Trump's Pick for Top Civil Rights Post Under Fire Over Efforts to Crack Down on BDS

Some say Marcus is 'a champion' for the civil rights of Jewish students on campus. But critics allege that by conflating criticism of Israel with anti-Semitism, Marcus stifles free speech

Kenneth Marcus, the Trump administration's pick for Assistant Secretary for Civil Rights at the Department of Education.
Kenneth Marcus, the Trump administration's pick for Assistant Secretary for Civil Rights at the Department of Education. Paul Morigi

NEW YORK — The White House’s announcement last week that Kenneth Marcus has been chosen to safeguard the civil rights of students has pushed to the front lines the battle over free speech about Israel on U.S. college campuses.

Supporters of the Boycott, Divestment and Sanctions movement, or BDS, vocally oppose Marcus' nomination as Assistant Secretary for Civil Rights at the Department of Education. The pro-Palestinian advocacy group Jewish Voice for Peace wrote an open letter signed by more than 200 professors, saying that Marcus conflates criticism of Israel with anti-Semitism and thus stifles free speech.

But for groups who are focused on the ability of pro-Israel students to feel comfortable expressing themselves on college campuses, Marcus’s nomination is good news. Tammi Rossman-Benjamin, the director of the AMCHA Initiative, a group that combats anti-Semitism on campuses, called Marcus "a real champion for Jewish students and Jewish students’ civil rights on campus."

Agudath Israel of America, a group representing the ultra-Orthodox movement in the U.S., issued a statement saying that Marcus’ “work on combatting anti-Semitism and other forms of bigotry on college campuses and elsewhere has been groundbreaking and transformational."

And according to Rossman-Benjamin, Marcus "doesn’t care just for Jewish students. I’ve known him to be concerned about the civil rights of many different students. He is a well-qualified and the perfect person for the job.” 

But while issues of sexual assault on campus have recently taken central stage at the Education Department, Marcus has exclusively focused on anti-Semitism for the past several years, forcefully advocating federal monitoring. At his upcoming Senate confirmation hearing, senators will likely grill Marcus about his views on the topic, writes "Inside Higher Ed."

According to Jewish Voice for Peace, Marcus' appointment "will have catastrophic effects on free speech and civil rights on campuses." JVP says that Marcus, who founded and serves as president and general counsel to the Louis D. Brandeis Center for Human Rights Under Law, "has bullied students and faculty that advocate for Palestinian rights, notably by filing Title VI complaints against campuses where students have successfully passed BDS resolutions."

In 2010, Marcus successfully pushed the Department of Education to start interpreting Title VI of the 1964 Civil Rights Act to add anti-Semitism to the categories of discrimination it monitors. They include race, color and national origin. 

JVP says that although none of the Title VI complaints filed by Marcus had merit, "he has continued to equate the movement to boycott Israel with anti-Semitism, casting free speech, criticism and nonviolent resistance as violations of civil rights.” 

Marcus has indeed equated BDS with anti-Semitism. In his contribution to the collection of essays titled “The Case Against Academic Boycotts of Israel,” Marcus wrote, “some of its proponents act out of conscious hostility to the Jewish people; others act from unconscious or tacit disdain for Jews; and still others operate out of a climate of opinion that contains elements that are hostile to Jews.”

According to Howard Winant, a distinguished professor of sociology at University of California Santa Barbara, however, “the effort to crack down and repress criticism of Israel creates a climate where it’s dangerous” to speak out against Israel's policies. Winant, who signed the JVP letter, said that "you can lose your job" for criticizing Israel.

Daniel Boyarin, Taubman Professor of Talmudic Culture at University of California Berkeley, told Haaretz that if Marcus is confirmed, “people like me could be targeted by attacks from Marcus's office of the sort that he has tried to pull off in the past, and this would have a chilling effect on discourse about Israel on campus.”

“I would certainly be a target as someone whose speech is defined by them as anti-Semitic,” Boyarin, a BDS and JVP supporter, said. “His whole concern with civil rights is to have political activity that he perceives or defines as anti-Israel deemed anti-Semitism, and therefore incorporated in civil rights anti-hate speech restrictions.”

JVP will soon send its letter to U.S. Secretary of Education Betsy DeVos and Senator Patty Murray, said Tallie Ben-Daniel, the group's campus program manager. Murray is a ranking member of the Senate’s Health, Education, Labor and Pensions committee, which will hold a hearing to consider Marcus’s nomination.

Yonah Lieberman, a spokesman for the grassroots anti-occupation group IfNotNow, told Haaretz that the organization opposes Marcus’s appointment to the Education Department. “He is the architect of a ridiculous legal strategy to silence opposition to Israeli policies based on accusations of anti-Semitism,” Lieberman said, adding: “That limits free speech.”

But even some who disagree with Marcus’ approach to policing BDS on college campuses support his confirmation.

“This is a guy who’s knowledgeable and capable and experienced and has been in that world before,” said Kenneth Walzer, executive director of the Academic Engagement Network, a national network of more than 500 academics who oppose the BDS movement, and support academic freedom and freedom of speech. Marcus is “serious about civil rights and will be a capable and honest person there with a special interest in anti-Semitism,” said Waltzer, who is an emeritus professor of history and the former director of Jewish Studies at Michigan State University. 

According to critics, however, Marcus' past attempts to get anti-Israel speech censured by the Education Department have failed. In fact, Marcus himself has said as much. In 2013, Marcus wrote in an article published by the Jerusalem Post that complaints filed by the Brandeis Center to the office he will likely come to lead were dismissed. The center had alleged anti-Semitic harassment at the Berkeley, Irvine and Santa Cruz campuses of the University of California.

Nevertheless, Marcus wrote, the complaints had made an impact. “We have given voice at the highest levels of the federal government to the concerns of Jewish students and faculty. Second, we have put universities on notice. These cases – even when rejected – expose administrators to bad publicity,” Marcus penned. Perhaps Marcus was being prescient when he wrote, “the only way to win these cases is to file them, even when we see some or most rejected. In my view, the findings of existing authorities are important but not final. Not all cases are going to meet the same fate.”

Contacted by Haaretz for an interview, Marcus referred a reporter to U.S. Education Department Press Secretary Elizabeth Hill, who said Marcus is unable to speak with reporters until he is confirmed. Marcus had the same job under President George W. Bush from 2003 to 2004 before going on to work as staff director of the U.S. Commission for Civil Rights from 2004 to 2008.