Dozens of advocacy groups on Monday called for the confirmation of Kenneth Marcus — a leading figure in efforts to combat campus antisemitism — to a prominent civil rights post at the US Department of Education.
The founding president of the Louis D. Brandeis Center for Human Rights Under Law — which aims to fight anti-Jewish and anti-Israel discrimination in universities and colleges — Marcus was nominated to serve as assistant secretary at the Office of Civil Rights (OCR) under Secretary of Education Betsy DeVos. He previously held the same position under President George W. Bush from 2003-2004.
Marcus’ record was strongly endorsed by 60 “Jewish, Christian, education and civil rights” organizations in a letter sent to members of the Senate Health, Education, Labor and Pensions (HELP) Committee, which is expected to consider his nomination this week.
The groups — representing “millions of your constituents” — praised Marcus’ protection of both civil liberties and free speech rights during a career that has included posts at the US Commission on Civil Rights and the Department of Housing and Urban Development.
During his service, “Ken championed the civil rights of all Americans in a wide range of areas, including strengthening Title IX enforcement, fighting against racial segregation, increasing fair housing rights for the disabled, and ensuring that Jewish, Sikh and Muslim students were protected under Title VI,” the letter said.
The groups emphasized Marcus’ commitment to the First Amendment, a point of contention among critics who believe his advocacy on behalf of Jewish students sought to infringe on the free speech rights of anti-Israel activists.
Marcus “has consistently counseled university presidents that censorship is never the proper remedy for addressing anti-Semitic and anti-Zionist expression,” the letter noted.
The letter also cited Marcus’ success in representing three residents of Berkeley, California who were investigated by federal officials for publically criticizing a housing project in their neighborhood. The Center for Individual Rights (CIR) said the case — which was ruled on by the US Court of Appeals for the Ninth Circuit in 2000 — made clear “that anti-discrimination laws cannot be used to chill the constitutionally protected expression of unpopular views.”
Marcus’ record has nonetheless drawn the ire of the Leadership Conference on Civil and Human Rights (LCCHR) — a coalition of over 200 national advocacy groups — which called Marcus’ “unsuited” to lead the OCR in a letter sent to HELP committee members last week.
The letter argued that Marcus failed “to demonstrate a commitment” to protecting “students of color” and “LGBTQ students” from discrimination, “immigrant and language minority children” from constitutional and civil rights violations, and all students “from sex discrimination.”
It also accused Marcus of trying “to use the OCR complaint process to chill a particular political point of view, rather than address unlawful discrimination.”
This same criticism was leveled by groups supportive of the boycott, divestment, and sanctions (BDS) campaign against Israel, which Marcus has identified as one of the leading factors driving anti-Jewish hostility on campus. These include the US Campaign for Palestinian Rights, which said Marcus sought “to suppress Palestine activism on campus,” and called on supporters to urge their senators to oppose his confirmation.
The American Jewish Committee — a founding member of the LCCHR — rejected these concerns in a letter to Sens. Lamar Alexander (R-Tenn) and Patty Murray (D-Wash.), respectively chairperson and ranking member of the HELP committee.
Calling Marcus “well fit” to lead the OCR, the AJC emphasized that Marcus has repeatedly “made clear that he did not believe that, as the LCCHR letter implies, mere criticism of Israel was actionable under Title VI.”
“On the contrary, Mr. Marcus has repeatedly stated that most such criticism is protected speech,” the group wrote. Rather, he only supported “the proposition that some extreme criticism of Israel constitutes anti-Semitism — a position AJC shares — and that in the appropriate circumstances expressions and actions related to that criticism can create a hostile environment actionable under Title VI of the 1964 Civil Rights Act in the same way as with racist, homophobic or misogynistic expression and activities.”
“Unfortunately,” the AJC noted, “the LCCHR letter obscures that crucial proposition.”