The Hill | January 10, 2018

Confirmation battles that pit one party’s nominee for federal office against senators from the opposition party long have been spectator sport in Washington. But when extremists from the nominee’s own party attack, well now, there’s a “man bites dog” story.

The most recent example is the curious case of Kenneth L. Marcus, President Trump’s nominee to be assistant secretary of education for civil rights. The Education Department’s Office for Civil Rights is charged with ensuring equal access to education through enforcement of the nation’s civil rights laws.

Marcus is well-suited to the task. He ran the same office under a grant of delegated authority in the administration President George W. Bush, while simultaneously serving as deputy assistant secretary of education for civil rights enforcement. Marcus later served as the staff director to the U.S. Commission on Civil Rights (a bipartisan federal civil rights agency), where we overlapped for several years when I was one of USCCR’s eight commissioners. Currently, Marcus is president and general counsel of the Louis D. Brandeis Center, a civil rights organization dedicated to combating anti-Semitism on college campuses.

Although his civil rights credentials are impeccable, as a former Bush appointee Marcus no doubt anticipated some opposition from the far-left. And, indeed, he has faced some criticism from those who refuse to believe that anyone who worked for Bush, was nominated by Donald Trump and is supported by Betsy DeVos could possibly be pro-civil rights. But that type of opposition is simple-minded and silly.

More troubling is the opposition of some of Marcus’s fellow conservatives. To be sure, Republicans and conservatives, for the most part, have been enthusiastic and supportive of the nomination — as evidenced by the wide range of groups that sent letters of support in advance of Marcus’s Senate committee hearing. But late last year, writing in the Washington Times, conservative columnist Bruce Fein attacked Marcus as unqualified, and Peter Van Buren claimed in the American Conservative that, if confirmed, Marcus will “drive his agenda against the rights of Americans using the full power of the federal government.”

What, exactly, is this so-called agenda? According to Van Buren, “Marcus believes any campus that allows its students to voice opposition to the Israeli occupation should lose its federal funding.” For his part, Fein claims that Marcus would squelch anti-Israel debate and calls him “clueless about freedom of speech or association protected by the First Amendment.”

Such hyperbolic nonsense is a reaction to Marcus’s efforts to expose the anti-Semitism that today runs rampant on many college campuses. In fact, there is no evidence whatsoever that Marcus has ever sought to suppress the free-speech rights or particular viewpoints of college students, and neither Fein nor Van Buren cite any such examples. Indeed, Marcus’s organization has focused almost exclusively on ensuring equal free-speech rights and access for all students, including Jewish students, so that they can invite speakers and fully participate in student activities, like every other demographic group on campus.

Marcus has never argued that speaking out against Israel is, in and of itself, sufficient to trigger federal civil rights law. To the contrary, he has expressly stated that skepticism of Israel’s “status quo” is often wrongly characterized as anti-Semitic, when it “may well reflect only the concern, shared by some in the liberal Jewish American community, that Israel’s current policy toward Palestinian Arabs is unsustainable in light of gathering international pressure.”

Nevertheless, Marcus has rightly argued that anti-Israel protests that devolve into intimidation and harassment, vandalism, and actual or threatened physical violence may, depending on the specific circumstances, constitute “hostile environment harassment.” Marcus maintains that federal law should be implicated only when the conduct is so extreme and/or pervasive that it negatively impacts the victim’s (or victims’) educational or employment circumstances.

Rather than circumscribe First Amendment protections, Marcus argues simply that federal law should protect Jews in the same manner that it protects racial groups. Seems like a no-brainer to anyone who opposes violence against Jews. But perhaps I assume too much.

The trope that Marcus wants to ban certain forms of protected speech is, in fact, demonstrably false. Throughout his career, Marcus has publicly championed strong protections for expressive rights. In 2000, he argued and won the landmark case of the “Berkeley Three,” in which a federal appeals court found that anti-discrimination laws cannot be used to suppress legitimate political speech. More recently, in 2015 Marcus penned a letter to the editor of the Washington Post, endorsing the University of Chicago’s statement on free speech, which urges the “completely free and open discussion of ideas” on campus.

Having taught, written about and litigated cases under the First Amendment for many years, Marcus understands well that the remedy for offensive speech is not censorship, but more speech. He has consistently urged university leaders not to censor anti-Semitic and anti-Israel rhetoric, but to stand up and denounce it. And he has argued that college administrators should respond to hate speech in ways that do not infringe on the First Amendment, including: issuing statements to rebut anti-Semitic and anti-Israel propaganda; punishing non-speech forms of anti-Semitism, such as assault, battery and vandalism; and ensuring effective security at particularly volatile university lectures.

Given Marcus’s strong and positive record on First Amendment issues, it seems that the only real objection to Marcus is that he is an unabashed advocate for the civil rights of American Jews. Typically, such activism is viewed as an asset, not a disqualifying characteristic. After all, past nominees for the post have come from the ranks of civil rights organizations or affinity groups focused primarily on issues related to their own race, gender or ethnic identity. But, unlike activists who focus almost exclusively on issues that impact their own communities, Marcus has spent a distinguished career fighting for the rights of all Americans, including women, racial and ethnic minorities, Sikh, Arab, and Muslim Americans, and Americans with special needs.

The truth is, there’s no surer sign of a nominee’s reasonableness and fitness for office than opposition from both the far-right and the far-left. If all of President Trump’s nominees are as reasonable and well-credentialed as Kenneth L. Marcus, America will be in great shape.

Share This