-
Ken Marcus Will Save Israel Using the Full Power of the U.S. Government
On Wednesday, December 13, the Senate Committee on Health, Education, Labor and Pensions will most 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 complaints under the 1964 Civil Rights Act. At his confirmation hearing on December 5, Senators from both parties ignored Marcus’ record of trying to misuse the Civil Rights Act in defiance of the First Amendment to stymie the campus boycott, divest, and sanction (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 spent years of his life trying to stomp on the rights of university students in his support of Israeli occupation of Palestinian lands. He’ll head the office that will hear the next round of similar challenges. And nobody, Democrat or Republican, even brought the issue up. Nobody asked him about Israel.
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 which 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 they rule discrimination has taken 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 him, Ken Marcus will be in charge of all this.
At his nomination hearing, the Senators asked a fair number of questions about Title VI, demanding assurances Marcus would uphold the law regarding equal treatment of white and African-American students, for example. More pointed questions followed from the Democratic Senators about Title IX; Secretary of Education Betsy DeVos is looking into changing her agency’s guidance on sexual assault on college campuses. Proponents say her plans will increase due process for the accused, while opponents claim it will weaken the new protections offered since the Obama administration for victims.
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 has brought over the years that will soon be just the kind of cases he’ll be helping to decide.
A driven man, as head of his own Louis D. Brandeis Center for Human Rights Under Law, Ken Marcus maintains persons who support the boycott, divest, and sanction movement against Israel 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 opposition to the Israeli occupation of Palestinian lands on university campuses violates the civil rights of Jewish students, citing an Obama-era 2010 decision to extend the race or national origin clause of Title VI to Arab Muslim, Sikh, and Jewish students based on their “shared ancestry or ethnic characteristics.”
The short version: Ken Marcus the man believes any campus that allows its students to voice opposition to the Israeli occupation should lose its federal funding. Ken Marcus as head of the Office of Civil Rights will adjudicate complaints demanding just that same thing.
Marcus’ new role as adjudicator couldn’t come at a better time, at least for Ken Marcus, in that he has been wholly unsuccessful in getting the Office of Civil Rights he’ll soon run to agree with him to date: every one of Marcus’s Title VI complaints and suits has been thrown out, closed, denied, or otherwise turned down by both OCR and the courts. Despite Marcus’ dubious assertion students on American campuses speaking their minds about the actions of a foreign nation constitute a violation of the civil rights of all Jewish students, both the Office of Civil Rights and the courts at various levels maintain the First Amendment rights of the protestors far outweigh any discrimination. The dean of the School of Law at the University of California, Berkeley and First Amendment scholar said plainly “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 Marcus 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.
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 using the Office of Civil Rights to twist the noble intentions of the 1964 Civil Rights Act to deny the First Amendment rights of students in America 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’ pro-Israeli beliefs might influence his decisions as head of the Office of Civil Rights. Senator Tim Kaine, Hillary Clinton’s vice presidential running mate, praised Marcus’ Brandeis Center for outing what he described as a white supremacist teaching at Virginia Tech. Senator Susan Collins referred to 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 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. 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. More than 20 states have adopted measures to restrict the BDS movement. Congress is considering the Israel Anti-Boycott Act, which would impose fines and possibly even prison on companies which support boycotts. The Act has 266 sponsors, Republicans and Democrats, in the House and 50 in the Senate.
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, Marcus will be able to drive his agenda against the rights of Americans with the full power of the federal government behind him. Ask Congress; they’ll tell you Ken Marcus is a man of his times.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Buy Peter’s Books on Amazon!
Leave A Comment