The man who helped redefine campus anti-Semitism

In the early 2000s, as 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, watched uneasily as pro-Palestinian protests rocked college campuses.

“We were seeing a transformation of anti-Israel hostility internationally into what may have looked like a new form of anti-Semitism,” Mr. Marcus recalled in an interview, adding that U.S. universities were at the forefront of that resurgence.

Since then, Mr. Marcus has perhaps tried more than anyone to curb what he sees as a dangerous rise in campus anti-Semitism, often embedded in pro-Palestinian activism.

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 broadening the definition of what can be considered anti-Semitic.

He has also been an outside agitator, filing and promoting federal lawsuits alleging harassment of Jews, which he knows will attract media attention and put pressure on college administrators, students and faculty.

The impact of his life’s work has never been felt more clearly than in recent months, as universities suffered from accusations that they tolerated pro-Palestinian statements and protests that veered into anti-Semitism.

Since Hamas’s Oct. 7 attacks on Israel, the Education Department’s Office for Civil Rights has opened dozens of investigations into allegations of anti-Semitism at colleges and elementary schools, a dramatic increase from previous years.

The bar for opening an investigation is low, but the government has opened cases at institutions as diverse as Stanford, Wellesley, the New School and Montana State University.

Mr. Marcus’s nonprofit, the Brandeis Center, has initiated only a handful of these complaints, but his tactics have been widely copied by other groups.

Mr. Marcus is “the most effective and respected force when it comes to both litigation and the use of civil rights laws” to combat anti-Semitism, said Jeffrey Robbins, a visiting professor at Brown University who once served on the board of the Brandeis Center.

Few, if any, would object to the Office for Civil Rights extending protections to students who face anti-Semitic harassment. But critics say Mr. Marcus’s larger goal is to push a pro-Israel political agenda and push back against speech in support of Palestinians.

His complaints often included ugly details, such as swastikas scrawled on doors and a university’s indifference to them. However, these claims have been mixed with examples of pro-Palestinian statements that some critics say are not anti-Semitic, even if they make Jewish students uncomfortable.

A recent complaint against American University includes the example of a student who said she heard roommates “accusing Israel of committing genocide against the Palestinians.” In November, his center filed a complaint against Wellesley College, saying panelists at an event “downplayed the atrocities committed by Hamas.”

The whole point, free speech advocates claim, is to raise eyebrows and put colleges under federal scrutiny. Many universities have since taken an aggressive stance against certain forms of speech and protest, moves often criticized by academic freedom groups. Columbia, Brandeis University and George Washington University have suspended their Students for Justice in Palestine groups.

“These complaints are having the impact they were intended to have,” said Radhika Sainath, an attorney at Palestine Legal, a civil rights group. “Not to win on merit, but to force universities to investigate, condemn and suppress speech in support of Palestinian rights because they are terrified of bad press and backlash from donors.”

Mr Marcus said the complaints stood on their own, but he nodded that they had a wider impact.

“We recognize that the value generated by these cases is far greater than the narrow resolution could be,” he said.

The goal, he added, is to “change the culture on college campuses so that anti-Semitism is addressed with the same seriousness as other forms of hate or bias.”

Mr. Marcus, 57, said he had not planned to devote his career to combating anti-Semitism.

Growing up in Sharon, Massachusetts, a small town south of Boston, he encountered children throwing rocks at him and shouting, “Go back to your Jewish town,” he said.

But Sharon also had a sizeable Jewish population, and he said he viewed anti-Semitism as a “relic of the past.”

His Depression-era parents idolized Franklin Delano Roosevelt, and in high school, Mr. Marcus worked as an intern for liberal Congressman Barney Frank.

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 fascinated with the conservative legal movement. And as a young corporate litigator, he took on First Amendment cases that lured him into civil rights work.

Until 2004, he served as interim chief of the Education Department’s Office for Civil Rights, where he helped redefine the way the department handles anti-Semitism cases.

At that time, the office refused to accept these cases. That’s because it’s tasked 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 an official one letterMr. Marcus wrote that the agency’s enforcement of Title VI would include ancestry — that is, students who are harassed because of their ethnic and religious characteristics, including “Arab Muslims, Jewish Americans and Sikhs.” In 2010, the Obama administration confirmed and clarified this interpretation of Title VI.

Complaints about common ancestry began with a trickle. The first, a month after Mr. Marcus’ 2004 letter, was filed by the Zionist Organization of America against the University of California, Irvine. The complaint included allegations of anti-Semitism related to the Middle East conflict, such as a sign posted by a student group that read “Israelis love killing innocent children.”

In those early years, Mr. Marcus and the ZOA were the key players in pushing the Title VI anti-Semitism cases, said Susan Tuchman, a ZOA official

She recalled that an official from a major Jewish advocacy group, whom she declined to name, yelled at her on the phone, saying her complaint was counterproductive and targeted speech protected by the First Amendment.

Mr. Marcus “understood when few others did,” she said, “that campus anti-Semitism was a serious problem and that Jewish students did not have the legal protections they needed.”

His independent advocacy began in earnest in 2011, when Mr. Marcus founded the Brandeis Center, based in Washington (and not affiliated with Brandeis University in Massachusetts).

There were larger, more established Jewish groups like the Anti-Defamation League, but Mr. Marcus said he wanted his nonprofit to focus on legal work on campus.

Media attention was an important part of his strategy. He explained his reasoning in one 2013 column in the Jerusalem Postafter President Obama’s Office for Civil Rights dismissed an initial wave of such complaints, including the Irvine case, on the grounds that they were protected speech.

“These cases — even when rejected — expose the administration to bad publicity,” Marcus wrote, adding, “When a university shows that it is not taking initial complaints seriously, it harms it with donors, faculty, political leaders, and others.” potential students.”

Mr Marcus said the complaints provided “a very strong incentive for outrageous behaviour”.

“Of course,” he wrote, “getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.”

In 2018, his tactics led some liberal groups to oppose his nomination as the Education Department’s civil rights chief.

The Leadership Conference on Civil and Human Rights, a coalition of liberal groups, wrote in a letter to senators that Mr. Marcus had attempted to use the grievance process “to weaken a particular political viewpoint rather than address unlawful discrimination.”

The letter also accused Mr. Marcus of undermining policies like race-conscious admissions that protected other groups. The Senate narrowly confirmed him in an internal party vote.

After taking office in 2018, Mr. Marcus made no attempt to make peace with his critics.

He immediately reopened a Title VI case brought by the Zionist Organization of America against Rutgers University in New Brunswick, New Jersey. The ZOA had appealed the dismissal of its case due to insufficient evidence.

He used the Rutgers case to adopt, for the first time, a definition of anti-Semitism from the International Holocaust Remembrance Alliance that includes Israel displaying a “double standard” or claiming its existence is a “racist endeavor.”

For Mr. Marcus, the definition helped put pressure on colleges to no longer tolerate behavior toward Jews that would be unacceptable if it targeted racial minority groups or LGBTQ students.

But for pro-Palestinian supporters, Mr. Marcus used the definition to crack down on their speech. They said the Education Department already had the authority to investigate and punish harassment, and this new definition only confused the administration about what was allowed.

“No one is saying we need the IHRA definition so we can take action against Nazis who talk about killing Jews or using classic anti-Semitic phrases about Jews, media and banks,” said Lara Friedman, the president of the Foundation for Peace in the United States Near East. The definition is more about “addressing this other supposed anti-Semitism.”

The next year, the Trump administration issued a comprehensive executive order to combat anti-Semitism and directed all agencies to consider the IHRA definition when reviewing Title VI complaints.

The complaints appear to be having an impact on campus culture — for better or for worse, depending on who you ask. The Education Department’s Office for Civil Rights said it has opened 89 common ancestry investigations in colleges and K-12 schools since Oct. 7, accounting for more than 40 percent of cases opened since 2004.

Biden administration Education Department officials said there is no tension between the First Amendment and Title VI. They said universities can prevent hostile learning environments without restricting free expression, for example, by properly investigating complaints, establishing student support services or condemning hate speech.

But academic freedom advocates counter that the administration will do everything it can to avoid complaints altogether, especially now that the department has accepted the IHRA definition. The executive order remains in effect and the Biden administration is considering a related rule.

Last month, Debbie Becher, a sociology professor at Barnard College, wrote in the student newspaper that the school’s president asked them to interrupt the screening of “Israelism,” a documentary about Israel.

At their meeting, President Laura Rosenbury expressed concerns about Title VI, noting that the film was cited in a lawsuit accusing Harvard of anti-Semitism. Ms. Rosenbury did not respond to interview requests.

“My arguments that this was blatant censorship, a violation of academic freedom, and a threat to Barnard’s culture fell on deaf ears,” Dr. Becher, who conducted the event.

Mr. Marcus continues to press his case. The Brandeis Center, which began as a one-man operation, now has 13 litigators.

He said he was happy with that but would not rule out another term in a future Trump administration.

“I’ve been focused on this fight my entire career,” he said, “and sometimes it feels like everything has come to a head right at this moment.”

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