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Divided Senate confirms controversial figure to head Education Department’s Office for Civil Rights

The Senate votes Thursday on the nomination of Kenneth Marcus to head the Education Department’s Office of Civil Rights. (Image from U.S. Senate live stream)
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A divided Senate voted Thursday to confirm Kenneth L. Marcus as the Education Department’s assistant secretary for civil rights despite critics’ concerns that he will not protect the rights of all students.

Marcus, who had the same duties at the department for two years during the administration of President George W. Bush, has been president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law in Washington. That center has as its mission the advancement of the “civil and human rights of the Jewish people and to promote justice for all.” His biography says he founded the center in 2011 to “combat the resurgence of anti-Semitism in American higher education.”

The Senate voted 50 to 46 to confirm Marcus to run the Office for Civil Rights, which has been the subject of criticism under Education Secretary Betsy DeVos. Critics say she has undermined the civil rights of students, and they have said they fear Marcus will support her.

Under DeVos, the Education Department’s Office for Civil Rights has dismissed hundreds of civil rights complaints and rescinded Obama-era protections for the LGBTQ community. It also changed the way schools should approach sexual assault cases after saying the Obama administration had not given the accused enough consideration.

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A Jan. 11 letter sent to senators on behalf of the Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations, and 31 other groups urged that Marcus not be confirmed. It spelled out concerns about his record opposing affirmative action and his positions on the rights of LGBTQ and immigrant students and students with disabilities. It also said:

“Mr. Marcus, in his previous role as acting assistant secretary at OCR from 2002 to 2004, was involved in the development of regulations governing single-sex education that relied on sex stereotypes. During his confirmation hearing, Mr. Marcus supported Secretary DeVos’ rescission of important guidance clarifying the responsibilities of educational institutions in cases of sexual assault and he would not commit to continuing to publish the list of colleges and universities under investigation regarding sexual assault. These actions fail to demonstrate a commitment to protecting students from sex discrimination as is required under Title IX of the Education Amendments of 1972.”

Sen. Lamar Alexander (R-Tenn.), who supported Marcus, said in a statement  Thursday:

“He enjoys wide support. Sixty-eight organizations signed letters supporting his nomination including Hillel International, the largest Jewish campus organization in the world which had this to say: 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.’ “

Some critics have expressed concern that Marcus, a strong advocate for Israel, will attempt to restrict the rights of students who are critics of the Jewish state, though his supporters say he will protect all students. He has criticized 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 2016, he wrote a piece published by Newsweek calling BDS’s academic boycott “arguably anti-Semitic” and criticized academic organizations that supported it.

His supporters say any concern that he will not protect the rights of all students is unfounded. At his confirmation hearing Dec. 5, he told senators he had worked to protect the rights of all students when he ran the office during the Bush administration in the aftermath of the Sept. 11, 2001, terrorist attacks:

The Office of Civil Rights “also issued policy guidance, during my tenure, clarifying the rights of Jewish, Sikh, Muslim, and other religious minority students from discrimination on the basis of their ethnicity or national origin. No student at a federally assisted school or college should face this form of discrimination or harassment. This is a subject on which I have continued to dedicate a significant portion of my time since leaving the government.”

Marcus served as staff director of the U.S. Commission on Civil Rights and taught at the City University of New York’s Baruch College School of Public Affairs. He is the author of a 2015 book titled “The Definition of Anti-Semitism” and a 2010 book, “Jewish Identity and Civil Rights in America.”

Rahul Saksena, a staff attorney for the advocacy group Palestine Legal, said in a statement:

“Marcus’ record clearly demonstrates that his primary mission is not to protect students’ civil rights; it is to shield Israel from criticism. It’s unconscionable that the U.S. Senate has confirmed him to oversee civil rights enforcement in Betsy DeVos’ Department of Education even as Israel continues to gun down Palestinians protesting for their rights in Gaza.”