As Jews, we generally take great pride in the support we have shown for civil rights and free speech. The 1964 sit-in of thousands of students in UC Berkeley’s Sproul Hall, which catapulted the free speech movement into the headlines, included a Hanukkah service. We still talk about Rabbi Abraham Joshua Heschel praying with his legs in 1965 as he marched with Dr. King in Selma. Even as recently as 1995, the Union for Reform Judaism (URJ) proudly announced its position in defense of the first Amendment, “we cherish these protections, not only because they are the hallmark of true freedom, but because we also know that the vibrant political discussion they foster strengthens our nation.” We like to think of ourselves as long time champions for justice and equality. And so, we should be appalled at the nomination of Kenneth Marcus for Assistant Secretary for Civil Rights at the Department of Education.
Kenneth Marcus, President and General Council of the Brandeis Center, is well-known for his attacks on university students who campaign for Palestinian rights. In complete disregard for the First Amendment, Marcus spends his time trying to trying to convince lawmakers to classify student activism critical of the Israeli government as inherently anti-Semitic. Using a tactic coined “lawfare,” Marcus and the Brandeis Center championed Title VI complaints to the Department of Education, asking universities to punish student activists and prohibit their activities.
In 2011, Brandeis Center lawyers filed a complaint with the Department of Education on behalf of UC Berkeley alumna Jessica Felber. The complaint alleged that the constructing a mock Israeli checkpoint created an unsafe environment for Jewish students. The suit was dismissed, with the court stating that the actions of the pro-Palestine activists were “pure political speech and expressive conduct, in a public setting, regarding matters of public concern, which is entitled to special protection under the First Amendment.”
In 2016, Marcus went after a group of racial justice and Palestinian rights students at UC Davis. He called them an “angry mob” and alleged that they had terrorized Jewish students outside a film screening. The university spent months investigating the charge and found it unsubstantiated. In 2017 Marcus sent a letter to the chancellor of the University of Wisconsin demanding the punishment of a group of students who had organized for racial justice and Palestinian rights.
Marcus is a among those pushing for wide use of a problematic State Department definition of anti-Semitism (currently the definition is narrowly used only for data collection). Even Kenneth Stern, author of the State Department definition of anti-Semitism, disagrees with the use of the definition on campuses, arguing, “rather than suppressing speech about the conflict, we should be encouraging it. How else will students learn?”
So far, the Brandeis Center’s Title VI complaints have been mostly unsuccessful. But, after Tuesday, if Marcus is confirmed by the Senate committee, he will hold the very position to adjudicate complaints and set policies.
The appointment of Kenneth Marcus will greatly damage free speech rights on campuses. He will also take us backwards in our work to combat anti-Semitism. It’s only been a few months since the marches and chants of “Jews shall not replace us” took place in Charlottesville. Neo-Nazis are using campuses as recruitment grounds and students are encountering and seeing the real threat of a rising alt-right anti-Muslim, black, immigrant, LGBTQ and Jewish movement. False or exaggerated complaints that protests for Palestinian rights put Jewish students in danger undermine the genuine efforts being made to stem the rising tides of bigotry. We risk the definition anti-Semitism becoming so diluted it becomes meaningless to counter real threats.
The Brandeis Center states its mission as being to to “advance the civil and human rights of Jewish people and promote justice for all.” But, in reality it, under the leadership of Kenneth Marcus, that Center works to shut down criticism of Israel, especially those who engage through nonviolent boycott and divestment, by defining all such actions as anti-Semitism. This ends up distracting the genuine cases of anti-Semitism, Islamophobia, homophobia, transphobia, racism and misogyny that need our attention. But, this isn’t out of alignment with the rest of Marcus’s agenda. In 2010, Marcus opposed a proposal to enable the U.S. Commission on Civil Rights to investigate human rights violations, including LGBT rights violations. He stated that he was concerned that opening the USCCR up to such issues as LGBT rights would make the commission “less concerned with protecting actual human rights or civil liberties and more concerned with implementing redistributionist policies in the areas of education, health, jobs and the economy.” In 2008 Marcus wrote against a University of Texas plan aimed at increasing Black and Latino student enrollment, calling it “decidedly not compelling.” In 2009, he supported a white firefighters New Haven lawsuit alleging they were discriminated against when test scores that would have prevented the promotion of Black and Latino firefighters were thrown out.
My son, now in his junior year of high school, is just starting to think about where he wants to attend for college. I envision these years to be an opportunity for him to expand, explore and debate the various disciplines and topics that interest and directly affect him, including the policies of the state of Israel. In this time where bigotry, in all its forms, is on the rise, condoned, supported and retweeted by the president, I hope my son will find his home both in the Jewish college community and at lectures and protests about settler-colonialism, sexual assault, racism, climate change, Israel and Palestine and more. If his college passions include creative protest and boycott and divestment for Palestinian rights, I want him to be able to do so within the proud history of the Jewish leaders and sages who came before him who came before him. I want him to spend his university student years without fear of a Title VI lawsuit that, prior to Kenneth Marcus, would likely have been thrown out as unconstitutional.