fully in violation.
Zeidman wanted to decide the case right away because he considered it to be thoroughly investigated and ripe for decision. Instead, Zeidman got no response until the following summer. One reason for the delay, according to Black, was my work at the commission. Zeidman had sent his proposed resolution to Washington only one month after the commission held its November 2005 public briefing on campus anti-Semitism. This gave the issue a heightened level of public attention, which some media outlets had begun to attend to. Monroe saw the commission’s work as an effort to promote OCR’s 2004 policy. Both Monroe and Black thought the issue was too hot to handle at that time. As Black explained in an e-mail to Monroe, “This was a couple weeks after things started to heat up with the Commission and not a good time to close without violations, without interviewing all the [Z]OA witnesses.”
In July, David Black finally voiced his displeasure. Although he did not say so at the time, Black thought that the Irvine case never should have been opened in the first place. His basic view was that anti-Semitism cases were religious matters that should be handled by another agency. Black’s position on the Irvine case was quite simple: “The allegations in the UC Irvine case were religious discrimination” and “OCR doesn’t have jurisdiction over religion. . . . ” He would have preferred to send the case to the Justice Department, if it would take it, for consideration under its discretionary jurisdiction. Stephanie Monroe, however, indicated that she wanted OCR to handle the matter itself rather than shipping it off to another agency.
Rather than giving Zeidman policy guidance, however, Black told him that the investigation was incomplete and sent him back to reinvestigate. Black wanted more careful scrutiny of jurisdictional and timeliness issues, as well as more emphasis on unequal treatment and less on the question of hostile environment. Black also insisted that Zeidman’s staff “investigate whether Jewish students were Americans or of Israeli origin.” While Black maintained that he wanted further investigation, the San Francisco perspective was just that he wanted different investigation and that they never entirely understood the different direction in which he wanted them to move. In retrospect, Zeidman believes that from that point on, Black’s effort’s goal was mainly “to undermine the investigation,” making it more difficult for Zeidman’s staff to resolve.
In August, Susan Tuchman complained in a letter to Stephanie Monroe that Zeidman’s staff, in all the time that had passed, had not interviewed a single Irvine administrator. “This is deeply disturbing,” Tuchman admonished, “and raises questions about how vigorously OCR is investigating the ZOA’s complaint against UCI.” Tuchman was nervous that the long delay suggested that OCR was looking for a way to bury the case. Certainly, she did not know that San Francisco’s proposed resolution would have vindicated her position. Ironically, Tuchman did not imagine that the streamlined quality of the investigation reflected that San Francisco officials found the hostile environment at Irvine to be so obvious that it could be demonstrated through only a limited number of data requests and interviews.
Senior OCR officials say they were very upset to read in Tuchman’s letter about how cursory Zeidman’s investigation had been. David Black blasted Zeidman over the phone for not doing a more thorough job of investigating the case. It is difficult to determine whether Black was angrier with Zeidman about the brevity of his investigation or about the conclusions that he had reached. For the record, though, Black criticized Zeidman because his proposed closure letter “was based primarily on UC-Irvine’s response to OCR’s data request and records provided by . . . [Tuchman] with practically no independent corroboration of this information.” Although Black knew that Zeidman’s investigators had interviewed 16 Irvine students, Black was indignant that Zeidman had not interviewed Irvine’s administrators, relying instead on their answers to written requests.
Later, Black admonished Zeidman further in a meeting in Washington. “And he criticized the — the work on the U. C. Irvine case,” Zeidman recalls. “He was very blunt with me and ever so critical.” In Zeidman’s view, no further investigation was required because the facts the office had obtained spoke so clearly for themselves. Perhaps, he speculated, Black was simply delaying the process because he could think of no better way to avoid resolving the case in Tuchman’s favor, given just how bad things had gotten at Irvine. When Zeidman defended his staff’s handling of the Irvine case, Black “lost all confidence” in him and decided based solely on this case that he should rate Zeidman’s performance for agency’s annual rating period as “Minimally successful.” This was the first unsatisfactory rating that Arthur Zeidman had received in his long and distinguished career.
Despite their concerns, headquarters staff prepared a letter for Assistant Secretary Stephanie Monroe’s signature assuring Tuchman that its complaint “is being investigated in a rigorous and complete manner.” Needless to say, Monroe did not inform Tuchman that the case had been dormant between December 2005 and July 2006, nor did she inform Tuchman that Black was expressing precisely the opposite view in his disparagement of Zeidman. Most important, Monroe gave Tuchman no inclination that her career staff had determined that Tuchman was right but that she and her political appointees were in the process of overruling them.
Later in August, Black arranged separate meetings with Zeidman, Love, and Grossman during breaks in an agency-wide training session held in New Orleans. Although accounts of the New Orleans meetings differ, Love recalls that on August 16, in front of several OCR managers at a New Orleans restaurant, Black told him that he was holding Zeidman responsible for making “bad decisions” on another case. During this meeting, Love recalls, “Black made it very clear that he did not like” Art Zeidman. Black told Love that the agency made a mistake in hiring Zeidman, that Zeidman could not do the job, and that Love should have gotten the job instead. Love remembers that Black told him that he wanted to fire Zeidman and that he was going to start by formally disciplining him. Black later acknowledged that it was “unprofessional” and “a lapse in judgment” to badmouth Zeidman around the agency — especially to Zeidman’s subordinate. Although Black denies it, Love swears that Black warned him not to get in his way as he moved to terminate Zeidman.
Black delivered the formal reprimand that he had threatened, simultaneously disciplining both Zeidman and Grossman. Although Black based his criticisms on another of their high-profile cases, Zeidman is convinced that Black’s actions were based on his disdain for the manner in which Zeidman was conducting the Irvine case. Under intense Washington pressure, San Francisco then moved to investigate the Irvine case with exceptional vigor, sending investigators to conduct a large number of interviews and to personally attend some of the events at which anti-Semitic invective was expected.
This was an odd by-product of a conflict in which Zeidman argues that Washington officials were attempting “to coerce me to find a way to close the investigation on a misinterpretation of the law or on an unjustified technicality.” If the San Francisco officials’ perceptions were even partially accurate, there can be several reasons why Washington officials, desiring to close the case and dismiss the charges, would order an extensive and time-consuming investigation. Stephanie Monroe has admitted that she was reluctant, for political reasons, to conclude the case while the Civil Rights Commission was focusing public attention on the issue. Given the commission’s sensitivity to the anti-Semitism problem and its endorsement of the 2004 policy, Monroe’s admission makes sense only to the extent that she was planning to resist the 2004 policy and to minimize (or refuse to deal with) the anti-Semitism problem. Moreover, new data were needed because otherwise OCR would be in the awkward position of issuing a decision antithetical to the result that its own investigators had reached on the same record. Restarting the investigation would both delay the resolution and build a new record, and the resulting delays could be blamed on the San Francisco office.
In June 2007, under congressional pressure, Black sent four highly respected OCR lawyers to quickly wrap up the case. Black’s concerns were clear to these officials. The most senior of the four, Randy Wills, headed OCR’s New York regional office and would later be appointed director of enforcement. Wills does not recall Black expressing dissatisfaction with the thoroughness of San Francisco’s investigation. Black made clear to Wills, however, that he was not pleased with the San Francisco office’s conclusions. Specifically, Wills recalls, Black “was not pleased with the determination that some of these incidents, anti-Semitic incidents, allegedly perpetrated against Jewish students who were born in America constituted national origin discrimination, such that they would be subject to our jurisdiction.” Clearly, then, this new legal team understood that it would need to reach different conclusions, one way or another, despite the findings of the investigators.
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