With anti-BDS hysteria billowing nationwide, the Trump administration last week nominated Kenneth Marcus, president of a legal advocacy group that targets BDS, to the top civil rights position at the Department of Education (DOE).
Although publications like The Forward and Washington Post characterize him as a Jewish advocate, Marcus is better known on many college campuses by his proclivity for excessive litigation against Palestine solidarity activists. He once boasted in a letter to supporters that his Louis D. Brandeis Center for Human Rights Under Law is instilling “fear” into activists — especially supporters of the nonviolent, Palestinian-led boycott, divestment and sanctions (BDS) movement which aims to force Israel’s compliance with international law and recognize the rights of Palestinians.
Marcus’s appointment requires Senate confirmation.
The boycott movement has made considerable gains in recent years, with student bodies at universities like Tufts, Stanford, Chicago and five of the seven University of California campuses passing divestment resolutions.
But the pro-Israel backlash is keeping pace. Last week, Maryland’s governor issued an executive order making it the twenty-first state to specifically prohibit the boycott of Israel. Lawmakers have introduced bills, some still pending, to bar BDS at the federal, state and even county levels.
Kenneth Marcus, since he founded the Brandeis Center six years ago, has crusaded against campus Palestine solidarity activism, in effect weaponizing Title VI of the 1964 Civil Rights Act which prohibits discrimination on the basis of race, color and national origin in federal fund-assisted organizations, i.e. universities.
“For years, Mr. Marcus’ Brandeis Center has been the vehicle by which the Civil Rights Division of the DOE has heard these Title VI complaints,” Maya Berry, Executive Director of the Arab American Institute, told Mondoweiss.
The center has brought complaints forward on everything from student organized Palestine justice activity, the formation of Students for Justice in Palestine chapters and campuses that host BDS-supporting guest speakers.
“Those are the types of cases he has used to say there’s a prevalence of anti-semitism on [a] college campus,” Berry added. Though until this point, the DOE has rejected each of these claims.
Before founding the Brandeis Center, Marcus served as Assistant Secretary of Education at the Office for Civil Rights and then Staff Director at the U.S. Commission on Civil Rights under former president George W. Bush. During his tenure at the State Department, he most notably orchestrated the extension of Title VI to include all ethnic groups that also share a faith.
However, the Brandeis Center’s repeated application of the law under his direction seemingly reveals Marcus’s real intention: to immunize pro-Israel students from criticism and punish Palestine advocates.
Despite a measured rise in hate crimes and actual anti-semitism in the country of late, Marcus seems more concerned with promoting anti-Palestinian politics. “He has approached the civil rights division of the DOE as a vehicle to suppress free speech based on nothing more than political disagreement,” Berry told Mondoweiss.
Since Trump’s election, awkward alliances between the genuinely anti-semitic and supporters of Israel have formed in support of the president, despite the seeming incoherence between a head of state who counts neo-Nazis among his supporters and pro-Israel groups concerned with combatting anti semitism.
Of course that may not be an inconsistent position for those who are more concerned with protecting Israel than combatting anti semitism in the U.S.— or those who view BDS as the manifestation of anti semitism.
As Marcus told Politico earlier this year, “it’s harder to deal with anti-semitism that disguises itself as anti-Israel in some respect.”
Marcus did not respond to a request for comment by Mondoweiss.
Students organizing Palestine solidarity on university campuses already face a number of obstacles that no other groups face. Administrative reprisals and condemnations are simply standard fare for Students for Justice in Palestine, Jewish Voice for Peace and other groups advocating Palestinian rights.
In quite a sour irony, the Title VI complaints levied by the Brandeis Center against students promoting justice in Palestine almost universally claim anti semitism as the driving force behind Palestine solidarity action. Thus, the complaints claim criticism of Israel is akin to discriminating against Jewish students.
“So far the DOE has found, in dismissing several complaints, that Palestine advocacy on campuses is protected political speech,” Dima Khalidi, Director of Palestine Legal, noted.
But as Assistant Secretary, she went on, “Marcus may try to push further policies that entrench the conflation of anti semitism and criticism of Israel to facilitate decisions favorable to Israel advocacy groups,” she said.
Many universities are outwardly hostile to Palestine organizing for a variety of reasons, including fear of bad press, donor influence or a strong campus pro-Israel lobby.
“Doing Palestine solidarity work, especially at George Washington University, has been the hardest I have witnessed,” a Palestinian on the GWU campus who wished to remain anonymous, told Mondoweiss. “I personally feel discriminated against on campus.”
Institutional backlash comes “very discreetly” and with a clear double standard, said the individual. It usually begins with a professor or adviser who cautions Palestine solidarity groups against their myriad actions, which administrations tend to see as targeting pro-Israel groups. But the rebuke rarely goes both ways, even though “most of the pro-Israel events on campus could be pretty triggering, especially to Palestinians.”
For such students, already castigated for their politics, the prospect of Kenneth Marcus leading the civil rights division of the DOE is concerning.
“Kenneth Marcus plans to expel student activists and silence us,” the Palestinian student predicted. “This is a total push against practicing our civil rights as students in America, especially our right to free speech.”
The claim that Jewish students feel threatened by Palestinian solidarity actions was undermined by a Stanford University study published last month titled “Safe and on the Sidelines.” It compiled testimony from 66 undergraduate students who belong to various campus Jewish groups at UCLA, UC Irvine, Stanford, UC Berkeley and San Francisco State University — institutions frequently accused of fostering an anti semitic environment.
The researchers conclude in part: “Contrary to alarmist reports that describe colleges and universities as ‘hotspots of antisemitism and anti-Israel sentiment,’ we found that students do not experience their campuses in this way. Instead, they reported feeling comfortable on their campuses and comfortable being Jewish among their peers and classmates. They tended to dismiss claims that their campuses were either anti-semitic or unsafe.”
For much of his career, Marcus has adamantly but unsuccessfully promoted the redefinition of anti semitism to include criticism of Israel.
If he prevails in the DOE, Dima Khalidi told Mondoweiss, “it would mean that DOE investigations of Title VI complaints against Palestine advocacy would be more likely to result in decisions finding discrimination or a hostile environment for Jewish students.”
Title VI discrimination complaints are most commonly filed with the DOE, though they can be filed in federal or civil court.
Maya Berry explained that Marcus’ lack of success in winning these complaints has never stopped him from continuing to encumber the system.
“His approach was to tie up attorneys within the DOE to deal with [such cases], when in reality they weren’t discriminatory cases,” Berry told Mondoweiss. “I believe that takes resources away from actually defending civil rights.”
A more chilling implication of Marcus’ nomination is the effect it would have on free speech, something that Palestine Legal has written about and investigated extensively.
Khalidi outlined some of the expected “indirect effects” should Marcus be confirmed.
“Pressure from federal investigators and media attention to such investigations would undoubtedly result in increased censorship at the campus level, as we’ve seen in the wake of past Title VI complaints and threats. Administrators, as Marcus has boasted, have a good reason to fear bad headlines and the potential loss of funds as a result of allegations, even if they are unfounded,” Khalidi explained.
“As a result of this pressure, administrators respond by restricting the free speech rights of Palestine advocates, through both bureaucratic repression and overt censorship.”