[Marxism] M,This U.S. Official Is Leading the Charge Against Anti-Semitism on College Campuses. Here’s What You Should Know About Him.

Louis Proyect lnp3 at panix.com
Wed Feb 5 06:10:36 MST 2020

Chronicle of Higher Education, FEBRUARY 03, 2020  PREMIUM
This U.S. Official Is Leading the Charge Against Anti-Semitism on 
College Campuses. Here’s What You Should Know About Him.
By Danielle McLean

When President Trump signed an executive order aimed at stopping 
anti-Semitism, in December, colleges were suddenly faced with a new 
burden: Police anti-Jewish rhetoric on campus, or risk being 
investigated for a civil-rights violation.

But what qualifies as anti-Semitism, and when does a college have a duty 
to intervene?

The writings of one U.S. Education Department official may hold the key 
to an answer.

For more than a decade, Kenneth L. Marcus, the assistant secretary for 
civil rights, has led a crusade to clamp down on anti-Semitism in 
academe, in a fashion that aligns with the directives in the executive 

Through two books, numerous op-eds, academic studies and talks, Marcus, 
a lawyer, has argued that the past 20 years have seen a rise in 
anti-Israel, pro-Palestinian protests on American campuses and in the 
harassment of Jewish students. He has also asserted that many Middle 
East-studies programs are biased and dismissive of counter views that 
support the Jewish right to a homeland in the state of Israel, or Zionism.

Since his 2018 appointment to the same post he held during the George W. 
Bush administration, the Education Department office that enforces 
civil-rights laws has placed a new focus on the matter.

The office has reopened an investigation into a 2011 civil-rights case 
at Rutgers University using the definition of anti-Semitism that appears 
in the executive order. In August, the department also ordered revisions 
in the joint Middle East-studies program at the University of North 
Carolina at Chapel Hill and Duke University after the program was deemed 
biased, in part because it did not offer enough positive imagery of 
Judaism and Christianity.

Marcus, through the Department of Education press office, declined to 
answer questions about enforcement of the executive order, instead 
issuing a written statement:

“The executive order makes clear that Jewish students are covered by 
Title VI of the Civil Rights Act. Title VI provides protection to 
individuals, including Jewish students, who face discrimination on the 
basis of race, color, or national origin. Under Secretary DeVos, it is 
the policy of OCR to pursue vigorously all forms of discrimination 
prohibited by Title VI,” he said.

But Marcus’s influence over the executive order and recent enforcement 
actions are clear, according to Samuel Bagenstos, a professor at the 
University of Michigan at Ann Arbor’s law school.

“I think it’s fair to say that Ken Marcus is certainly supportive of and 
behind a lot of this, and very likely very supportive and behind all of 
it,” said Bagenstos, who was second in command at the U.S. Department of 
Justice’s civil-rights division in the Obama administration.

Among the biggest hints of Marcus’s influence is that the executive 
order mirrors his writings. They offer a glimpse of what colleges can 
expect in the coming months.

What, exactly, is in the executive order?

The executive order, signed by President Trump in December, essentially 
requires investigators at the Department of Education’s Office for Civil 
Rights to regard anti-Semitic bias at colleges to be in violation of 
Title VI of the Civil Rights Act, which bans discrimination on the basis 
of a person’s race, color, or national origin.

When investigating whether a violation occurred, the order also mandates 
U.S. Office for Civil Rights investigators to collect evidence of 
discriminatory intent by using a definition that characterizes 
anti-Semitism as “a certain perception of Jews, which may be expressed 
as hatred toward Jews. Rhetorical and physical manifestations of 
anti-Semitism are directed toward Jewish or non-Jewish individuals 
and/or their property, toward Jewish community institutions and 
religious facilities.”

The order specifically directs federal investigators not to infringe 
anyone’s First Amendment rights. But the definition, previously adopted 
by the State Department for data-collection purposes, also provides 
examples of anti-Semitism that include the anti-Israel speech common 
among progressive activists, who often protest on college campuses.

Any speech that challenges Israel’s existence, according to the 
definition cited in the executive order, is also considered 
anti-Semitic. As is creating a double standard for Israel — holding it 
to a standard that is not demanded of other democratic nations.

What do we know about Kenneth Marcus’s views on anti-Semitsm?

Marcus and many Jewish groups — among them, the American Jewish 
Committee and the Anti-Defamation League — believe that modern day 
anti-Semitism, or anti-Jewish sentiment, is often veiled as anti-Zionist 
protest challenging Israel’s right to exist. They say the executive 
order is needed to stem the rise of such activism, which they say 
demonizes Jews.

In 2011, Marcus founded an organization called the Louis D. Brandeis 
Center for Human Rights Under Law, which filed Title VI anti-Semitism 
complaints and has also supported the executive order.

In 2016 he supported a bill called the Anti-Semitism Awareness Act that 
would have allowed Office for Civil Rights investigators to use the 
definition when assessing whether an alleged Title VI violation was 
motivated by anti-Semitic intent. The bill failed to pass through Congress.

In his 2015 book The Definition of Anti-Semitism, Marcus stressed that 
not all criticism of Israel is anti-Semitic. Speech would become 
anti-Semitism, he writes, if someone were to characterize Israel using 
symbols or images associated with “classic anti-Semitism,” compare 
contemporary Israeli policy to that of the Nazis, or blame Israel for 
all religious or political tensions.

But he wrote extensively about how the Boycott, Divest and Sanctions 
movement could be considered anti-Semitic.

Commonly known as BDS, the boycott was created in 2005 in opposition to 
Israel’s treatment of Palestinians. The BDS movement that has taken 
place on American college campuses has called for an end to Israel’s 
occupation of Palestinian land and discrimination against Palestinian 
people, along with the right for Palestian refugees to return to their 
homes. Many Jewish people believe these demands attack their deeply held 
belief that Jews have the right to their own state and that Israel has 
the right to protect itself.

Marcus wrote in his 2015 book that boycotts against Jewish people have 
roots to Nazi Germany and a 1945 movement by the 22-nation Council of 
the Arab League. The movement, he said, is anti-Semitic because its 
primary strategy is to “reject Israel’s ‘normalization’”— echoing 
anti-Jewish boycotts of the past.

While not all proponents of BDS are anti-Semitic and may be ignorant of 
the movement’s anti-Semitic roots, Marcus wrote: “This only makes them 
unwitting agents in a process by which hatred articulates itself across 
time. Moreover, they are allying themselves with others who consciously 
seek to undermine Israel for reasons of sheer hatred.”

Jewish students have said that pro-Palestinian protesters have harassed 
them for showing their support for Israel, or that they’ve been shut 
down by professors when they try to debate their views during what they 
described as biased Middle East-studies classes or speaking events on 
campus. They say this harrassment has caused Jewish students to feel 
uncomfortable on campus and affected their ability to learn.

Marcus underscored specific examples from complaints in 2004 at the 
University of California at Irvine, in which Jewish students were 
allegedly threatened with beatings for wearing T-shirts expressing their 
love for Israel, called derogatory names, and told they would “burn in 
hell,” and that they should “go back to Russia.” He added that lecturers 
described Zionism as a “disease” and said that Jews control the 
government, among other examples.

However, the Office for Civil Rights, he said, had found that the events 
at UC Irvine were not actually in violation of Title VI because “OCR was 
swayed by its finding that ‘their criticism of Jews was focused on their 
perceived support of Israel.’ This amounts to holding ‘Jews collectively 
responsible for the actions of the state of Israel,’ which the working 
definition provides as an example of anti-Semitism,” he explained in his 

The case underscored the need for the Office for Civil Rights to define 
anti-Semitism differently, he wrote.

While there is no list of words or phrases that are anti-Semitic, 
investigators must weigh each word, phrase, or deed with its speaker’s 
intent, tacit meaning, and its cultural significance, according to Marcus.

How has Marcus influenced the Education Department’s civil-rights 
enforcement so far?

In September 2018, the Office for Civil Rights reopened the 2011 case at 
Rutgers that the Obama administration had closed in 2014. In that case, 
Jewish students said they were charged last-minute fees to an advertised 
free and open campus event called Never Again for Anyone, which linked 
atrocities committed by the Nazis against Jews to Israel’s policies 
toward Palestinians. The students said the last-minute fee was part of 
an effort to block pro-Israel protesters from attending. The university, 
however, determined that event organizers were simply trying to manage 
the larger-than-expected attendance.

If civil-rights investigators find Rutgers guilty of anti-Semitism and 
the college fails to take remedial action, it could lose federal funding.

Then, in August 2019, the department threatened to withhold federal 
funds from the University of North Carolina at Chapel Hill over its 
joint Middle East studies program with Duke University unless it revised 
its schedule of activities.

Among its criticisms, the department said the program lacked balance by 
placing a “considerable emphasis” on “understanding the positive aspects 
of Islam,” while not placing a similiar focus on the positive aspects of 
Christianity, Judaism, or other belief systems in the Middle East, 
according to a letter to UNC published in the Federal Register.

What does the executive order mean for civil-rights enforcement?

There is some debate over how the executive order will affect college 
campuses. After all, the order includes a line that solidifies that the 
free speech rights of students are protected.

Among those that doubt the order will have much impact is David 
Bernstein, a professor and executive director of George Mason’s Liberty 
& Law Center, who says he has spoken to Marcus about the subject. 
Bernstein says he believes the order was a political move, since the 
Office for Civil Rights had already been enforcing anti-Semitism under 
Title VI.

Under the law, Bernstein said, a professor would not get in trouble for 
comparing Israel to Nazi Germany. However, a professor could get in 
trouble for discrimination if they singled out a Jewish student in class 
and berated and harrassed the student about why they would visit Israel, 
a country that the faculty member compared to Nazi Germany, he said.

But Bernstein said the executive order could quiet supporters of the BDS 
movement. “I actually understand why, if you are a BDS supporter, you 
think that it has a chilling effect on you for the government to 
officially suggest that your movement is anti-Semitic,” he said.

Others say the impact of the executive order will be substantial.

Some organizations, like the American Civil Liberties Union and the 
Foundation for Individual Rights in Education, criticized the executive 
order, saying it was too broad and could stifle protected free speech on 

Kenneth S. Stern, the scholar who originally wrote the executive order’s 
definition of anti-Semitism, is in that camp. He said it will discourage 
criticism of Israel on campuses and create an environment that violates 
the First Amendment rights of students.

Stern, who now runs Bard College’s Center for the Study of Hate, said 
that because the definition of anti-Semitism “looks at things that are 
inherently contentious and political and applies to campuses, it’s 
disingenuous to say that it will have no impact on speech.”

Meera Shah, who represents Palestinian-rights protesters as a senior 
staff lawyer at the advocacy group Palestine Legal, says the executive 
order “makes crystal clear that it will be used to justify censorship 
and attempt to silence advocacy of Palestinian rights in violation of 
the Constitutional protections guarenteeing free speeh,” Shah said.

The order, Shah stressed, is already having an impact on student 
activists who now fear speaking out in this climate. Her organization 
has responded to many incidents of suppression, she said, in which 
students had to defend themselves in disciplinary proceedings because 
Israel activists charged them with anti-Semitism for their 
pro-Palestinian speech.

“Students and faculty activists supporting Palestinian rights don’t just 
feel that their speech is being chilled. It’s actually happening,” she said.

Danielle McLean writes about federal education policy, among other 
subjects. Follow her on Twitter @DanielleBMcLean, or email her at 
dmclean at chronicle.com.

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