An Advocate for Israel Draws Fire as He Nears Confirmation to Civil Rights Post
Posted January 18, 2018 5:13 p.m. EST
WASHINGTON — Students at the University of Wisconsin-Madison had gathered last spring to consider a resolution calling on the university to divest in companies and countries that abuse human rights, profit from the “military-industrial complex” and promote fossil fuels when the debate jumped the rails.
Soon, the students were in a full-scale battle over whether the resolution should cover Israel, with charges of anti-Semitism and racism rattling the room. A student representative who was Jewish said that the last-minute inclusion of Israel “crossed the line from legitimate conversation to a point where I consider it malicious.” The student government chairwoman, who is black, suggested the opposition to the resolution amounted to “white supremacy,” which she condemned with a four-letter expletive.
In the aftermath, Kenneth L. Marcus, the founder and president of the Louis D. Brandeis Center for Human Rights Under Law, decided to enter the fray, writing to university administrators to denounce calls for divestment from Israel as anti-Semitic, and to assail the meeting as hostile toward Jewish students. He urged that the black student leader be disciplined.
On Thursday, Marcus received the approval of the Senate Health, Education, Labor and Pensions Committee to be President Donald Trump’s assistant secretary for civil rights in the Education Department, a prestigious post known more for policing racial bias and sexual violence in schools than refereeing the battles over Israel and Palestinian rights on the nation’s university campuses.
Marcus’ support for Jewish students has earned him praise in some quarters as an ardent defender of civil liberties with an acumen for the rule of law.
On campus after campus, the BDS movement — Boycott, Divest and Sanction Israel — has driven a wedge between Jewish students and students of color, challenging university administrations and straining the traditional bonds between Jews and other minorities. And Marcus has not been shy in choosing sides.
Critics see him as a biased crusader whose singular focus on what he believes to be rising anti-Semitism on the campus left will further impede the Education Department’s already tentative efforts to enforce civil rights protections for marginalized groups of students.
“What I find particularly troubling is he condemned a black woman on a predominantly white campus for pointing out my oppression,” said Carmen Gosey, who was chairwoman of the Associated Students of Madison, the Wisconsin student government, at the time of the battle there last year.
His approach to the debate at the university “shows he doesn’t understand racism, or he has an issue with black people talking about issues, or anyone who isn’t Jewish talking about their issues, which seems very problematic for someone who is going to be in charge of civil rights,” she said.
Ariela Rivkin, the Jewish student representative on the council, felt differently. She and other students felt targeted by Gosey’s comments and believed that her decision to allow the divestment legislation to be introduced on the Jewish holiday of Passover was harassing and exclusionary.
Marcus’ intervention “meant everything to me,” said Rivkin, who strongly backed Marcus’ nomination to head the Education Department’s civil rights office. “Whoever is in that role should be able to recognize that I have a right to express myself in a hostile-free environment.”
For his part, Marcus, a career civil liberties lawyer, says he would show no bias in his approach to civil rights enforcement. During his confirmation hearing last month, Marcus said he could “think of no higher calling than to enforce the principles of equal justice and provide greater opportunities for students across this great country.”
Marcus was delegated the authority of assistant secretary for civil rights for two years in the George W. Bush administration where he reinforced protections for women and Jews as well as Muslims and Sikhs who faced religious discrimination in the wake of the attacks of Sept. 11, 2001.
If confirmed by the full Senate, Marcus would return to the high-profile office at a turbulent time. Issues of race, religion, sexual identity and freedom of speech are roiling elementary, secondary and higher education. Education Secretary Betsy DeVos is under fire for Trump’s attitudes toward and treatment of immigrants and minority groups, and her own re-examination of Obama-era rules to protect against sexual assault and race discrimination in special education placements is controversial. “To me, he is more dangerous than she is,” said Maya Berry, executive director of the Arab American Institute, one of the many human rights groups opposing Marcus’ nomination. “He is infinitely more effective.”
Marcus served in both the Housing and Education departments under Bush and as staff director for the bipartisan U.S. Commission on Civil Rights, positions that his supporters say have afforded him the skills to combat the most intractable civil rights challenges.
“He has a real good understanding about how all of our rights as Americans fit together, so he’s not one-dimensional in any way,” said Jennifer C. Braceras, a former member of the commission.
His critics question whether he will fulfill the office’s goal to stand up for all students. More than 30 civil rights organizations wrote a letter to the Senate Education Committee urging his rejection.
The groups cited Marcus’ record of rejecting policies that address discrimination against minority groups, including affirmative action and the evidence that students of color are more likely to face tough disciplinary actions. The NAACP Legal Defense and Education Fund said Marcus was “unlikely to advance diversity and equal access to educational resources.” During his confirmation hearing last month, Marcus said that he believed that if disproportionately high numbers of black students were being disciplined it would be grounds for concern, though it would not indicate outright discrimination or spark a systemic investigation. DeVos’ administration has been criticized for taking a similar approach to all civil rights enforcement.
“My experience says one needs to approach each complaint or compliance review with an open mind and sense of fairness to find out what the answers are,” Marcus told the committee. “I have seen what appear to be inexcusable disparities that were result of paperwork errors.”
The Leadership Conference on Civil and Human Rights also questioned his support for DeVos’ decision to rescind Obama-era guidance that strengthened processes for investigating sexual assault on college campuses. DeVos has expressed concern that the guidance has unfairly affected those accused of misconduct.
But Marcus has garnered support from conservative civil liberties groups that believe that he will rein in the overreach of civil rights enforcement exercised during the Obama administration.
Roger Clegg, president and general counsel of the Center for Equal Opportunity, said that under the Obama administration, affirmative action morphed into “racial preference.” To extend legal protection to cover gender identity and sexual orientation, he said, is “simply not good law.”
“The civil rights laws say and mean something different than what was interpreted by the Obama administration, and I think that will change,” Clegg said. “I think Ken is more in line with our interpretation of things.”
Human rights groups also expressed concern that Marcus will use his office to further a narrower agenda: combating the anti-Israel BDS movement on college campuses, which he believes has devolved into violent, anti-Semitic harassment. From his perch at the Brandeis Center, he has filed anti-Semitic harassment complaints with the Office for Civil Rights against three University of California college campuses, and encouraged Jewish students and their supporters to do the same.
Marcus wrote in an op-ed in the Jerusalem Post that while the complaints were rejected, they had created public relations headaches for the institutions.
“If a university shows a failure to treat initial complaints seriously, it hurts them with donors, faculty, political leaders and prospective students,” Marcus wrote.
In its opposition, the Leadership Conference said that Marcus “sought to use the Office of Civil Rights complaint process to chill a particular point of view, rather than address unlawful discrimination.”
Marcus has lobbied for institutions and the Education Department to adopt a definition of anti-Semitism that Jewish activists embrace but that many Palestinian rights groups say would render criticism of Israel as hate speech. Marcus has also said that Middle East programs accused of an anti-Israel agenda should lose federal funding.
“His primary missions is not to support students’ civil rights; it’s to protect Israel from criticism,” said Rahul Saksena, an attorney with Palestine Legal, a Palestinian rights group.
A group of 60 religious and educational organizations disagreed. They point to instances where Marcus has litigated First Amendment cases.
“While some believe that preventing discrimination in education and protecting the First Amendment are at odds, we could not disagree more. Both principles are paramount,” wrote the group, which included Christian groups, Students and Parents Against Campus Anti-Semitism, and Stop BDS on Campus. Marcus’ support from conservative Christians extends beyond their broad backing of Israel. In 1998, Marcus spoke at a Traditional Values Coalition conference, where he criticized hate crimes legislation that would cover violence based on sexual orientation. He described the legislation as “giving preferred treatment of some sorts of victims over other sorts of victims,” and punishing people for “unpopular” and “traditionalist” views.
“There are people who are using the word ‘hate’ to denigrate some traditional moral values,” Marcus told the group.
In response to more than 50 questions from Sen. Patty Murray of Washington, the top Democrat on the Senate Health, Education, Labor and Pensions Committee, Marcus said that his views expressed at the Traditional Values conference had “evolved.”