Nathan Lewin

The NY Times lynches a Jewish pro-Israel Trump appointee

In reopening a ZOA case against Rutgers U., Kenneth Marcus is simply doing his job as assistant secretary of education for civil rights
Kenneth L. Marcus official photo
Kenneth L. Marcus official photo

Kenneth Marcus founded and headed the Louis D. Brandeis Center, an organization that has been combating anti-Semitism and anti-Zionism on college campuses in the United States. (I should note that my daughter and law partner is now the president of that entity and is continuing Marcus’s work.) Marcus had been a sub-cabinet official between 2002 and 2004 in the George W. Bush administration, where he ran the Department of Education’s Office of Civil Rights. He was appointed by President Trump to the same job – Assistant Secretary of Education for Civil Rights – and was confirmed on a 50-to-46 party-line vote. Vigorous Democratic opposition claimed that he had not been liberal enough for the LGBTQ community and was too supportive of Israel .

Marcus’s adversaries have now begun their drive to destroy him by co-opting the front page of the New York Times, a media outlet very hospitable to their agenda, with a purported shocking news story. The front page of the September 12 issue of the US edition of the Times declares that, as a “longtime opponent of Palestinian rights causes,” Marcus has “reopened a seven-year-old case brought by a Zionist group against Rutgers University.” This, says the Times reporter, “signaled a significant policy shift on civil rights enforcement” and “injected federal authority in the contentious fights over Israel that have divided campuses across the country.” The reader of this “news” story is invited to believe that a Trump designee is revising the civil rights laws of the United States to satisfy a personal pro-Israel agenda.

Readers of the Gray Lady deserve a more discerning and accurate look at the facts.

Contrary to what the Times would like its readers to believe, Assistant Secretary Marcus did not reach out unilaterally to re-open a seven-year old case. The complaint against Rutgers had been filed in 2011 and, after an investigation by the Office of Civil Rights staff, it was decided in a July 31, 2014, letter signed by one Emily Frangos. Ms. Frangos was the “Compliance Team Leader” who apparently supervised the investigation conducted in New York.

The party that had filed the complaint against Rutgers — the Zionist Organization of America – was entitled to appeal that decision to Obama’s Assistant Secretary of Education for Civil Rights, Catherine E. Lhamon. It did so in a letter of September 29, 2014. The appeal had enough merit that, by the time Marcus assumed his position, Ms. Lhamon had still not decided the appeal. Had the Times cared to be accurate, it would have reported not that Assistant Secretary Marcus reached out to open a closed seven-year old case but that he ruled on an appeal that had been left undecided by his predecessor.

The Times story also conveniently ignores the fact that Marcus’s decision on ZOA’s appeal accepted only one of three allegations made by the ZOA. Marcus left intact factual conclusions announced by President Obama’s “Compliance Team Leader” on two of ZOA’s three allegations.

More surprising still, the Times story somehow fails to mention that Marcus’s reason for sustaining ZOA’s appeal on its third allegation was a ground that federal and state appellate courts routinely invoke to reverse trial-court decisions. Ms. Frangos’ decision had erroneously rejected evidence that she should have considered. ZOA’s charge was that in permitting an anti-Israel rally Rutgers had condoned an admission policy that allowed supporters of the rally to enter free of charge but required those who opposed it to pay a five-dollar entry fee.

A witness who was a member of the anti-Israel group gave the Education Department investigators an e-mail he had received that, at the last minute, directed that the admission fee be demanded only of students coming to protest the event. The event’s administrators dispatched an email explaining that “150 Zionists just showed up.” Ms. Frangos refused to consider this compelling evidence of discrimination because, she said, the witness had “redacted” it to preserve confidentiality. She could not, on this account, “verify whether this information was credible.” Marcus’s reversal of her decision rejected this spurious explanation.

Finally, contrary to the text of the Times story, Marcus did not say, in reversing Ms. Frangos on ZOA’s third allegation, that he personally “would specifically be reviewing” the finding that had rejected the allegation. As appellate judges routinely do, he sent the matter back for further consideration by the New York investigators (including, one supposes, the current “Compliance Team Leader”).

The report reeks of the Times’s well-known anti-Israel bias. The third paragraph pronounces that Marcus’s decision is part of the Trump administration’s hostility to Palestinians because it “comes after” the move of the US Embassy to Jerusalem, the termination of financial assistance to the Palestinians, and the closing of the PLO office in Washington. As if Assistant Secretary Marcus’s decision on an appeal pending before him was part of a White House cabal.

Nor is the Times content to challenge Marcus’s recent action. His activity in the private sector is demeaned by the Times and his motives scandalously debased. The Brandeis Center – which he founded and led after he left government service in order to protect Jewish students on the nation’s campuses against anti-Semitic and anti-Israel intimidation – is denigrated by the Times as “a nonprofit advocacy organization that Mr. Marcus used to pressure campuses to squelch anti-Israel speech and activities.” “Squelching” speech has never been a goal of either Marcus or the Brandeis Center. Acknowledging that “anti-Israel speech and activities” are a polite cloak for anti-Semitism – as they were in the 2011 Rutgers incidents – is their objective. Law and sound public policy call for a prompt and effective remedy for anti-Semitism in all its shapes and sizes. After it reconsiders the ZOA’s third allegation, the Department of Education staff and Assistant Secretary Marcus should take all measures that the law authorizes to insure the safety and security of Jewish students at Rutgers.

About the Author
Nathan Lewin is a Washington, D.C., attorney who specializes in religious freedom cases before the US Supreme Court.
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