President Donald Trump’s recent nomination of Kenneth Marcus to the important post of Assistant Secretary for Civil Rights at the U.S. Department of Education constitutes a direct threat to academic freedom and freedom of association on college and university campuses.
A rightwing ideologue, Marcus abuses civil rights law by using it to suppress student criticism of Israeli policies on college campuses, particularly those involved in the campaign for boycotts, divestment, and sanctions. The founder, director, and general counsel of the ironically named Louis D. Brandeis Center for Human Rights Under Law, Marcos sues colleges and universities for not suppressing pro-Palestinian activism.
These lawsuits claim that allowing supporters to advocate for Palestinian rights creates an anti-Semitic climate for Jewish students. Erwin Chemerinsky, dean of the School of Law at the University of California, Berkeley and renowned First Amendment scholar, has said that “any administrator in a public university who tried to follow Professor Marcus’s approach would certainly be successfully sued for violating the First Amendment.”
Every one of Marcus’s “Title VI” lawsuits have been thrown out by the courts, but not until professors and administrators have been forced to spend countless hours gathering the necessary documentation and other materials to defend themselves. Combined with the bad publicity such litigation brings to the targeted universities, his threats have led administrators to take unprecedented actions to discourage activities by student groups supportive of Palestinian rights.
The vast majority of boycott, divestment, and sanctions campaigns at American colleges and universities simply call for divesting from a handful of U.S. companies that directly support the occupation and settlements, which are illegal under international law. But Marcus makes no distinction between those who oppose the existence of a Jewish state of Israel and those who support Israel’s right to exist but believe Israeli occupation forces and settlers should return to Israel and allow the Palestinians of the West Bank to have their own state as well.
In Marcus’s view, for example, campaigning against Caterpillar’s sales of bulldozers—used by Israeli occupation forces to demolish thousands of Palestinian homes—somehow constitutes discrimination against Jewish students. This defies credibility, particularly since many Jewish students at American universities actively oppose such human rights abuses by Israel’s right-wing government.
In Marcus’s view, campaigning against Caterpillar’s sales of bulldozers—used by Israeli occupation forces to demolish Palestinian homes—somehow constitutes discrimination against Jewish students.
He has called on the University of Wisconsin to take “necessary disciplinary action” against the Associated Students of Madison for what he labeled “anti-Semitic” and “anti-white” speech in regard to a resolution calling on the university system to divest from private prisons, arms manufacturers, and fossil fuel corporations. He has made inflammatory and demonstrably false claims that Arab and Muslim students are threatening and that they support terrorism and has called on the federal government to withhold funding from Middle Eastern Studies programs that include faculty and speakers he considers to be “anti-Israel.”
Marcus’s work has almost exclusively focused on discrediting opponents of Israel’s Netanyahu government. There is almost no evidence that he has ever focused on racism, homophobia, Islamophobia, and other forms of discrimination—including sexism and sexual harassment—that his new position is supposed to address. In 2004, while working in the Bush administration, Marcus wrote a letter to college and university administrators regarding what he considered to be discrimination against white male Christian students.
Even worse, Marcus’s false accusations of anti-Semitism will make it far more difficult to go after real acts of anti-Semitism, the vast majority of which comes from the far right rather than left-leaning college students. This may explain this appointment. To avoid focusing on the dangerous bigotry of right-wing elements emboldened by the Trump presidency, he is giving this important civil rights post to someone who instead goes after the free expression of pro-Palestinian student activists.
In one recent legal action, Marcus filed a complaint against the University of California, Berkeley, describing student activities opposing Israeli policies in the West Bank and calling for divestment from companies supporting the occupation, “reminiscent of Nazi Germany.”
There is almost no evidence that Marcus has ever focused on racism, homophobia, Islamophobia, and other forms of discrimination—including sexism and sexual harassment—that his new position is supposed to address.
Marcus has also been caught falsifying incidents. A formal university investigation of his claim that an “angry mob” of pro-Palestinian activists terrorized Jewish students at the University of California at Irvine revealed that the activists were simply chanting outside an auditorium after having been locked out of what had been advertised as a public screening of a controversial film. Similarly, Marcus’s website claims that the University of California at Santa Barbara had agreed to his demands that outside observers moderate speakers and classes addressing the Israeli-Palestinian conflict. He also said the university agreed that students and staff would be required to take a “training” by an organization supportive of Israel’s rightwing government.
According to the university’s chancellor Henry Yang, however, “we did not sign any agreement to implement any new programs or practices.” He reiterated the university’s commitment to supporting and strengthening already-existing trainings addressing anti-Semitism, Islamophobia, racism, gender and/or gender identity or expression, and citizenship status.
Marcus has also promoted legislation on both the state and national level which would equate criticism of Israel with anti-Semitism, a move essentially censoring pro-Palestinian advocacy. Every one of his efforts has failed due to constitutional concerns.
In his new position at the Department of Education, however, Marcus will be able to pursue his attacks on campaigns for human rights and corporate responsibility with the full force of the federal government behind him.
Stephen Zunes, a professor of politics and coordinator of Middle Eastern Studies at the University of San Francisco, serves on the board of California Scholars for Academic Freedom.