No sooner had President Trump nominated Kenneth Marcus, president of the Louis D. Brandeis Center for Human Rights Under the Law, to be Assistant Secretary for Civil Rights at the U.S. Department of Education, than extremist anti-Israel groups began to mount an aggressive campaign to derail the appointment.
This is a remarkable affront to a civil rights lawyer who has spent his career fighting for the rights of women, the disabled, and members of many minority groups: African Americans, Hispanics, and Asians, as well as Sikhs, Arabs, and Muslim Americans. Marcus’s prior tenure at the federal Office for Civil Rights was widely lauded for effective leadership and support for the rights of all students. Indeed, The Atlantic magazine recently acknowledged that when Marcus previously held the office for which he has now been nominated, “the [George W. Bush] administration started taking a stronger approach to enforcing civil-rights laws.” For this reason, most civil rights groups have thus far refrained from subjecting Marcus to the vituperation that other recent Trump nominees have faced.
Some extremist anti-Israel groups, however, have broken ranks, however, attacking the administration’s Jewish civil rights nominee with reckless and malicious falsehoods. One of these groups, Palestine Legal, whose mission is to bolster the anti-Israel movement by challenging efforts to protect Jewish students from anti-Semitism, immediately issued a letter smearing Mr. Marcus as an “Anti-Palestinian Crusader” and opposing his nomination in terms of the so-called Livingstone Formulation. Under that formulation, as identified by British sociologist David Hirsch, anti-Semites accuse Jews of fabricating anti-Semitism claims in order to silence decent people who are concerned about Israel’s supposed human rights violations. In this way, Palestine Legal’s director, Dima Khalidi, levels the spurious charge that “Marcus is the architect of a strategy to abuse civil rights law to suppress campus criticism of Israel.” In other words, she contends that Marcus’ campaign to ameliorate campus anti-Semitism is not based on a virtuous desire to end bigotry but is a disingenuous attempt at “shielding Israel from scrutiny,” consistent with the “Livingstone Formulation.” Part of that notion is “the counteraccusation that the raisers of the issue of antisemitism do so with dishonest intent, in order to de-legitimize criticism of Israel. The allegation is that the accuser chooses to ‘play the antisemitism card’ rather than to relate seriously to, or to refute, the criticisms of Israel.”
Of course, those who refuse to acknowledge that their speech or behavior may, in fact, be anti-Semitic normally resist such designations, but the allegation of Palestine Legal against Mr. Marcus is particularly odious because it seeks to impugn his integrity as someone fighting anti-Semitism, suggesting instead that his true motive, carefully hidden from view and masked as benign activism, is actually to serve the interests of Israel by trying to delegitimize and libel its campus critics. Moreover, Palestine Legal claims, in order to shield Israel from scrutiny, to insulate its policies and state behavior from critique, Mr. Marcus pretends to be interested in anti-Semitism but is actually creating a smokescreen to shield Israel “at the expense of civil and constitutional rights.”
In addition to the Livingstone Formulation, these groups are also going after Marcus with the classic charge that Jews are attempting to use gain control of government power for nefarious purposes. “Marcus has no business enforcing civil rights laws when he has explicitly used such laws to chill the speech activities and violate the civil rights of Arab, Muslim, Jewish, and other students who advocate for Palestinian rights,” Khalidi charged. It is not coincidental, of course, that a group dedicated to undermining efforts to fight anti-Semitism would have been aware of the efforts of Mr. Marcus and his colleagues as they attempted to identify the causes and corrosive impact of campus anti-Semitic speech and behavior.
As much as progressives have decided that anti-Semitism and racism now emanate primarily from the alt-right, from Trump-supporting white supremacists, for at least the last decade the primary source of anti-Zionist, anti-Israel, and anti-Semitic activism on campuses has been anti-Israel individuals and groups, including the Muslim Student Association and the radical Students for Justice in Palestine, among others. So, even as Ms. Khalidi would have one believe that Mr. Marcus launched a campaign to silence pro-Palestinian activists merely as a tactical ploy to insulate Israel from critique and condemnation, the anti-Israel activism which she so ardently defends, including the Boycott, Divestment, and Sanctions (BDS) campaign, has regularly spawned instances in which agitation against Israel has included speech and behavior which has been considered, and in fact often was, anti-Semitic. Where that anti-Israel speech and behavior has seemingly crossed the line of civil discourse, and why Mr. Marcus and others have examined these groups so often, is in those frequent, and ever increasing, instances when what is described by activists as simply criticism of Israel has devolved into raw anti-Semitism.
In fact, those who call themselves “pro-Palestinian” on campuses today are not committed to helping the Palestinians productively nation-build, or creating a civil society with transparent government, a free press, human rights, and a representative government. The so-called “pro-Palestinian” advocacy on campuses involves very little which actually benefits or makes more likely the birth of a new Palestinian state, living side by side in peace with Israel. What being calling oneself “pro-Palestinian” unfortunately has come to mean is mounting campaigns which continually denigrate and attack Israel with a false historical narrative and the misused language of human rights.
The moral uprightness that anti-Israel activists feel in denouncing what they perceive to be Israel’s racist, apartheid character, combined with its purported role as the illegal occupier of stolen Muslim land, has manifested itself in paroxysms of ideological assaults against Zionism, Israel, and, by extension, Jews in general. And of great concern to those who have observed the invidious byproduct of this radicalism is the frequent appearance of anti-Israel sentiment that often rises to the level of anti-Semitism, when virulent criticism of Israel bleeds into a darker, more sinister level of hatred—enough to make Jewish students, whether or not they support or care about Israel at all, uncomfortable, unsafe, or hated on their own campuses. In fact, a recent study commissioned by UC President Mark G. Yudof to measure the climate faced by Jewish students found that anti-Israel activism and on-campus attacks on Israel and Zionism regularly “engender a feeling of isolation, and undermine Jewish students’ sense of belonging and engagement with outside communities.”
That is precisely the type of “hostile environment,” created by generating hostility toward Jewish students over their perceived or actual support of Israel, that may violate Title VI of the Civil Rights Act of 1964, one of the legal tools Mr. Marcus has used and may well continue to use in his new role to help ensure that universities take steps to ameliorate situations in which such prejudice-laced campus climates are allowed to develop.
Jewish Voice for Peace (JVP), another anti-Israel group that also, not insignificantly, supports the BDS movement, regularly works hand-in-glove with Palestine Legal and other BDS groups. JVP published an open letter denouncing the choice of Mr. Marcus for the OCR appointment, as well, repeating the spurious charge that the use of Title VI statutes, and such guidelines as the U.S. State Department Working Definition of Anti-Semitism, would have the perverse side effect of suppressing the free speech of “pro-Palestinian” activists. Mr. Marcus’ policies “will have catastrophic effects on free speech and civil rights on campuses,” ominously warned the JVP letter, assuming, incorrectly, that any OCR policies designed to identify and eliminate anti-Semitism will prevent people from expressing whatever views they harbor—bigoted or not. In fact, no recommendations for ways of confronting anti-Semitism on campus prevent or punish such expression; it merely helps administrators and others know when, and if, anti-Semitism occurs.
In fact, no one fighting against campus anti-Semitism is interested in suppressing the corrosive and unhelpful speech of these ideological activists, who preen self-righteously about their unabridged right to champion Palestinian solidarity, the sole nationalistic striving which has seemed to capture their attention simply because it exists in opposition to Jewish self-affirmation. They have been very free and successful in exploiting the protection of academic free speech to advance their toxic views on campuses, yet simultaneously decry that same freedom when used by those with opposing—very often stronger and more truthful—views.
And despite Palestine Legal’s fear that the conflation of “criticism of Israel with anti-Semitism . . . has really serious consequences for those who advocate for Palestinian human rights and are being condemned and censored and punished as a result of the enormous pressure being placed on universities by the likes of Marcus and dozens of other Israel advocacy groups,” the truth is that not human rights advocates behave in civil ways, and the fact that “pro-Palestinian” activists support a minority group does not justify their misbehavior and extremism, even for what they clearly believe to be a noble cause.
And while administrators and faculty have never had any difficulty in identifying so-called hate speech on campus when it is aimed at African Americans, Hispanics, GLBTs, Muslims, or other victim groups, when the discussion is about Israel and the Palestinians, and the target of the virulent speech and demonstrations is Zionism, the Jewish state, or Jews in general, both administrators and campus radicals conveniently inoculate themselves from responsibility for what they would otherwise deem hate speech by invoking the protection of academic free speech.
But pro-Palestinian advocacy on campus—the very activism Palestine Legal is so intent on preserving—has been shown to correlate directly to an uptick in anti-Semitic speech and behavior. For example, in two studies it conducted of anti-Semitism on U.S. campuses, the AMCHA Initiative, an organization that investigates and documents anti-Semitism at U.S. universities, found that “Schools with instances of student-produced anti-Zionist expression, including BDS promotion, are 7 times more likely to have incidents that targeted Jewish students for harm than schools with no evidence of students’ anti-Zionist expression and the more such anti-Zionist expression, the higher the likelihood of incidents involving anti-Jewish hostility.” This “anti-Zionist expression” and “BDS promotion are,” of course, the central aspects of Palestinian activism.
Pro-Palestinian activists have successfully hijacked the narrative about the Israeli/Palestinian conflict on campuses, but in elevating the Palestinian cause by degrading Israel they have unleashed an ideological tsunami replete with virulent language, slanders, blood libels, inversions of history and fact, and, often, as former Harvard president Laurence Summers put it, have unleashed forms of expression that are “anti-Semitic in their effect, if not their intent.” That is the issue here, and why it is necessary and important that, in the effort to promote the Palestinian cause and help them to achieve statehood, another group—Jewish students on American campuses—do not become victims themselves in a struggle for another group’s self-determination.
An Office of Civil Rights under Mr. Marcus, with a mandate to protect those students and the resources to help guide administrators in eliminating prejudice and hatred from their campuses, will be instrumental in ensuring those objectives are met.