Education Department spokeswoman Elizabeth Hill said Marcus would not be available for interviews until after he is confirmed.
Marcus, president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, had previously written about his opposition to a Palestinian-led movement to push universities to divest from Israel, calling it anti-Semitic. That has led some to worry he will work to restrict the speech of critics of Israel, but his supporters say that concern is unfounded.
“As both a civil rights advocate and constitutional expert, he fully grasps how civil liberties protections and free speech rights work hand in hand,” supporters wrote in a letter urging his confirmation. More than 60 organizations — including the Academic Council for Israel and the National Conference on Jewish Affairs — signed on.
During his December confirmation hearing, Marcus spoke about his work advocating for a Virginia Tech student. That student faced harassment after raising concerns about an instructor sharing anti-Semitic views and Nazi propaganda online, and Marcus also raised concerns about rising anti-Semitism on college campuses.
When Marcus held the post under the Bush administration, the office “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,” Marcus said in December. “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.”
But critics assailed him for aligning his views with Education Secretary Betsy DeVos, who has raised their ire by rescinding guidance protecting transgender students and guidance that outlined how schools should investigate allegations of sexual harassment and violence. DeVos has also been weighing whether to pull back guidance that called on schools to scrutinize disparities in discipline between white students and students of color. That guidance allows the Office for Civil Rights to step in if it finds that blacks students are disciplined more harshly than white students for the same infractions, for example.
Marcus’s nomination comes at a time when DeVos has moved to scale back the role of the Office for Civil Rights, proposing cuts to staff and curtailing their work on issues around transgender students seeking redress when they are denied access to bathrooms aligning with their gender identity.
“Mr. Marcus’ own record of anti-civil rights positions and his failure to articulate clear support for robust civil rights enforcement during his confirmation hearing are all the more troubling given the anti-civil rights actions of Secretary of Education Betsy DeVos and President Trump,” said Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, a national coalition of 200-plus civil rights groups. “Students and families deserve an assistant secretary who will represent their interests, enforce the law, and stand up to the Trump-DeVos discriminatory agenda.”