In Defense of Kenneth Marcus

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Kenneth L. Marcus has been nominated to direct the Office of Civil rights in the United States Department of Education, based on his extensive experience as a civil rights attorney and a legal scholar. Marcus has held an endowed chair in Equality and Justice in America at Baruch College, served as staff director of the United States Commission on Civil Rights and as Assistant Secretary of Education for Civil Rights under President George W. Bush. As the current nominee of a Republican president, his positions on Affirmative Action and Title IX are simply what one would expect from any Republican nominee, creating understandable concern among Democrats. Whether one agrees with those positions or not, any nominee of the current administration would likely hold such positions. What makes Marcus unique in his work, is that he prioritizes and ensures freedom of speech on college campuses and is committed to equal rights for all students, both of which should be bipartisan priorities.

In recent years, Marcus has focused his attention on a dangerous international effort that has negatively impacted students on American college campuses. Commonly known as BDS, which stands for Boycott, Divest, and Sanction, this effort was co-founded by Omar Barghouti, a Qatar national, who was educated at Columbia University and Tel Aviv University. Although his followers claim that BDS is non-violent and, without offering any evidence, claim that they are supporting Palestinian refugees, Barghouti’s actual stated agenda calls for the destruction of Israel. According to Barghouti, Israel is an “illegitimate” state, founded by “Jewish colonizers” with no claim to the land, who “ethnically cleansed” the Palestinians who had been living there. He has gone on record saying, “Definitely, most definitely we oppose a Jewish state in any part of Palestine. No Palestinian, rational Palestinian, not a sell-out Palestinian, will ever accept a Jewish state in Palestine.” With an insidious and well-managed strategy, Barghouti and his colleagues have succeeded in penetrating American college campuses and educational associations, where they impede the free exchange of ideas among students and faculty members by shouting down and deplatforming speakers in order to control the information that is being disseminated and to promote their hostile agenda.

As a civil rights lawyer committed to ensuring free speech on campus, Marcus has confronted this daunting and growing phenomenon. He has addressed BDS tactics – not speech – which include orchestrating loud and intimidating groups to shout down speakers by chanting, “Long live the intifada” and scheduling Student Senate votes concerning Israel on Jewish holidays when Jewish students are at home celebrating. Marcus has also addressed troubling situations where BDS members have vandalized university property, harassed students on campus, disrupted classes, and threatened speakers with physical violence. In recent months, Marcus filed a lawsuit against the American Studies Association (ASA) for allowing the BDS organization to conduct a surreptitious hostile takeover of the association. Marcus showed that ASA members with allegiances to the BDS organization organized a vote to boycott Israeli scholars, and then strategized to prevent the ASA’s anti-BDS members from voting.

Given Marcus’s commitment to the first amendment, it is highly disconcerting to hear the recent misrepresentations of his positions from the American Civil Liberties Union (ACLU), which has begun to attribute views to him that he has never articulated. It is also concerning to hear the ACLU, a hallmark of American freedom and democracy, which is committed “to defend and preserve the individual right and liberties guaranteed by the Constitution and laws of the United States,” express concern about Marcus’s challenges to BDS, an international organization that regularly prevents voices it opposes from being heard. In combination, these two unusual developments warrant further exploration.

While Marcus works tirelessly to preserve students’ freedom of speech, a precious tenet of our American democratic legacy, the ACLU has chillingly suggested that he lacks allegiance to the United States and to students on Americans campuses in light of his Jewish identity. Their description of him notes “a passionate crusader against students and others who criticize the Israeli government,” and someone who “has played a central role in advocating for the suppression of student speech — particularly speech critical of Israel.”  Additionally, the ACLU seems to want to instill fear of Marcus in the minds of the American people, by making unfounded and frightening speculations. For example, they have referred to Marcus’s support of the Anti-Semitism Awareness Act, stating “the bill could be interpreted to prohibit vigorous campus speech, protest, and other forms of advocacy critical of Israel, which would plainly violate the First Amendment;”  “Marcus could push the government to start taking action against students who speak out against Israel, regardless of whether the Anti-Semitism Awareness Act passes. He could, for example, threaten to cut off federal funding to schools that allow students to engage in Boycott, Divestment, and Sanctions (BDS) campaigns and other protests against Israel.” (Emphasis added.)

In reality, the ACLU offers no evidence to support its speculations. None of us can predict the future, but, as socially conscious members of American society, we are responsible for making informed choices based on honest and fair analyses, not on unsubstantiated fear mongering.

I have known Kenneth L. Marcus for four years. On several occasions, I have sought his professional advice, which he offered generously. I have facilitated a panel discussion about civil discourse on campus at Oberlin College, at which he volunteered to speak. Mr. Marcus traveled to Oberlin to address a group of seventy students, faculty members, and administrators, whom he held in raptured attention as he discussed his extensive experience as a Civil Rights lawyer. He responded to numerous questions, some of them quite hostile, in a respectful manner, demonstrating his commitment to education and his vast knowledge of the law.

As a member of the Democratic Party since I became an American citizen and as an anti-bias educator for over a decade, I have never promoted a Republican nominee or candidate, until now. I support Kenneth L. Marcus because he is a man of integrity and because I believe that he will protect the rights of all students, as he has done in the past. I also believe that he will confront the concerted attack on free speech being executed by BDS supporters on college campuses and in educational associations across the United States, an attack that should also be of grave concern to the ACLU, to all American people, and most importantly, to the lawmakers who have sworn to protect them.

Melissa Landa, Ph.D. is President of the Oberlin Chapter of Alums for Campus Fairness. She is the author of Early Childhood Literacy Teachers in High Poverty Schools (2017) and the children’s book, I is for Israel (2017). She regularly presents her research at national and international conferences, and publishes in peer-reviewed journals. Landa was an award-winning faculty member in the College of Education at the University of Maryland from 2007-2017. Shortly after becoming active in the anti-BDS movement, Landa was dismissed from her position.





In Defense of Kenneth Marcus

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