Legislators approved Marcus with a party-line vote of 50 to 46, concluding a nearly eight-month confirmation process marked by Democratic opposition. He will assume his post under Secretary of Education Betsy DeVos, replacing acting OCR chief Candice Jackson, who has also faced strong criticism from Democratic lawmakers.
Marcus previously assumed the same role under President George W. Bush in 2003, before serving as staff director of the US Commission on Civil Rights between 2004 and 2008. Under his guidance, the OCR extended protections afforded under Title VI of the Civil Rights Act of 1964 to members of groups that “exhibit both ethnic and religious characteristics, such as Arab Muslims, Jewish Americans and Sikhs.”
He continued his advocacy after leaving government and founding the Louis D. Brandeis Center for Human Rights Under Law, a Jewish civil rights group, in 2012.
“This is a momentous occasion not just in the fight against antisemitism, but against all forms of prejudice and hate,” said Alyza Lewin, LDB’s chief operating officer, following Marcus’ confirmation. “I cannot imagine anyone better qualified than Kenneth for this position.”
His advancement was similarly praised as “a new chapter” by Rabbi Abraham Cooper of the Simon Wiesenthal Center, who expressed confidence that the US Department of Education “will start being responsive to antisemitic incidents that impact Jewish students on our nation’s campuses.”
“There are many talented lawyers, but Ken Marcus also brings a high level of ethics to his task,” Cooper told The Algemeiner. “We wish him well.”
Eric Fusfield, director of legislative affairs at B’nai B’rith International, likewise commended Marcus for being a strong “voice in the fight against antisemitism and other forms of bigotry and hatred on university campuses.”
While calling the partisan vote “unfortunate,” Fusfield indicated that he expects Marcus “will do a lot of positive things.”
“If there are points of disagreement between him and the Jewish community, we’ll make our voice heard, but I think we’re in a good place to start with, in large part because there is no greater expert on the issue of antisemitism,” he added. “We’ve had so much difficulty explaining to university educators and others exactly what antisemitism is, and we don’t need to explain that to Ken Marcus, because he’s written a book on the subject.”
Marcus — who authored Jewish Identity and Civil Rights in America in 2010 and The Definition of Anti-Semitism in 2015 — has frequently spoken out against what he described as rising antisemitism on American college campuses, which he blamed in part on the boycott, divestment and sanctions (BDS) campaign against Israel. Some tactics used by BDS supporters — including harassment, vandalism, and even assault — represent “a violation of the civil rights of Jewish students,” he argued in September 2013.
Yet Marcus warned last year that the OCR “has been paralyzed” when it comes to addressing antisemitism.
“The reason for OCR’s powerlessness is that it is ill-equipped to recognize antisemitism when it sees it,” he argued, before endorsing the Anti-Semitism Awareness Act (AAA), a bill that calls on the Department of Education to adopt the definition of antisemitism put forth by the State Department in 2010.
These positions have helped bolster opposition to Marcus from pro-BDS groups including Jewish Voice for Peace and Palestine Legal, which claim that he seeks “to censor and chill speech supporting Palestinian rights on college campuses.”
The American Civil Liberties Union rejected Marcus on similar grounds, warning that the AAA relies on a definition of antisemitism that includes demonizing, delegitimizing, and applying double standards to Israel.
“The bill could be interpreted to prohibit vigorous campus speech, protest, and other forms of advocacy critical of Israel, which would plainly violate the First Amendment,” the ACLU argued.
Marcus has also drawn criticism from the Leadership Conference on Civil and Human Rights (LCCHR), a coalition of over 200 national groups that said in a February letter to senators that Marcus had failed “to articulate clear support for robust civil rights enforcement during his confirmation hearing,” and questioned his commitment to protecting undocumented, LGBTQ, and disabled students, as well as students of color.
LCCHR — which counts several Jewish organizations among its ranks — further warned that Marcus “has sought to use the OCR complaint process to chill a particular political point of view, rather than address unlawful discrimination” — referencing complaints LDB filed against alleged antisemitic harassment at three University of California campuses, which were later dismissed.
Yet the American Jewish Committee — a founding member of the LCCHR — took exception to this characterization, noting that Marcus only argued that “some extreme criticism of Israel constitutes antisemitism,” and has “repeatedly made clear that he did not believe that … mere criticism of Israel was actionable under Title IV.”