Nora Barrows-Friedman, The Electronic Intifada, 27 October 2017
In a troubling move for students and Palestine rights activists, the Trump administration has tapped Kenneth Marcus as the top civil rights enforcer at the US Department of Education.
He will lead the department’s Office of Civil Rights.
Marcus is the head of the Brandeis Center for Human Rights, an Israel advocacy group that has for years worked to smear Palestine solidarity activism as anti-Semitism. It has no affiliation with the better known Brandeis University.
Since 2010, Marcus’ key strategy has been to file civil rights complaints with the Office of Civil Rights claiming that universities were failing to protect Jewish students by not cracking down on the Palestine solidarity movement, especially the boycott, divestment and sanctions (BDS) movement for Palestinian rights.
The tactic was unsuccessful. But now, Marcus himself will be in charge of investigating such complaints.
Marcus’ appointment comes just weeks after Secretary of Education Betsy DeVos rolled back regulations aimed at protecting victims of campus sexual assault.
Abuse of civil rights law
Marcus previously served as the Office of Civil Rights’ top enforcement officer from 2002-2004, under President George W. Bush, and has held other government jobs.
He is author of the strategy Israel advocacy groups have used to instigate federal crackdowns on Palestine solidarity activism by filing complaints under Title VI of the 1964 Civil Rights Act.
The act obligates administrators to ensure that there is no discrimination based on race or national origin in institutions that receive federal funding.
In 2010, the Obama administration expanded its interpretation of the law to include religion, opening the way for complaints alleging that Palestine advocacy harms Jewish students.
In 2013, the Office of Civil Rights threw out Title VI complaints filed against the University of California campuses at Berkeley, Santa Cruz and Irvine.
The previous year the department threw out a similar complaint against Barnard College.
These decisions marked a setback to Marcus’ strategy which was based on advancing the notion that Palestine rights activism on US campuses is inherently anti-Semitic.
Earlier this year, Marcus testified in support of a bill in the South Carolina legislature aimed at censoring Palestine advocacy on campuses.
A legal memo from civil and human rights groups said the bill sought to unconstitutionally amend South Carolina’s education law “by directing public colleges and universities to classify virtually all political speech critical of Israel and Israeli government policies as anti-Semitic.”
Opposition from activists – including members of Students for Justice in Palestine at the University of South Carolina – helped defeat the bill in the state senate.
As the top civil rights enforcer, Marcus “will do from the inside the Department of Education what he has failed to do from the outside: advance Title VI cases that push universities to punish students who exercise their First Amendment right to advocate for justice in Palestine,” said Dima Khalidi, director of Palestine Legal.
Warning his appointment could be “catastrophic,” Jewish Voice for Peace’s academic advisory council has launched a petition for educators to oppose Marcus’ new position.
“His tactics dilute the definition of anti-Semitism so much that it becomes useless, and have contributed to widespread repression on college campuses, where students and faculty fear studying Palestinian history or advocating for Palestinian rights,” Jewish Voice for Peace said.
This appointment comes as more than 20 states have adopted measures ostracizing or attempting to restrict the BDS movement.
Last week, it was revealed that a city in Texas required residents to verify that they do not boycott Israel in order to receive aid to rebuild from the devastation of Hurricane Harvey.
Earlier this month, the ACLU filed a lawsuit on behalf of a teacher in Kansas who is being required to repudiate boycotts of Israel as a condition for taking on a state contract as a trainer.
Currently, the US Congress is considering the Israel Anti-Boycott Act, which could impose prison and heavy fines on companies or their personnel accused of abiding by boycotts of Israel called for by international organizations.
The Israel Anti-Boycott Act currently has 266 sponsors in the House and 50 in the Senate.
“Make the enemy pay”
Although pro-Israel lawfare groups have suffered rounding defeats when their claims end up before judges, they have been undeterred.
Last year, another Israel-aligned litigation group, the Lawfare Project, indicated that it was preparing another round of Title VI challenges against US universities despite the strategy’s previous failures.
“The goal is to make the enemy pay,” Brooke Goldstein, the Lawfare Project’s director, said.
With Kenneth Marcus now at the helm of the Office of Civil Rights, those targeted by such complaints will have anything but an impartial adjudicator in charge of investigating them.
His new role will be a boon for Israel lobby groups seeking to silence campus organizing for Palestinian human rights, censor educators who teach about Israeli and Palestinian history and even shut down Students for Justice in Palestine chapters.
“Marcus has no business enforcing civil rights laws when he has explicitly used such laws to chill the speech activities and violate the civil rights of Arab, Muslim, Jewish and other students who advocate for Palestinian rights,” Palestine Legal’s Khalidi added.
“His appointment will only further the white supremacist and anti-Muslim agenda of the Trump administration.”