Kenneth L. Marcus

Kenneth Marcus
Assistant Secretary of Education for Civil Rights
In office August 6, 2018 – July 31, 2020
President	Donald Trump
Preceded by	Catherine E. Lhamon
Succeeded by	Kimberly Richey (acting) Catherine E. Lhamon
Personal details
Born	Sharon, Massachusetts, U.S.
Education	Williams College (BA) University of California, Berkeley (JD)

Kenneth L. Marcus is an American attorney, academic, and government official. He is the founder and leader of the Brandeis Center. He was the Assistant Secretary for Civil Rights at the United States Department of Education from August 6, 2018 through July 9, 2020, after which he resumed his position at the Brandeis Center.

Marcus previously served as the Lillie and Nathan Ackerman Chair in Equality and Justice in America at Baruch College in New York. He also previously served as staff director of the United States Commission on Civil Rights (OCR).

Education

Kenneth L. Marcus received a Bachelor of Arts, magna cum laude, from Williams College in June 1988. He was elected a member of Phi Beta Kappa in June 1987. He received a Juris Doctor from University of California, Berkeley, School of Law, Boalt Hall in 1991.

Career

Berkeley Three case

Early in his career, Marcus served as lead counsel for the Berkeley Three, three neighbors in Berkeley, California who 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 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.

Fair Housing Enforcement

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. 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 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.

Office for Civil Rights

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

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.

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."

In an official letter, Marcus also clarified in 2004 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. The policy has been applied to Jewish, Muslim, and Sikh students. It was cited and strengthened by the Obama, Trump and Biden administrations, eventually becoming coined as the “Marcus Doctrine.”

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.

James S. Murphy, in The Atlantic wrote about Marcus's service at OCR: "With Marcus, the administration started taking a stronger approach to enforcing civil-rights laws. During his term, he issued guidance reminding schools of the need to have a Title IX officer and clarifying that Title VI also protected students of faith from discrimination." Marcus' work spearheaded OCR's efforts to better enforce and protect civil-right laws in America. Marcus was credited by The Wall Street Journal with having taken "an agency in disarray" that lacked "basic management controls," and turned it into an agency that "deserves a medal for good governance."

Academic career

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.

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

Civil rights advocacy

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

In 2012, he was 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.

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. 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.

Described as “The Man Who Helped Redefine Campus Antisemitism,” Marcus was featured on the front page of the Sunday New York Times on March 24, 2024. The article highlights his reasonings for pursuing civil rights law, work within the U.S. Department of Education, and his push for the acceptance of the IHRA working definition of antisemitism. Marcus is described as “the single most effective and respected force when it comes to both litigation and the utilization of the civil rights statutes” to combat antisemitism by a visiting professor at Brown University, who once served on the Brandeis Center board. The Times also cites counterarguments against Marcus, specifically from pro-Palestine groups and individuals. For example, lawyer Radhika Sainath explained that campus antisemitism cases “force universities to investigate, condemn and suppress speech supporting Palestinian rights, because they are so fearful of bad press and donor backlash.” Other critics criticize Marcus’s efforts to win acceptance for the IHRA Definition as cracking down on free speech.

Education lawsuits

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 the chair of the Asian and Middle Eastern Cultures department at 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 Massad had created a hostile environment for Jewish students.

University President Lee Bollinger defended Massad and said it was "extremely unfair" 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 and also noted the student was not even eligible to take Massad's class.

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.

Assistant Secretary of Education for Civil Rights

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. Marcus was endorsed by a variety of groups, including B'nai B'rith and The American Jewish Committee, and opposed by groups including The U.S. Campaign for Palestinian Rights and Jewish Voice for Peace.

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. 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. Jonathan Tobin wrote such criticisms are "toxic partisanship," and that even Marcus's acknowledge his accomplishments and that he has done "as much, if not more, to fight anti-Semitism on college campuses as anyone in government has ever done." Ian Lustick, writing in The Forward, deplored both Marcus's appointment, and his use of his office, arguing that: "Marcus came to his position not to protect and expand learning opportunities in American educational institutions, but to threaten and narrow them, especially when it comes to open debate about Israel and the Palestinians. And his use of accusations of anti-Semitism in order to silence debate about Israel is being done with the sanction of the President of the United States."

During his time as Assistant Secretary of Education, Marcus led investigations involving sexual harassment in both elementary and upper-level education. “Mr. Marcus...is credited with overseeing the completion of sexual misconduct rules” and he “helped craft new rules for how schools must respond to allegations of sexual harassment and assault.” One of Marcus’s main goals was to “end the false dichotomy of protecting survivors while ignoring due process, or protecting the accused, while disregarding sexual misconduct,” and address imbalances in the handling of sexual misconduct allegations in educational institutions.

Marcus believed that under the Obama administration, sexual misconduct allegations were over-enforced, and that those who were accused of sexual misconduct were often deprived of their right to presumption of innocence and due process. Marcus advocated for Title IX enforcement reforms that introduced enhanced procedural safeguards, including the right to a trial including cross-examination and witness testimony for individuals accused of sexual misconduct. These changes replaced the "preponderance of evidence" standard with a "clear and convincing evidence" threshold. Critics have pointed out that the bar of “clear and convincing evidence” is higher than what is used in employment law.

Additionally, Marcus introduced new Title IX policy regulations, including expanding the definition of discriminatory sexual harassment to include “sexual assault, dating violence, domestic violence, and stalking.” Marcus’s policy also required schools to establish accessible reporting options for anyone to report incidents of sexual abuse, aiming to enhance support for victims. Marcus stated that his regulatory adjustments aim to restore fairness and due process within educational settings while also respecting the rights and experiences of sexual assault survivors.

Marcus has encountered criticism from advocacy groups such as Know Your IX and educational policy nonprofits such as the American Council on Education, who both stated that revoking Obama-era policies towards sexual harassment accusations during the COVID-19 pandemic was inappropriate, and possibly “retraumatizing” to sexual assault victims subjected to cross-examination. Proponents of Marcus’s policies have defended these measures, calling the cross examination a “necessary evil” to ensure fairness for all parties involved in Title IX proceedings.

In 2020, the Education Department announced that the Pennsylvania State University had to strengthen sexual misconduct investigation, despite having already faced backlash surrounding their procedures after the Jerry Sandusky controversy. Marcus described Penn State’s handling of sexual harassment cases as “disappointing that so many serious problems have remained at that university system.”

Also during his tenure, the Department of Education announced an agreement with the University of Southern California to solve “systemic failures” in wake of the sexual abuse allegations made against George Tyndall, the school’s gynecologist. Marcus sent a 51-page letter to the university to report the findings surrounding sexual misconduct involving students and staff.

In one of his biggest cases, Marcus required the Chicago Public Schools to substantially revamp their process for handling sexual violence and harassment cases. This was based on what Marcus called “the most comprehensive investigation” the department’s office for civil rights “has ever undertaken of sexual violence in a major urban public school system.”

Under Marcus, the Education Department established a new Center for Outreach, Prevention, Education, and Nondiscrimination (OPEN) within OCR. The purpose of the new initiative was to help schools, educators, and students understand and apply education civil rights laws. Critics of the OPEN Center argued that colleges and schools might be leery about cooperating with the Department. One potential barrier to the effectiveness of the Center is that educational institutions may be wary to allow OCR “under the hood” when not required to do so.

After changing Title IX regulations and self-reportedly returning OCR to a “neutral, impartial civil rights law enforcement agency,” Marcus resigned in July 2020 and returned to the Brandeis Center as chairman of the board.

Publications

Books

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

Articles

• "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.

Testimonies

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.

In June 2024, Marcus testified before the House Ways and Means Committee on the topic of “antisemitism, radical faculty, and the failure of university leadership” on college campuses in the wake of the Israel-Hamas war. He emphasized the need for university leadership to take accountability for “student violent extremism” and “professorial politicization” contributing to Jewish hate on campus.

Notes and references

Sources

• Truesdell, Stefany (2016). The Nature of the BDS Movement on US College Campuses: A Brief Analysis in Three Case Studies (Thesis thesis). Brandeis University.
• Green, Erica L. (September 12, 2018). "Education Dept. Reopens Rutgers Case Charging Discrimination Against Jewish Students". The New York Times. Retrieved August 26, 2020.