Why the human-rights community opposed a foe of college anti-Semites

The attacks on Ken Marcus, outgoing head of the Education Department’s Civil Rights office, show why control of the federal bureaucracy matters.

Kenneth L. Marcus. Credit: U.S. Department of Education.
Kenneth L. Marcus. Credit: U.S. Department of Education.
Jonathan S. Tobin. Photo by Tzipora Lifchitz.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

As far as The New York Times and many in the so-called human-rights community go, the departure of Kenneth L. Marcus from the U.S. Department of Education couldn’t have come too soon. The newspaper’s Washington bureau has devoted a series of articles on Marcus’s work in the last two years that depicted him as a foe of civil rights. According to the Times, Marcus, whom it claimed was stepping down “amid controversy,” had run the department’s civil-rights office since 2018 after a bitter fight by Democrats to prevent his confirmation.

That sounds like the usual narrative about anyone serving in the Trump administration from much of the mainstream media. But despite the drumbeat of criticism he received from left-wingers, Marcus’s tenure in office is a case study in why the identity of those who fill seemingly minor posts in the federal bureaucracy matters greatly. During his two years in office, Marcus did cause trouble. The trouble he caused, however, was for anti-Semites and their enablers in academia and extremist organizations that masquerade under the rubric of human rights. Indeed, his work was so consequential that even a biased and deeply critical article about his leaving office had to concede that his record included “significant accomplishments.”

In two short years, Marcus did as much, if not more, to fight anti-Semitism on college campuses as anyone in government has ever done.

While his work involved not only cases relating to Jewish issues, it was his role as a champion in the fight against Jew-hatred that put a target on his back while serving at the Department of Education. His reversals of Obama-administration rulings and policies that essentially took a hands-off attitude to anti-Semitism on campuses enraged his critics. Left-wing groups that attack Jews under the cover of anti-Zionism and advocacy for the Palestinians aren’t sorry to see him go. They are also hoping that someone chosen by Joe Biden if he is elected president in November might reinstate a laissez-faire approach to Jew-hatred when that job is filled next year.

Marcus came to his post after a distinguished career in government, academia and the law, during which he had established himself as a leading voice for civil liberties, free speech and opposition to anti-Semitism. In previous government service during the George W. Bush administration, he had fought for women in enforcing Title IX protections and against segregation. Most notably, he was also responsible for the Department of Education’s civil-rights office establishing that Title VI of the 1964 Civil Rights Act also protect the rights of ethnic groups that share a faith—an important distinction—as well as other minorities. That enabled Jewish, Muslim and Sikh students to seek redress against discrimination and intimidation.

While the Obama administration Justice Department upheld the legality of that interpretation of the law, it also chose not to enforce that law when it came to anti-Semitic activities that stemmed from advocacy for the destruction of the Jewish state.

After the nomination of Marcus to his post in 2018 by President Donald Trump, supporters of the anti-Semitic BDS movement feared that his appointment would cause them trouble—and they were right.

In one important case, Marcus reopened an investigation into a series of incidents at Rutgers University dating back to 2011 in which groups dedicated to demonizing Israel and Jews were allowed to engage in both threats and discriminatory conduct without the university lifting a finger to stop it or hold those responsible accountable.

What happened at Rutgers stemmed from an anti-Israel event held on the campus that employed a classic anti-Semitic trope that libelously portrayed Israel as a Nazi state. But, as a smoking-gun email revealed, organizers also sought to charge students that they believed were Jewish to attend while not charging others.

Rather than taking action to curb such behavior or look into threats made by organizers against Jewish students, Rutgers did nothing. And when the Zionist Organization of America submitted a formal complaint to the Department of Education, the Obama administration dismissed it and refused to consider an appeal. Marcus reversed that indefensible decision.

His actions didn’t prevent anyone from criticizing Israel. But it did establish a precedent that said the federal government wouldn’t give a pass to those who allow federally funded college campuses to foment anti-Semitism and create a hostile atmosphere for Jews.

Colleges that tolerate such illegal conduct and the activities of anti-Jewish hate groups—as some have under the guise of facilitating a debate about Israel—as well as having curricula that support BDS need to be held accountable. That’s a responsibility Obama appointees ducked and Marcus upheld. And it led directly to Trump’s executive order extending protections to Jewish students against anti-Semitism on campus.

On other issues, Marcus’s office upheld laws against discrimination on the basis of sex and religion, and put in place a system that ensured the rights of those accused of sexual offenses on campuses. Yet was his refusal to turn a blind eye to anti-Semitism that made him a target for left-wing groups and their sympathizers within the federal bureaucracy, who put forward complaints about Marcus steamrolling internal opposition to efforts to enforce the law. They did their best to sling mud at him for his willingness to push the department to do its job.

It’s unfortunate that the toxic partisanship and the debate about Trump that permeates all public discourse these days has led liberal publications like the Times to put him down as a “controversial” figure who is returning to the private sector under a cloud of criticism, rather than an example of someone who took his responsibilities seriously.

When representatives of pro-BDS groups speak of the need “to undo the damage” that both Marcus and the Trump administration have done on these issues, it’s not just a compliment to him and his work. It’s a warning of the danger that lies ahead for vulnerable Jews on college campuses if a future president nominates a successor who is more to their liking and reverses Marcus’s efforts.

Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.

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