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Trump Nominee Has History of Suing Colleges Over Israel Boycotts

Kenneth Marcus says schools that allow BDS protests should lose federal funding. How is this not a violation of the First Amendment?

On Wednesday, the Senate Committee on Health, Education, Labor and Pensions will likely make the wrong decision on Kenneth Marcus.

Marcus is Donald Trump’s nominee to head the Office of Civil Rights (OCR) at the Department of Education. Among other things, the office decides education-related discrimination complaints under the 1964 Civil Rights Act. However, at his confirmation hearing on December 5, senators from both parties ignored Marcus’ record of trying to misuse the Civil Rights Act to stymie the campus Boycott, Divestment, and Sanctions (BDS) movement against Israel.

On Wednesday, the same committee is expected to rubber-stamp Marcus’ nomination and send it forward for full approval. The head of the Office of Civil Rights will then be a man who has devoted years of his life to stomping on the rights of university students. He’ll head the office that will hear the next round of similar challenges. And nobody, Democrat or Republican, even brought the issue up.

The 1964 Civil Rights Act, created to give the federal government a powerful tool to force desegregation on local school districts, allows under its Title VI and Title IX provisions for the withholding of federal funds from any school, program, or activity that violates the Act by discriminating based on race, color, national origin, or sex. Complaints filed against a school go to the Office of Civil Rights at the Department of Education (a court challenge is also possible) for a ruling. OCR holds the power to put most schools out of business financially if it rules discrimination took place, and schools work hard to stay within boundaries OCR sets through written guidance (so-called “Dear Colleague” letters) and precedent. If the Senate approves, Ken Marcus will be in charge of all this.

At the kabuki that was his nomination hearing, senators asked questions about Title VI, demanding camera-ready assurances Marcus would uphold the law regarding equal treatment for African-American students. More pointed questions followed from Democratic senators thinking of running for the presidency about Title IX. Secretary of Education Betsy DeVos wants to change her agency’s guidance on campus sexual assaults. Opponents claim she will weaken the protections for victims that have been offered since the Obama administration. Marcus will be in charge of that, too.

These were all worthy questions for the future head of the Office of Civil Rights. But what was not brought up was a troubling pattern of Title VI complaints and court challenges Ken Marcus himself brought over the years that will soon be just the kind of cases he’ll be helping to decide.

As head of his own Louis D. Brandeis Center for Human Rights Under Law, Marcus maintains that those who support the BDS movement are engaged in inherently discriminatory, anti-Semitic activity. In its mission statement, Marcus’ Center says “The leading civil and human rights challenge facing North American Jewry is the resurgent problem of anti-Semitism and anti-Israelism on university campuses.” Marcus believes campus opposition to the Israeli occupation of Palestinian lands violates the civil rights of Jewish students, based on an Obama-era decision to extend the race or national origin anti-discrimination clause of Title VI to Arab Muslim, Sikh, and Jewish students based on their “shared ancestry or ethnic characteristics.”

The tweetable version: Ken Marcus believes any campus that allows its students to voice opposition to the Israeli occupation should lose its federal funding. As head of the Office of Civil Rights, he’ll adjudicate complaints demanding just that same thing.

Ken Marcus’ new role couldn’t come at a better time, at least for Ken Marcus: every one of his Title VI complaints and suits has been thrown out, closed, denied, or otherwise turned down. Despite Marcus’ dubious assertion that students on American campuses speaking their minds about the actions of a foreign nation constitute a violation of the civil rights of Jewish students, both the Office of Civil Rights and the courts at various levels have maintained that the First Amendment rights of the protesters far outweigh any possible discrimination. The dean of the School of Law at the University of California, Berkeley said plainly that “any administrator in a public university who tried to follow Professor Marcus’s approach would certainly be successfully sued for violating the First Amendment.”

Yet despite his perfect record of losses, Marcus has done much damage, because winning against him comes at a price. Faced with the possibility of an expensive defense, some schools appear to have chilled anti-Israel free expression as a thrifty expedient, the same way schools have chosen to not invite controversial speakers to avoid high security costs. And if they decide to challenge his decisions as head of OCR, that will ultimately mean a battle in front of the Supreme Court.

Marcus knows exactly how well this chilling effect works. As he wrote in the Jerusalem Post, “These cases — even when rejected — expose administrators to bad publicity… Israel haters now publicly complain that these cases make it harder for them to recruit new adherents… If a university shows a failure to treat initial complaints seriously, it hurts them with donors, faculty, political leaders and prospective students.”

Ken Marcus’ intent to protect Israel by twisting the noble intentions of the 1964 Civil Rights Act is plain enough. Yet at his confirmation hearing not one senator, including Democrats Elizabeth Warren and Al Franken, asked a single question about how Marcus’ beliefs might influence his decisions as head of the Office of Civil Rights. Senator Tim Kaine, Hillary Clinton’s running mate, praised Marcus’ Brandeis Center for outing what he described as a white supremacist teaching at Virginia Tech. Senator Susan Collins referenced attacks against synagogues, and then tossed Marcus a softball question about whether he will protect all persons’ rights (he said yes). And despite receiving a letter signed by 200 Jewish academics and a similar letter from the Arab American Institute asking her to look into Marcus’ objectivity regarding Israel, Senator Patty Murray did not.

Installing Marcus as head of the Office of Civil Rights is in line with multiple actions aimed at silencing opposition to Israel. More than 20 states have adopted measures to restrict the BDS movement. Congress is considering the Israel Anti-Boycott Act, which would impose fines on companies that support boycotts. The Act has 266 sponsors, Republicans and Democrats, in the House, and 50 in the Senate. The ACLU on Thursday challenged an Arizona law requiring state contractors to promise they won’t boycott Israel. In October, the ACLU filed a challenge to a similar law in Kansas.

None of this came up at Ken Marcus’ confirmation hearing. As a private citizen, Marcus accomplished a lot on behalf of the state of Israel. In his new job at the Office of Civil Rights, he’ll be able to drive his agenda against the rights of Americans using the full power of the federal government. 

Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. Follow him on Twitter @WeMeantWell.



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