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Why Trump’s pick to head the Education Department’s civil rights office is so controversial

President Trump during a cabinet meeting last week. (Jabin Botsford/The Washington Post)

Kenneth L. Marcus, President Trump’s pick to head the Education Department’s Office of Civil Rights, is coming under fire from critics who say they fear he will not protect the rights of racial and ethnic minority students. And his ardent support of Israel has sparked protests.

Marcus, president of a Jewish center for human rights who previously served in the George W. Bush administration, was approved Thursday by the Senate Health, Education, Labor & Pensions Committee along with two other key Education Department officials. They include Mitchell Zais, a former South Carolina state schools superintendent who will serve as deputy to Education Secretary Betsy DeVos. The full Senate still must vote on the nominations.

Marcus was tapped by Trump shortly after the president was criticized for blaming “both sides” for violence that erupted in Charlottesville in August between white supremacists, neo-Nazis and Ku Klux Klan members and people who were protesting their presence.

If confirmed, as expected, Marcus will be assistant secretary of civil rights, a position with which he is familiar; during the Bush administration, he was staff director of the United States Commission on Civil Rights and he carried out the duties of the assistant secretary at the department.

He would take over duties that have for months been carried out by Acting Assistant Secretary Candice Jackson. She also was a controversial department official, in part for saying that 90 percent of campus sexual assault complaints are the result of too much drinking. She later apologized.

Trump nominee for No. 2 spot at Education Department stumbles on key questions at confirmation hearing

Marcus is president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law in Washington, which says its mission is “to advance the civil and human rights of the Jewish people and to promote justice for all.”  His official biography says he founded the center in 2011 to “combat the resurgence of anti-Semitism in American higher education.”

Marcus has been vocal in criticizing supporters of what is known as the Palestinian-led BDS — or Boycott, Divestment, Sanctions — movement, which works to diminish international support for Israel economically, politically and academically. In a 2016 piece he wrote for Newsweek, Marcus called BDS’s academic boycott “arguably anti-Semitic” and criticized academic organizations that supported it.

He has urged universities not to support calls to divest from Israel in support of  BDS, and he has filed complaints with the Office for Civil Rights against several University of California campuses alleging anti-Semitic harassment of students. (The complaints were rejected.) In 2014, his center was one of a number of groups asking Congress to “end or mend” federal funding for Middle East studies centers with what it called “biased, politicized, anti-Israel and anti-American programming.

At his confirmation hearing last month before the Senate panel, Palestinian supporters sat in the audience with their mouths taped shut, an effort to underscore their accusation that Marcus does not support free speech and that he makes no distinction between being anti-Israel and anti-Semitic.A nonprofit group called Muslim Advocates sent a letter to Congress expressing concerns about Marcus’s positions on a range of issues, including rights for LGBTQ students. It said in part:

While we take no position on the foreign policy merits of Mr. Marcus’s views regarding the Middle East, his hostility to the civil right of free speech is well documented.  He is a vocal antagonist of the right for college students who criticize Israel to express themselves and has even openly advocated for the abuse of OCR’s civil rights complaint process to chill the speech of those with whom he disagrees.

Marcus is supported by Republican senators on the Health, Education, Labor & Pensions Committee, including Lamar Alexander, who is chairman. Alexander, of Tennessee, said at Marcus’s confirmation hearing that Marcus “has a deep understanding of civil rights issues.” And he said the committee had received letters from 13 individuals and organizations supporting Marcus’s nomination, including one from Hillel International, the largest Jewish campus organization in the world, which said:

Mr. Marcus has been a longtime champion for civil rights and for college students. We have worked personally with him on several campuses across the country in response to specific issues of bigotry and discrimination, and we have found him to be extremely skilled and knowledgeable in civil rights laws. Mr. Marcus has been a true leader in fighting discrimination.”

But several civil rights organizations have  come out against Marcus, including UnidosUS, the nation’s largest Hispanic civil rights and advocacy organization, and the National Urban League. The groups issued a joint statement saying that Marcus had a “troubling record with regard to enforcing the rights of immigrant students and English learners, and past attempts to undermine critical policies aimed at remedying racial discrimination, including affirmative action.”

Marc H. Morial, president and CEO of the National Urban League, said in the statement: “Mr. Marcus has a demonstrated history of hostility toward affirmative action and all race-based remedies to discrimination. He lacks a commitment to enforcing civil rights protections for students of color, and does not believe in disparate-impact or unintentional discrimination. All of which makes him unfit to lead ED’s civil rights division. America’s children both require and deserve an assistant secretary for civil rights who believes it is their birthright to receive a great, equitable public education.”

At his confirmation hearing in December, Marcus spoke about his experience in the Bush administration and said he worked hard to protect the educational rights of minorities and English-language learners. He said that all students, including transgender students, “deserve equal access to education and should not be harassed and bullied.”

But he would not commit to investigating all complaints, saying they would be handled on a case-by-case basis. And he said he wasn’t sure if the department had jurisdiction to protect the rights of undocumented students, as seen in this exchange with Sen. Elizabeth Warren (D-Mass.):

WARREN: Given the climate of fear and uncertainty that Donald Trump has created for Dreamers, if the school said happy to enroll all 5-year-olds in kindergarten, but kids who can’t prove that they are citizens will be barred at the door. Would your office step in to protect the civil rights of those students from discrimination?
MARCUS: Well, to my ear, senator, that sounds like a violation of law, but I don’t know whether it would be a violation of one of the laws of which OCR has jurisdiction. There are certain rules here that would fall under the Equal Protection Clause. We would step in, if I were confirmed, if there’s a violation of one of OCR’s statutes.

Here’s another exchange between Warren and Marcus:

WARREN: Mr. Marcus, if confirmed, you would be responsible for protecting the civil rights of American students at a time when Nazis and white supremacists are marching across college campuses with tiki torches, and many young people are literally afraid to go to school because of the hateful climate that has been fostered by Donald Trump. If confirmed, will you commit to fully enforcing civil rights laws and protecting all students from discrimination and harassment?
WARREN: Good. So, I just want to find out a little more detail about what that commitment means to you, and I thought we might go through a few fact situations. So, let’s start with an easy one. Say there’s a school district that has some mostly white schools and some mostly black schools, and let’s say that the mostly black schools have less experienced teachers, teachers with fewer qualifications, those schools have fewer books, they have fewer computers in the library, fewer AP courses available. By any objective measure, those schools have clearly been shortchanged. If confirmed, would your office step in to protect the civil rights of that district’s black students?
MARCUS: If I were confirmed, I would ensure that any complaints alleging violation of Title VI would be — would be reviewed.
WARREN: Mr. Marcus, I don’t want to start a dance here. This is a set of facts that come to you in your position, if you are confirmed, and my question is are those facts adequate? Will you step in to protect the civil rights of the district’s black students?
MARCUS: Senator, I would certainly hope to be able to provide protection for the civil rights of those black students to the extent possible under law, but what . . .
WARREN: But, that’s the question I’m asking how you see this. You’re allowed to answer hypotheticals, here, so this one should be easy. A yes or a no, would you step in on those facts, or not?
MARCUS: I appreciate that, senator, but unfortunately in my experience the cases that OCR deals with are much more complicated than hypotheticals.
WARREN: So, you don’t think that’s enough evidence, what I’ve just said?
MARCUS: I think I would need to look at it very carefully.

After questioning him, Warren said: “I don’t think we need someone in this position whose view of civil rights enforcement is to do as little as possible to protect as few students as possible. I think that would be bad for students overall, and with Betsy DeVos as secretary of education, I think it would be even worse.”

The Senate committee also approved Zais as the department’s No. 2. He is a former president of a college of the Evangelical Lutheran Church in America.

And it approved Jim Blew, who was nominated to be assistant secretary for planning, evaluation and policy development. He was director of the Walton Family Foundation’s K-12 reform efforts for nearly a decade, and also national president of StudentsFirst, the reform organization started by former D.C. schools chancellor Michelle Rhee.

There are 15 positions in the Education Department that must be confirmed, and so far the committee has confirmed four. One nominee was withdrawn by Trump, and six positions have no nominee awaiting committee attention, according to a Washington Post tally. There are five positions with pending nominees, including Marcus, Zais and Blew.

The committee announced Thursday it would hold a hearing next week to consider Trump’s nomination of Frank Brogan, a former lieutenant governor of Florida and former chancellor of the Pennsylvania State System of Higher Education, as assistant secretary for elementary and secondary education.