Top civil rights enforcer illegally prioritized Israel lobby complaint

A man speaks into a microphone — Kenneth Marcus has made a career of attempting to criminalize Palestinian rights activism on US campuses. (YouTube)

Nine civil rights organizations are calling on the inspector general’s office at the US Department of Education to investigate its own top civil rights enforcer over violations of federal law.

The groups say that Kenneth Marcus, an Israel lobbyist who was appointed the head of the Office for Civil Rights at the Department of Education in 2018, gave the Zionist Organization of America special treatment in reopening their complaint against Rutgers University.

That complaint alleged that organizers of a campus event which brought students together to share stories of survivors of the Nazi Holocaust and the Palestinian Nakba levied a fee only against Jewish attendees, a claim that investigators could not prove after a years-long investigation.

The DOE had dismissed the Zionist Organization of America’s complaint in 2014, finding the allegations baseless. The ZOA appealed the decision.

Shortly after he was confirmed to his position in the Trump administration, Marcus told the ZOA directly that his office would reopen the case.

He prioritized it over more than 400 other open appeals, including nearly 80 that had been pending investigation for longer than 10 years, the civil rights groups state in their complaint to the inspector general.

At the same time, along with his personal intervention in favor of the Israel lobby group, Marcus announced that the US government would adopt the so-called IHRA definition of anti-Semitism in order to apply standards that conflate criticism of Israel and Zionism with anti-Jewish bigotry.

Ethics 101

The announcement was made without public or congressional notification or debate, and reportedly took current and former investigators in the education department “by surprise.”

His failure to provide “any explanation or reasoned justification for changing the department’s long-standing policy against adopting definitions of particular forms of discrimination,” the civil rights groups’ complaint states, “all point towards malfeasance and partiality, or at least an appearance of partiality” and violates the federal legal standards of ethical conduct for employees of the US executive branch.

Moreover, rights group Palestine Legal says that Marcus’ unilateral attempts to change federal policy “may have laid the groundwork” for Donald Trump’s executive order, signed last December, which allows mere accusations of anti-Semitism against campus critics of Israel to result in lengthy inquisitions by the government.

Marcus’ appointment as the head of the Office for Civil Rights and his reopening of the Rutgers case has “inspired an uptick in threats and actual filings of civil rights complaints” by Israel lobby groups against scholars and student Palestine solidarity activists, Palestine Legal notes.

Zoha Khalili, staff attorney with Palestine Legal, told The Electronic Intifada that it took years for them to obtain the records they needed to confirm Marcus’ dealings.

However, timing is now of the essence.

“There has been this big crackdown amongst the Trump administration on accountability in the form of these inspector general investigations,” she said.

The civil rights groups hope that the acting inspector general at the DOE “will be able to investigate before they eliminate all mechanisms of accountability in all departments,” Khalili added.

Before his appointment at the Office for Civil Rights, Marcus pioneered the strategy of filing complaints to that very office under Title VI of the 1964 Civil Rights Act, claiming that universities fail to protect Jewish students by not cracking down on Palestine solidarity activism.

Similar complaints Marcus helped file against the University of California were tossed out, dealing a significant blow to his strategy.

Dima Khalidi, director of Palestine Legal, had previously warned that with Marcus now leading the Office for Civil Rights, he would “do from the inside of the Department of Education what he has failed to do from the outside.”

Pet project

The complaint to the inspector general’s office – filed by Palestine Legal, the American-Arab Anti-Discrimination Committee, Asian Americans Advancing Justice-Asian Law Caucus, the Center for Constitutional Rights, the Civil Liberties Defense Center, the Council on American-Islamic Relations (CAIR), Defending Rights & Dissent, the Partnership for Civil Justice Fund and Project South – is just the latest in a series of warnings by civil rights and human rights groups over Marcus’ career of attempts to shut down Palestinian rights advocacy.

“We’ve seen Marcus’ agenda showing up in what the Trump administration has been doing more publicly,” Khalili said.

Marcus’ boss, US Secretary of Education Betsy DeVos, has engaged in questioning academic departments about how federal funds are being used in Middle Eastern studies programs, “which is a pet project Marcus has been pushing for,” Khalili added.

In the face of micro-managed academia and threats to cut federal funding, university administrators could find it easier to capitulate than to fight back, she cautioned.

Institutions must be reminded that if the government tries to pull funds because they won’t censor activism on campus or professors who teach about Palestine, “that is a violation of civil rights. … There is a cost to resolving with the government,” Khalili said.

She emphasized that students should know that even though the institutions are more than willing to pass the burden onto them, “it’s not the students who are directly facing the attack, it’s the institution.”

Chilling effect

Over the last two years, since Marcus re-opened the complaint at Rutgers University, students there have experienced a chilling effect.

Neither the federal government nor the Rutgers administration has shared any information about the status of the investigation, Palestine Legal says.

But it has “cast a shadow over our organizing,” says Rutgers Students for Justice in Palestine.

“We were already facing Zionist intimidation as well as repressive policies for protest on campus,” they say.

“The investigation has added to that, especially for younger students who hadn’t been part of SJP before all this. People are afraid to rock the boat. Everyone has been very cautious about how we do things.”

The students say that the shadowy investigation has led to other groups on campus to fear openly engaging with Palestine solidarity and human rights, which Palestine Legal says is the point of Marcus’ crusade.

“This unconstitutional chilling effect on student speech is exactly what Marcus had previously boasted [and] is the intended effect of such complaints, even when they fail,” Palestine Legal says.