Kenneth L. Marcus

Early in his career, Marcus served as lead counsel for the "Berkeley Three," three neighbors in Berkeley, California. The neighbors had protested against a planned low-income housing project for the homeless in their neighborhood in 1993 by the U.S. Department of Housing and Urban Development (HUD). A housing rights group complained about the protests and four federal HUD officials began investigating the neighbors. The neighbors, represented by Marcus and the Center for Individual Rights, sued the officials alleging that the investigation had violated their First Amendment rights. In 1998, a federal district court ruled in favor of the neighbors and the verdict was upheld by the U.S. Court of Appeals for the Ninth Circuit in 2000[8] which, in a unanimous opinion, held that the investigating officials "could not have reasonably believed their actions to be consistent with the First Amendment." Publicity regarding the case forced HUD to change its policy on fair housing investigations.[9]

Marcus served in various roles in the George W. Bush administration, beginning as General Deputy Assistant Secretary at the Office of Fair Housing and Equal Opportunity.[10] Marcus also joined with Department of Justice officials to announce the resolution of various high-profile disabilities lawsuits. In a congressional hearing in 2002 he testified about the agency's performance under his stewardship. He said that the agency's aged-case backlog had reduced from 80 percent to 37.1 percent and that HUD increased the number of accessible housing units for a person with a disability by over 1200 through major cases in the District of Columbia and Boston. He also announced new initiatives to address predatory lending and lending discrimination, as well as enhanced attention to housing problems faced by persons in the Southwest border area.[10]

Marcus served as Staff Director of the U.S. Commission on Civil Rights from 2004 to 2008.[11]

In May 2004, Marcus issued a letter admonishing recipients of federal education funds that in order to comply with Title IX they must designate a Title IX coordinator because OCR had found that some institutions were not complying with the requirement. Members of the National Coalition for Women and Girls in Education had urged OCR to issue such guidance to strengthen Title IX. The Feminist Majority Foundation welcomed the letter.[12]

Marcus joined with then-Assistant Attorney General for Civil Rights Rene Alexander Acosta to issue guidance warning school districts to cease racially segregated activities. Their joint letter warned that practices such as holding segregated high school proms or naming separate race-based sets of recipients for senior-year honors (such as homecoming queen) "are inconsistent with federal law and should not be tolerated."[13]

In an official letter, Marcus also clarified that OCR would interpret Title VI and Title IX as if they protected the rights of ethnic groups that shared a religious faith, to the same extent as if they did not share a common faith. This policy has been applied to Jewish, Muslim, and Sikh students.[14]

In October 2004, Marcus issued a notice amending the regulations implementing Title IX of the Education Amendments of 1972. The purpose of the notice was to facilitate for school districts to offer single-sex public elementary and secondary education.[15]

After he left government, Marcus served as the Lillie and Nathan Ackerman Visiting Professor of Equality and Justice in America at the City University of New York Baruch College School of Public Affairs. He taught courses on Diversity Management, Anti-Semitism and Civil Rights Law, and Law for the Education Administrator. He also oversaw the Ackerman Lecture Series, which invites intellectuals and public figures to spur debate and new thinking on equality and social justice.[5]

While serving on the CUNY faculty, Marcus also directed an anti-Semitism program at the Institute for Jewish and Community Research.

Later in 2011, Marcus founded the Louis D. Brandeis Center for Human Rights Under Law in order to "advance the civil and human rights of the Jewish people and promote justice for all."

In 2012, he featured on The Forward's "Forward 50" list of 50 American Jews who made a significant impact on the Jewish story in the past year. The magazine characterized him as "a former staff director at the U.S. Department of Education, Marcus, 46, has emerged as a vocal proponent of using federal civil rights law to combat perceived campus anti-Semitism in the context of the Israel debate" and mentioned his use of Title VI of the Civil Rights Act of 1964 to counter campus anti-Semitism.[16]

Marcus opposes the BDS movement that calls for comprehensive boycotts against Israel, similar to those imposed on South Africa during the Apartheid era. He believes that BDS is an attempt to "resist the normalization of the Jewish people." However, determining whether BDS is anti-Semitic is a difficult question to answer, according to Marcus.[17] He has therefore developed a list of criteria to determine when, in his opinion, BDS becomes anti-Semitic. The list includes examples such as unconscious hostility towards Jews, and the transmission of negatively coded cultural myths.[17]

Marcus featured in Al Jazeera's documentary The Lobby about the Israel lobby in the United States. While speaking to an undercover reporter he says that his aim is "to have the federal government establish a definition of anti-Semitism that is parallel to the State Department definition," which would mean that a wide variety of criticism of Israel would be categorized as anti-Semitism. He further claimed that BDS and Students for Justice in Palestine are racist hate groups: "You have to show that they are racist hate groups, and that they are using intimidation to get funded, and to consistently portray them that way."[18]

Marcus has helped file or otherwise support Title VI complaints filed with the OCR, all related to the Israeli-Palestinian conflict. Six separate complaints have been filed against UC Irvine, UC Santa Cruz, UC Berkeley, Rutgers University, Barnard College, and Brooklyn College. These complaints alleged that certain activities by pro-Palestinian activist campus groups constituted violations of Title VI anti-discrimination provisions through "harassment" or "intimidation" that "targets" and creates a "hostile educational environment" for Jewish students.

In the first complaint Marcus filed in 2011 he claimed that the chair of the Asian and Middle Eastern Cultures department on Barnard College had "steered" a Jewish student away from taking a class with Joseph Massad, a Palestinian professor and outspoken critic of Israel. He claimed that Massad had created a hostile environment for Jewish students.[16]

University President Lee Bollinger defended Massad and said that it was "extremely unfair" that he was named in the complaint since he played no part in the alleged "steering." The complaint was dismissed by the OCR for lack of evidence which also noted that the student was not even eligible to take Massad's class.[19][20]

OCR dismissed four more of Marcus' complaints "with written determination letters stating that the First Amendment protects speech critical of the state of Israel and that such speech does not constitute a civil rights violation." A fifth case was dismissed due to insufficient evidence and a sixth was settled before it was investigated.[21] Despite losing the court battles, Marcus believed that his complaints had achieved their purpose:[22]

Seeing all these cases rejected has been frustrating and disappointing, but we are, in fact, comforted by knowing that we are having the effect we had set out to achieve.... These cases – even when rejected – expose administrators to bad publicity.... No university wants to be accused of creating an abusive environment.... Israel-haters now publicly complain that these cases make it harder for them to recruit new adherents. Apparently students are being told not to get mixed up in Jewbaiting, rather to focus on their studies and get their degrees. Needless to say, getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.

In October 2017, Trump nominated Marcus to Assistant Secretary of Education for Civil Rights to head OCR. The nomination was confirmed by the US Senate in June 2018. His appointment was opposed by human rights organizations who feared that he would use his position to further his pro-Israel agenda and that he would advocate for a definition of anti-Semitism targeting schools. Over 60 civil rights groups expressed concerns that his view of civil rights was too narrow.[23]

In September 2018, Marcus reopened a seven-year-old Title VI case against Rutgers University, previously closed by the Obama administration. The Zionist Organization of America welcomed the reopening of the case.[24] In May 2020, nine civil rights groups filed a complaint against Marcus, charging that he had abused his authority and side-stepped department policy by reopening the case.[25]

Marcus resigned in July 2020 and returned to head Brandeis Center.[26]

• The Definition of Anti-Semitism, Oxford University Press, 2015
• Jewish Identity and Civil Rights in America, Cambridge University Press, 2010

• "The Second Mutation: Israel and Political Anti-Semitism", inFocus Spring 2008 • Vol. II: No. 1
• "Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964", William and Mary Bill of Rights Journal, Vol. 15, pp. 837–891, 2007
• "The Resurgence of Anti-Semitism on American College Campuses", Current Psychology, Vol. 26, Nos. 3 & 4, 2007
• "The Most Important Right We Think We Have But Don't: Freedom from Religious Discrimination in Education". Nevada Law Journal, Vol. 7, p. 171, 2006
• "Jurisprudence of the New Anti-Semitism", Wake Forest Law Review, Vol. 44, 2009.

Marcus has several times been used as an expert witness:

• Religious Harassment in Public Schools
• Fighting Anti-Semitism

In November 2012, Marcus testified before the U.S. Commission on Civil Rights as an expert on discrimination against Muslim and Arab Americans. His testimony highlights discrimination in public schools and penal institutions, as well as harmful stereotypes in popular culture.