Education Department nominee Ken Marcus: a case study of the new anti-Semitism

Photo: Louis D. Brandeis Center

When I was a child, having been born in the 1950s under the shadow of the Holocaust, I had naively thought anti-Semitism was mostly a thing of the past that vanished in the gas chambers and ovens of Auschwitz. Yet within the past few decades, I have witnessed anti-Semitism blossom into a socially acceptable hatred that has managed to make its way into the corridors of polite society in a fashion that is as overt, obvious and unconcealed as it is alarming.

It has migrated not only into college classrooms and campuses, but actually into the most respectable chambers of the U.S. Senate, in the very committees whose mandate is to authorize and appropriate taxpayer-funded programs to eliminate racism and anti-Semitism as well as other hatreds, and to appoint professionals within those agencies.

Recently, much of this anti-Semitic invective has been directed against a colleague of mine, Ken Marcus, who has been nominated to serve as assistant secretary of education for civil rights within the Department of Education. For reasons I will explain, Marcus has been the victim of an ugly and disgusting smear campaign.

Marcus served in a similar capacity from 2004-2008 under President George W. Bush, as assistant secretary of education for civil rights and later as staff director of the U.S. Commission on Civil Rights. He monitored and investigated complaints against minority groups such as African-Americans, Hispanics, Muslims, Jews, LGBTQ individuals and people with disabilities. A firm believer in free speech rights under the First Amendment, Marcus has always expressed the view that hate speech is protected speech under the Constitution, and that the best antidote for hate speech is more speech.

The standard for protected speech within an educational setting, however, is a bit more complex.  When a student is subjected to physical/verbal harassment, vandalism or intimidation to the degree that it interferes with that student’s ability to learn—creating “hostile environment harassment”—it might very well cross the line.

During the past few years, when it comes to Jewish students, it seems that the line has been constantly crossed. A recent report from the Anti-Defamation League indicates that there was an alarming 67-percent increase in anti-Semitic incidents from 2016 to 2017. Most alarmingly, the greatest increase were in our nation’s schools, which saw an increase of 107 percent in anti-Semitic incidents experienced by Jewish students from kindergarten through 12th grade. Anti-Semitic incidents on college campuses, meanwhile, rose 63 percent during that period.

It was precisely because of this trend that in 2012, Marcus founded the Louis D. Brandeis Center for Human Rights Under Law, whose mission is “to advance the civil and human rights of the Jewish people and promote justice for all.” Marcus simply wants Jewish students to enjoy the same civil rights and protections that the law provides to other minorities.

Since Marcus’s institution serves to advance the civil rights of Jewish students, the flood of complaints against his nomination have come in at a frenetic velocity from some predictable sources.

On Jan. 10, Dima Khalidi published a scurrilous piece in The Nation entitled “Students Beware: This Trump Nominee Doesn’t believe in Your Civil Rights.” Notably, Khalidi fails to mention the fact that she heads Palestine Legal, a group that routinely works to undermine efforts to combat anti-Semitism on college and university campuses. She argues that Marcus, as the leader of LDB, “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.”

Nothing could be further from the truth. Throughout Marcus’s extensive career, he has consistently demonstrated uncompromising and objective support for the civil rights of all minority groups, and unflinching appreciation of everyone’s First Amendment rights.

As Jennifer Braceras—a former head of the U.S. Commission on Civil Rights, whose service overlapped with Marcus’s time at the agency, wrote in a recent article, “Marcus has never argued that speaking out against Israel is, in and of itself, sufficient to trigger federal civil rights law. To the contrary, he has expressly stated that skepticism of Israel’s ‘status quo’ is often wrongly characterized as anti-Semitic, when it ‘may well reflect only the concern, shared by some in the liberal Jewish American community, that Israel’s current policy toward Palestinian Arabs is unsustainable in light of gathering international pressure.’”

Perhaps Khalidi is unaware that Marcus, on behalf of LDB, has sent several letters to university officials decrying racism against Muslims and African-Americans on their campuses. In November 2015, Marcus penned a letter to Dr. Elliot Hirshman, president of San Diego State University (SDSU), expressing concern regarding an attack on a Muslim student. He wrote, “While our organization primarily addresses the rights of Jewish college students, we support the right of all students to be free from invidious discrimination.”

Does this sound like the sentiment of a racist or an Islamophobe?

Yet while I was recently talking about Marcus with a senior policy adviser to the Democratic ranking member of the U.S. Senate Committee on Health, Education, Labor and Pensions, the adviser interrupted me with the response, “We do not care about anti-Semitism in this office.”

If I were an African-American speaking about a black civil rights organization, would the adviser have ever thought to utter similar words?

Perhaps Marcus’s crime is how he has recognized that, along with other minority groups, Jewish students in America need protection. If that is the case, then we have gone a long way from the halcyon days of my youth.