In the early 2000s, when the uprising known as the Second Intifada instilled fear in Israelis through a series of suicide bombings, Kenneth Marcus, then an official at the U.S. Department of Education, realized that pro-Palestinian protests were shaking college campuses. I looked at him with a feeling of anxiety.
“We were seeing internationally that anti-Israel hostility was morphing into what looked like maybe a new form of anti-Semitism,” Marcus said in an interview, adding that American universities were at the forefront of that resurgence. He added that he was standing.
Since then, Mr. Marcus, perhaps more than anyone else, has tried to quell what he sees as a dangerous rise in anti-Semitism on campus, which is often embedded in pro-Palestinian activities.
He did this as a government insider in the Bush and Trump administrations, helping to clarify protections for Jewish students under the Civil Rights Act of 1964 and expanding the definition of what is considered anti-Semitism. did.
He has also been an outside agitator, filing and promoting federal complaints of harassment against Jews that would garner media attention and put pressure on university administrators, students, and faculty. I understand.
The impact of his life's work has never been more felt than in recent months, as universities reel from accusations that they have tolerated pro-Palestinian speech and anti-Semitic protests.
Since the Oct. 7 attack on Israel by Hamas, the Education Department's Office for Civil Rights has opened dozens of investigations into allegations of anti-Semitism at universities and K-12 schools, a significant increase from the previous year. It has increased.
Although the hurdles for starting an investigation are low, the government is investigating the incident at various institutions, including Stanford University, Wellesley College, New School University, and Montana State University.
Marcus' nonprofit, the Brandeis Center, has initiated only a handful of complaints, but his tactics have been widely copied by other organizations.
Jeffrey Robbins, a former Brandeis Center director and visiting professor at Brown University, said Marcus is “the single most effective and respected force in both litigation and the use of civil rights law” to combat anti-Semitism. ”. .
Few, if any, would object to the Office for Civil Rights extending protections to students facing anti-Semitic harassment. But critics say Mr. Marcus' larger ambitions are to promote pro-Israel policies and police speech supporting Palestinians.
His complaints often included ugly details, such as swastikas scrawled on doors and the university's indifference to swastikas. But some critics say these claims, mixed with examples of pro-Palestinian speech, are not anti-Semitic, even if they make Jewish students uncomfortable.
Recent complaints against American University include the example of a student who said he heard his suitemate “accusing Israel of committing genocide against Palestinians.” In November, the center filed a complaint against Wellesley College, accusing panelists at the event of “minimizing Hamas atrocities.”
The point, free speech advocates say, is to stir things up and put the university under federal scrutiny. Since then, many universities have taken aggressive stances against certain forms of speech and protest, a move often condemned by academic freedom groups. Columbia University, Brandeis University, and George Washington University have suspended chapters of Students for Justice in Palestine.
“These complaints are having the impact they were intended to have,” said Radhika Sainath, a lawyer with the civil rights group Palestine Legal. “Not to win on merit, but to force universities, fearing bad press and backlash from donors, to investigate, denounce, and suppress speech that supports Palestinian rights.”
Marcus said the complaint has merit in its own right, but nods to its greater impact.
“We recognize that the value achieved through these cases is far greater than narrow solutions,” he said.
He added that the goal is to “change the culture on college campuses so that anti-Semitism is treated with the same seriousness as other forms of hatred and bigotry.”
Barney Frank and Reading Ayn Rand's Internship
Marcus, 57, said he never intended to dedicate his career to fighting anti-Semitism.
Growing up in Sharon, Massachusetts, a small town south of Boston, he encountered children who threw rocks and yelled at them to “go back to your Jewish town.”
But he said Sharon had a significant Jewish population and believed anti-Semitism was “a relic of the past.”
Her Depression-era parents were admirers of Franklin Delano Roosevelt, and she interned for liberal Congressman Barney Frank in high school.
Mr. Marcus' politics began to change at the local library, where he read books by conservative thinkers such as Thomas Sowell and Ayn Rand. While studying at Williams College and the University of California, Berkeley School of Law, he became captivated by the conservative legal movement. And he was drawn into civil rights work as a young corporate litigator, litigating First Amendment cases.
By 2004, he became interim leader of the Education Department's Office of Civil Rights and helped reshape how the department reviews anti-Semitic incidents.
At the time, the department refused to accept such cases. That's because he was charged with enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin, but not religion.
But in a public letter, Marcus said the agency's Title VI enforcement includes ancestry, meaning people who are “Arab-Muslim, Jewish-American, or Sikh” because of their ethnic or religious characteristics. I wrote that this includes students who are being harassed. In 2010, the Obama Administration approved and clarified its interpretation of Title VI.
Complaints about common ancestry began little by little. The first letter, submitted a month after Marcus's 2004 letter, was submitted by the Zionist Organization of America to the University of California, Irvine. The complaint also included accusations of anti-Semitism related to the Middle East conflict, such as a placard by a student group that read “Israelis like to kill innocent children.”
In the early years, Marcus and the ZOA were the main drivers of Title VI anti-Semitism lawsuits, said ZOA official Susan Tuchman.
She said an official from a major Jewish advocacy group, who she did not name, yelled at her on the phone and told her that her complaints were counterproductive and that they were targeting targets protected by the First Amendment. I remembered that I said that it was a free speech.
Marcus “understood when few others did that anti-Semitism on campus was a serious problem and that Jewish students did not have the legal protections they needed. ” she said.
His independent advocacy work began in earnest in 2011, when Mr. Marcus founded the Washington-based Brandeis Center (no relation to Brandeis University in Massachusetts).
While there were larger, more established Jewish groups like the Anti-Defamation League, Marcus said he wanted the nonprofit to focus on legal work on campus.
Media attention was a key part of his strategy. He explained his rationale in a 2013 Jerusalem Post column after President Obama's Office for Civil Rights dismissed an earlier wave of such complaints, including the Irvine case, as involving protected speech. did.
“These lawsuits, even if dismissed, expose administrators to negative publicity,” Marcus wrote, adding, “If the university shows that it will not seriously address the initial complaint, donors “It will have a negative impact on teachers, political leaders, and prospective students,” he added.
Marcus said the complaints create a “very strong deterrent to outrageous behavior.”
“Needless to say, getting involved in a civil rights lawsuit is not a good way to build a resume or impress a prospective employer,” he wrote.
In 2018, his tactics led some liberals to oppose his appointment as civil rights director at the Department of Education.
The Leadership Conference on Civil and Human Rights, a coalition of liberal groups, said in a letter to senators that Marcus was using the charges “rather than to address unlawful discrimination” to “cool certain political views.” I wrote that I was trying to take advantage of the procedure.
The letter also accused Marcus of undermining policies that protect other groups, such as race-conscious admissions. The Senate confirmed him on a narrow party-line vote.
Antisemitism, redefined
After taking office in 2018, Marcus made no attempt to reconcile with his critics.
He immediately reopened a Title VI lawsuit filed by the Zionist Organization of America against Rutgers University in New Brunswick, New Jersey. ZOA had appealed the dismissal of the lawsuit due to insufficient evidence.
He used the Rutgers incident to become the first to accept the definition of anti-Semitism proposed by the International Holocaust Remembrance Alliance. That definition includes imposing “double standards” on Israel and calling Israel's existence a “racist act.”
For Marcus, this definition helped put pressure on universities not to tolerate acts against Jews that would be unacceptable when directed against racial minority groups or LGBTQ students.
But for pro-Palestinian supporters, Marcus used that definition to try to suppress their speech. They said the Department of Education already has the authority to investigate and punish harassment, and this new definition will only confuse administrators about what is acceptable.
Lara Friedman, president of the Middle East Peace Foundation, said: “No one thought we needed the IHRA definition to go after the Nazis talking about killing Jews and the classic anti-Semitic tropes about Jews and the media and banks. I didn't say that.'' Rather, the definition is “about understanding this other form of alleged anti-Semitism.”
The following year, the Trump administration issued a comprehensive executive order on combating anti-Semitism, directing all agencies to consider the IHRA definition when investigating Title VI complaints.
Complaints seem to be influencing campus culture, for better or for worse, depending on who you ask. The Department of Education's Office of Civil Rights has opened 89 common ancestry investigations against colleges and K-12 schools since Oct. 7, accounting for more than 40% of similar cases started since 2004. announced that it was occupied.
Education Department officials in the Biden administration said there is no tension between the First Amendment and Title VI. They said universities should prevent hostile learning environments without restricting freedom of expression, including by appropriately investigating complaints, creating support services for students, and condemning hate speech. said that it can be done.
But academic freedom advocates counter that administrators will do everything in their power to avoid any complaints, especially now that the department has accepted the IHRA definition. The executive order remains in effect, and the Biden administration is considering regulations on this issue.
Debbie Boettcher, a sociology professor at Barnard College, wrote in the student newspaper last month that the school's president had asked her to “pause” screenings of the documentary “Israelism,” which criticizes Israel.
During the meeting, President Laura Rosenberry expressed concerns about Title VI and noted that the film was cited in a lawsuit accusing Harvard of anti-Semitism. Rosenberry did not respond to requests for an interview.
“My arguments that this was blatant censorship, a violation of academic freedom, and dangerous to Barnard's culture fell on deaf ears,” wrote Dr. Boettcher, who organized the event.
Mr. Marcus continues to pursue his case. The Brandeis Center started as a private practice, and now he has 13 litigators.
He said he's happy there but wouldn't rule out another term in a future Trump administration.
“I've spent my career focused on this fight, and sometimes it seems like everything was leading up to this moment,” he said.