Kenneth Marcus couldn’t name a single thing about Trump’s abysmal civil-rights record that he disagreed with this past December during a Senate confirmation hearing on his nomination to a top post in the Office for Civil Rights at the US Department of Education (DOE).
That, unfortunately, is unsurprising. Since taking office, most of President Trump’s nominees have been appallingly underqualified, corrupt, or openly hostile to the mission of the agency they’re appointed to lead. Kenneth Marcus is no exception. The Senate Health, Education, Labor, and Pensions (HELP) committee is expected to vote on his nomination next week, followed by a full Senate vote shortly after. His record should disqualify him from the job.
If confirmed as head of the Office for Civil Rights, Marcus will control the implementation of federal education policy intended to protect vulnerable student groups from discrimination. He will have the power to manage civil rights investigations and to determine their outcomes. He will have the power to create federal civil rights policy, and he will decide how the Department prioritizes its already anemic resources—for example, should the Department assign its attorneys to investigate allegations of institutionalized anti-black racism, or political speech alleged to be anti-Semitic? That will be Marcus’s choice, and his record makes clear the choices he’ll make.
Marcus has consistently taken positions that reveal his anti–civil rights agenda. During his time as head of the US Commission on Civil Rights (USCCR)—a position he held from 2004 to 2008, under George W. Bush—he opposed affirmative action and other remedies to racial discrimination by overseeing the publication of a report backing the dismantling of affirmative action in law schools. He also argued against university efforts to achieve diversity through “race-neutral alternatives” and other means, and he opposed a proposal to expand the scope of the USCCR to enable it to investigate violations of LGBTQ rights and broader human rights. More recently, during his HELP Committee hearing, Marcus said that he agreed with Secretary Betsy DeVos’s decision to rescind detailed Title IX guidance on sexual assault and increase protections for accused abusers.
This history has alarmed civil-rights groups, both in the lead-up to his confirmation hearings as well as further back, during his days at USCCR. In a 2007 letter to Marcus, the ACLU denounced the commission’s drift from its “historic mission of vigorously investigating and reporting on civil rights abuses against minority and disenfranchised communities, to a new mission, which has called into question programs designed to ameliorate the historic effects of discrimination.” The letter highlighted the fact that, under Marcus’s leadership, the commission “reversed its longstanding positions on desegregation and affirmative action,” took positions against the Voting Rights Act, and failed “to investigate serious allegations of civil rights abuses, such racial issues arising out of the Jena 6 case or the allegation that black neighborhoods in Ohio did not receive sufficient numbers of voting machines in the 2004 election.”
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This record exposes Marcus’s agenda, perfectly aligned with the Trump administration’s, to narrow and undermine civil-rights laws. But there’s another part of his record that is also troubling, and that is his history of undermining and threatening First Amendment protections for students, most notably those who express support for Palestinian rights.
Marcus is the founder and president of the Louis D. Brandeis Center for Human Rights Under Law, which aims to fight “anti-Semitism and anti-Israelism on US campuses.” As the conflation in the mission would suggest, he has made a practice through his work at the center of targeting the First Amendment rights of students who are critical of Israeli policies and advocate for Palestinian rights. He has lobbied for federal and state legislation that would impose on the DOE and universities a redefinition of anti-Semitism so vague and broad that it would encompass virtually any criticism of Israel and classify advocacy for Palestinian rights as inherently anti-Semitic. This redefinition, drafted by Israel advocates and eventually adopted by the US State Department to investigate anti-Semitism abroad, posits that “delegitimization,” “demonization,” and “double standards” against Israel amount to anti-Semitism. The legislation has so far failed because of widespread criticism and concerns—such as those expressed by the definition’s original drafter—that it would severely infringe on First Amendment rights.
The potential consequences are still significant, however. If this definition were adopted and implemented as Marcus would like, the DOE would be empowered to conclude that universities nurture hostile, anti-Semitic environments by allowing the screening of a documentary critical of Israel’s 50-year military occupation of Palestinian lands such as Occupation 101, a talk critical of Israeli policy by a Holocaust survivor, a mock checkpoint enacted by students to show their peers what Palestinian life under a military occupation is like, a talk on BDS campaigns for Palestinian rights, or student resolutions to divest from companies complicit in Israel’s human-rights abuses.
These aren’t hypotheticals. These speech activities were the subject of real legal complaints, filed or promoted by Marcus and his Brandeis Center against Brooklyn College (2013), University of California Berkeley (2012), and University of California Santa Cruz (2009). The complaints were filed to the same DOE office which Marcus has been nominated to head.
Crucially, all of these complaints were dismissed. Both a federal court and the DOE made clear that the activities at issue were not harassment against a protected group but constituted speech on matters of public concern, and therefore were protected by the First Amendment.
Yet the complaints and lawsuits by the Marcus-led Brandeis Center and its partners continue, with universities responding to the pressure by increasing their scrutiny of students who advocate for Palestinian rights. This has resulted in institutions’ discriminating against students because of their political views by disproportionately punishing them and erecting barriers to their organizing efforts. Fordham University, for instance, is now the first educational institution that has banned a Students for Justice in Palestine club from forming because of fears opponents raised that the group would cause “polarization.” Marcus’s center has praised this move, which Palestine Legal, the organization I direct, is challenging in court together with the Center for Constitutional Rights.
Marcus also aims to thwart academic advocacy for Palestinian rights. Last year, the Brandeis Center sued the American Studies Association (ASA) for adopting an academic-boycott resolution related to Israel. According to Marcus, the resolution was “illegal” and exceeded the organization’s scope because such resolutions press a social justice agenda and “[the ASA] is not a social justice organization.” His argument was swiftly dismissed by a federal-court judge.
Marcus’s appointment would be a win for Trump’s anti–civil rights agenda. And it would be a win for right-wing supporters of Israel who wish to shut down debate on Israel/Palestine, even while they further entrench the colonial enterprise in Israel/Palestine itself. These right-wing supporters have found a ready champion in Trump, whose anti-Palestinian, pro-Israel, pro-settlement sentiments are incited by his underqualified and extremist appointees who have already managed to deliver what no previous administration has dared to do: recognition of Jerusalem as Israel’s capital.
Here as elsewhere, however, they will find that their victories are ultimately pyrrhic. That’s because more Americans are speaking out not only in defense of First Amendment and civil rights now under threat, but also for Palestinian freedom itself. Senators must oppose Marcus’s nomination if they understand that a threat to some of our freedoms is a threat to them all.
Clarification: an earlier version of this article stated that the HELP committee was expected to vote on Marcus’s nomination on January 11. The vote has since been moved back another week.
