Just weeks after the Department of Justice vowed to fight for free speech on college campuses, President Donald Trump tapped a vociferous opponent of students’ protest rights for a top civil rights position at the Department of Education.
The White House on Thursday announced the nomination of Kenneth Marcus, president of the Louis D. Brandeis Center for Human Rights Under Law, as the assistant secretary for civil rights at the Department of Education’s Office for Civil Rights.
Marcus, who previously served in the Office for Civil Rights under former President George W. Bush, has spent years campaigning for crackdowns on Palestinian-American student activism and laws to punish Americans who support the Palestinian-led boycott, divestment, and sanctions (BDS) movement that advocates for economic pressure to force Israel to end its occupation of the Palestinian territories.
This movement is most robust on America’s college and university campuses, where students led by a nationwide group called Students for Justice in Palestine (SJP) have sought to pressure their schools to divest from Israel, at times successfully.
Marcus has said that he founded the Brandeis Center to “fight anti-Semitism on college campuses,” but he makes little distinction between anti-Semitism and a boycott of Israel for its violations of international law. While maintaining that not all people who advocate for BDS are anti-Semitic, Marcus has written that “the modern BDS movement is anti-Semitic,” whether those who take part in it are consciously biased or not.
The nominee has called on Virginia to adopt the State Department’s widely criticized definition of anti-Semitism when investigating schools for possible hate crimes. That definition includes as examples of anti-Semitism “delegitimizing” and “demonizing” Israel, “applying double standards” to Israel, and “focusing on Israel only for peace or human rights investigations.” A state that adopts this definition would be empowered to punish students who are part of SJP or other groups critical of Israel for exercising their rights to political speech.
He has also testified before state legislatures in favor of laws banning contracts with individuals who refuse to pledge not to boycott Israel. Such laws recently made national headlines when the American Civil Liberties Union intervened on behalf of a Kansas teacher who was denied payment for a training contract because she boycotts Israel and when the city of Dickinson, Texas, required contractors applying for post-hurricane relief grants to promise not to boycott Israel. (The city later removed this requirement from applications for aid.)
Advocates for the rights of BDS activists said they worry that appointing Marcus to a top civil rights job is tantamount to appointing a fox to guard the hen house: His anti-BDS work seeks to limit the civil rights of Americans.
Lara Friedman, the president of the Foundation for Middle East Peace, pointed to Marcus’s years of hardline activism and warned about the implications for campus free speech.
“In tandem with efforts to [legislate] against boycotts of Israel and settlements, Marcus has long been a vocal advocate of efforts, unsuccessful so far, to pass laws at both the federal and state level defining activism targeting Israel as anti-Semitism, and imposing a gag rule on such activism. These bills are clearly unconstitutional — a view held not only by activists but also by the likes of Kenneth Stern, who authored the definition of ‘anti-Semitism’ that Marcus and others are trying to use as a tool undermine free speech on campuses,” Friedman told The Intercept. “With Marcus now at the Department of Education, it is a good bet that he and his fellow travelers will now seek to impose through regulations what they have failed to achieve through legislation. The implications for campus free speech — not just on Israel-Palestine issues — are chilling.”
Palestine Legal Staff Attorney Liz Jackson pointed out that the Brandeis Center has made numerous complaints under Title VI — a federal civil rights law that prevents colleges from discriminating against students based on race, color, or national origin — alleging that pro-Palestinian activism has made campuses biased against Jewish students.
“Marcus is the architect of using Title VI complaints alleging that Palestinian-rights activism creates an anti-Semitic hostile climate for Jewish students,” Jackson said. “His theory is that universities are required under their Title VI obligations to suppress and punish Palestinian rights activism.”
The Department of Education has dismissed the complaints brought by the Brandeis Center, and a federal court threw out a Title VI lawsuit against the University of California, Berkeley, for failing to protect a student from anti-Semitism on campus, finding that the actions complained of, if true, constitute “pure political speech and expressive conduct … entitled to special protection under the First Amendment.”
Still, merely investigating pro-Palestine activism can have a chilling effect on free speech, a fact that Marcus has acknowledged.
“These cases – even when rejected – expose administrators to bad publicity,” Marcus wrote in a Jerusalem Post op-ed in 2013. “No university wants to be accused of creating an abusive environment. … Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.”
The Department of Education, under Secretary Betsy DeVos, is rolling back protections under Title IX, a federal law that prevents discrimination based on sex.