Kenneth L. Marcus was confirmed last summer by the U.S. Senate as assistant secretary for civil rights at the U.S. Department of Education following a contentious nomination battle by Democrats and left-wing and anti-Israel groups. In the job for a year now, his duties include enforcing civil rights laws prohibiting educational institutions from discriminating based on race, color, disability, ethnicity, national origin and age.
From 2004 to 2008, he was staff director of the U.S. Commission on Civil Rights and was delegated the authority of his current role.
From 2011 to 2018, Marcus, 52, served as president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, whose mission is to fight for civil and human rights for Jews and others.
He also taught at the City University of New York’s Baruch College School of Public Affairs.
Marcus and his wife, Stephanie, have one daughter.
JNS talked with Marcus in person. The interview has been edited for brevity and clarity.
Q: Describe the biggest issue or issues you have faced as it pertains to anti-Semitic and anti-Israel sentiment on college campuses.
A: We face a lot of issues. The anti-Semitism issue is a bit smaller. We get 10,000 to 15,000 cases per year, but we only get a handful of anti-Semitism complaints—certainly far less than 1 percent of our complaint load. So I would say that the No. 1 issue is the cases we don’t get. The fact that we are aware anecdotally and through survey data that there are many Jewish students to feel they are experiencing anti-Semitism, and yet very few of them are submitting complaints to the Office for Civil Rights (OCR). One of the issues for us is awareness, and that is part of why I’m so pleased to be speaking with you now.
We do have some alleging systemic hostile environments for Jewish students, some of which relate in some fashion to Israel. We do get some complaints alleging discrimination in admissions by Jewish students who believe that they were rejected by highly selective institutions that are admitting similarly situated non-Jewish students
Legal complaints raise lots of different issues, technical as well as substantive, so that they’re not all turning on these sorts of policy issues that one reads about. I would say that the challenge is to identify the cases in an environment where we’re not getting so many complainants, and then to make sure that when we get the cases that they’re properly founded in fact and law.
Q: Why do we see fewer cases? Is there a discrepancy between the anecdotal evidence and number of cases?
A: For several years, I was fighting anti-Semitism from the Louis D. Brandeis Center, where our mandate was, in large part, to address campus anti-Semitism through law and public policy. We found that there were some students who were willing to step forward, but there were lots of reasons why students may not be willing to do so.
First, even advocates aren’t always in touch with the students who face the problems. And you can’t deal with what you don’t see.
Second, some students are reluctant to step forward for fear of retaliation or concern about social stigma, or because they worry about the time and distraction from their studies or for some other reasons. We’ve also seen students and families who were concerned that it might seem disloyal to their college to file an external complaint of any sort.
So there are lots of reasons people might not come forward. That’s also true, of course, of non-Jewish complainants in another area of the law. But when you look at the data on student perception of anti-Semitism and the anecdotal, and you see the divide between those experiences and the small number of complaints, you have to think that there are a large number of students who feel that they have an issue that needs to be resolved but who have not come forward. There’s a significant role for Jewish communal organizations to identify these students, and to counsel them and to help figure out what process is appropriate.
Of course, there’s times when it’s best not to go directly to the federal government and instead to work things out on one’s own campus. Sometimes, it’s not a bad thing if students are working things out amicably. But we can’t solve problems that are not brought to us.
Q: How can we solve the issue of cases not being brought to the Department of Education?
A: No. 1 is public awareness of what we do and the opportunities that students are aware of.
No. 2 is for Jewish and other communal organizations to play a role in supporting the students in counseling them.
No. 3 is for attorneys, whether within Jewish communal organizations or otherwise, to get involved in these cases. Sometimes, they are not likely to be high-paying cases, and so there’s a question of pro bono resources. There are, of course, groups that are involved in this in this are like my former organization. But I think there is room for a lot of work to be done to identify these students, to counsel them, to provide them with legal representation and to figure how best to step forward.
Q: Is the way Middle Eastern Studies has been taught for the last several decades in our universities and within some of our kindergarten through 12th grade classrooms have had an impact on the growing issue of anti-Zionism and anti-Semitism in this country?
A: The Louis D. Brandeis Center published a position paper that suggested that was an issue. The concern to the Louis D. Brandeis Center was that one-sided, monolithic, politicized Middle East Studies centers would exacerbate the climate on public university campuses.
There was also a related concern that these programs often had teacher outreach programs that would indirectly have a negative impact on public elementary and secondary schools, especially I would say secondary schools.
This is not an area that I deal with substantially at OCR because it falls primarily it falls within the Office of Postsecondary Education. The particular area is Title VI of the Higher Education Act as distinguished from Title VI of the Civil Rights Act of 1964.
Q: Is the Department of Education doing enough to combat anti-Semitic and anti-Israel incidents on college campuses? What more can be done, if any?
A: I believe I’m the first person ever appointed to my position who comes to it with expertise in the anti-Semitism and a background in fighting anti-Semitism.
There is now a greater awareness within this department and within this administration of the severity of the problem. I believe that there is within the entire administration a sensitivity to campus anti-Semitism and an awareness that it’s growing. This is a time when federal government officials are finally aware that this problem needs to be tackled.
Q: Legislation that has been repeatedly introduced is the Anti-Semitism Awareness Act, recently reintroduced in the Senate. Is the U.S. Education Department pushing for the passage of this measure? Can’t the department adopt the State Department’s definition of anti-Semitism in investigating such incidents without legislation like the Anti-Semitism Awareness Act?
A: I was an active supporter of that issue at the Louis D. Brandeis Center, and I spoke frequently and wrote on the topic.
The Office for Civil Rights is able to use widely established definitions on a case-by-case basis as we have done. To adopt a definition formally would require something that is probably beyond the scope of enforcement actions. It could include legislation. It could include formal rule-making. It could involve other sorts of processes. But it’s not something that we would be inclined to do as part of the everyday process.
I have used the International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism. We typically try to focus on our area, which is administering and enforcing the law and leave to Congress the role of legislating.
Q: The Never Again Education Act was introduced in the Senate. What’s your reaction?
A: I believe in the importance of Holocaust education for a lot of reasons. It is not a substitute for combating anti-Semitism through law enforcement, but it is an important means of educating students about history, about tolerance and about a host of issues that they need to know about. That bill, while interesting to me personally, does not relate to OCR if it passed.
Q: What advice do you have for parents who are hesitant or resistant to send their child to a college or university where anti-Israel, anti-Zionist sentiment has made its presence known?
A: I’m not going to speak to particular campuses, particularly campuses in which we may have an open complaint, an open investigation.
You can look at the current campus climate in the United States in one of two ways. One the one hand, we are seeing the resurgence of anti-Semitism, which should be alarming, not just to every Jewish parent, but to every American. It’s real, we see it. We need to get a handle on it.
On the other hand, there has never been a better time to be a Jewish student in higher education than the 21st century. While we have significant problems going on, we also have made progress in lots of different areas. While there are an alarming number of students who have had very serious problems, there is also a very large number of students who’ve been able to have healthy and successful university experiences in a way that may not have been true during some prior generations. So it’s important to be balanced.
On the one hand, everybody needs to open their eyes to the reality of the anti-Semitism that we’re seeing on American college campuses. That is especially problematic because of the direction that we’re going in, which is not a good one.
On the other hand, we shouldn’t be overly alarmist, and we should realize that the number of opportunities available to Jewish American students is also very great. That is certainly possible in most American colleges and universities to have a very successful collegiate experience, even on a campus that may have some ugly incidents happening.
Q: Do you mind elaborating on what improvements have been made?
A: It was only in the last century that there were restrictions on Jewish student admissions and Jewish faculty hiring in many institutions. There were residential dorms that were not open to Jewish students. There was very significant anti-Jewish violence in some places. The ugliness facing Jewish students during various parts of the 20th century shouldn’t be forgotten, and we should realize that many universities now have Jewish-studies programs. Many have Israel-studies programs. There are universities that have a significant number of Jewish faculty. Some have Jewish presidents and Jewish deans and other high-level Jewish officials. A growing number offer kosher dining.
I don’t mean to diminish in any way the vital importance to address anti-Semitism. But we should also be aware that some universities do have opportunities for Jewish students that didn’t exist on those campuses a generation ago.
Q: As we’re just about a month from the start of another academic year, are you optimistic about the campus climate for Jewish and pro-Israel students? Is OCR bracing for a better or worse year?
A: The particular climate we see each year varies from time to time based on a lot of factors, including whether there is turmoil in the Middle East. That’s sometimes difficult to predict. I don’t see a whole lot of indicators that there are going to be problems come, let’s say, September that are significantly different than what we saw at the end of the spring semester.
However, the big picture is that the trajectory is going in the wrong direction, and things have been getting worse and worse. This is not just a problem over the last two years, but really a problem over the last two decades, which has been accelerating in the last few years.
We as a nation made steady and substantial progress against campus anti-Semitism from the end of the Second World War until the beginning of this century. The last 20 years has not seen progress. The last 20 years has seen a change in direction where, instead of getting better and better, we’ve been getting worse and worse. I can’t tell yet whether the next school year will be significantly worse than the last one. But the general trend has been disturbing.
Q: Besides the responsibilities entailed in each job, how has your current role been different than your previous one?
A: The Louis D. Brandeis Center has a great deal of freedom, and is therefore able to innovate rapidly and to make decisions quickly. The federal government has considerably more power and authority. While decisions may take longer, the opportunity for impact is greater. The reason I was so honored by this appointment is that here at OCR we have the opportunity to make an impact on so many students’ lives. That has been a change and that has been a great opportunity.
Q: Is there anything else you wish to add?
A: I would just like to reinforce that we can’t address cases that aren’t before us. From time to time, we’re able to proactively take on a case, but OCR is more traditionally and has historically been based overwhelmingly on the complaints that we receive. If people are concerned about what’s happening to students in their community, they need to speak up. If there are Jewish students who are being harassed, we are ready and available to work with them. Our doors are open. They just need to reach out to OCR.