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The Man Who Helped Redefine Campus Antisemitism

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The Man Who Helped Redefine Campus Antisemitism

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In the early 2000s, as the uprising known as the second intifada instilled fear in Israelis through a series of suicide bombings, Kenneth Marcus, then an official in the U.S. Department of Education, watched with unease as pro-Palestinian protests shook college campuses.

“We were seeing, internationally, a transformation of anti-Israel animus into something that looked like possibly a new form of antisemitism,” Mr. Marcus recalled in an interview, adding that U.S. universities were at the forefront of that resurgence.

Ever since, Mr. Marcus, perhaps more than anyone, has tried to douse what he sees as a dangerous rise of campus antisemitism, often embedded in pro-Palestinian activism.

He has done it as a government insider in the Bush and Trump administrations, helping to clarify protections for Jewish students under the 1964 Civil Rights Act and broadening the definition of what can be considered antisemitic.

He has also been an outside agitator, filing and promoting federal claims of harassment of Jews that he knows will garner media attention and put pressure on college administrators, students and faculty.

The impact of his life’s work has never been more felt than in the last few months, as universities reel from accusations that they have tolerated pro-Palestinian speech and protests that have veered into antisemitism.

Since the Oct. 7 Hamas attacks on Israel, the Department of Education’s Office for Civil Rights has opened dozens of investigations into allegations of antisemitism at colleges and K-12 schools, a dramatic increase from previous years.

The bar for starting an investigation is low, but the government has opened cases into institutions as varied as Stanford, Wellesley, the New School and Montana State University.

Mr. Marcus’s nonprofit, the Brandeis Center, initiated only a handful of these complaints, but his tactics have been widely copied by other groups.

Mr. Marcus is “the single most effective and respected force when it comes to both litigation and the utilization of the civil rights statutes” to combat antisemitism, said Jeffrey Robbins, a visiting professor at Brown University, who once served on the Brandeis Center board.

Few, if any, would take issue with the Office for Civil Rights extending protections to students facing antisemitic harassment. But critics say that Mr. Marcus’s larger ambition is to push a pro-Israel policy agenda and crack down on speech supporting Palestinians.

His complaints have often included ugly details, like swastikas being scrawled on doors, and a university’s indifference to them. Those claims, however, have been mingled with examples of pro-Palestinian speech, which some critics say is not antisemitic, even if it makes Jewish students uncomfortable.

One recent complaint against American University includes an example of a student who said that she overheard suite mates “accusing Israel of committing genocide against the Palestinians.” In November, his center filed a complaint against Wellesley College, stating that panelists at an event “minimized the atrocities committed by Hamas.”

The whole point, free-speech supporters contend, is to stir the pot and put colleges under the microscope of a federal investigation. Many universities have since taken an aggressive stance against some forms of speech and protest, moves often decried by academic freedom groups. Columbia, Brandeis University and George Washington University have suspended their chapters of Students for Justice in Palestine.

“These complaints are having the impact that they were designed to achieve,” said Radhika Sainath, a lawyer with Palestine Legal, a civil rights group. “Not to win on the merit, but to force universities to investigate, condemn and suppress speech supporting Palestinian rights, because they are so fearful of bad press and donor backlash.”

Mr. Marcus said the complaints stand on their own merit, but he nodded to their larger impact.

“We realize that the value achieved by these cases is far greater than the narrow resolution might be,” he said.

The goal, he added, is “about changing the culture on college campuses so that antisemitism is addressed with the same seriousness as other forms of hate or bias.”

Mr. Marcus, 57, said that he had not intended to devote his career to fighting antisemitism.

Growing up in Sharon, Mass., a small town south of Boston, he ran into children who hurled rocks at him and yelled, “Go back to your Jew town,” he said.

But Sharon also had a sizable Jewish population, and he said that he thought of antisemitism as a “relic of the past.”

His Depression-era parents adored Franklin Delano Roosevelt, and in high school, Mr. Marcus worked as an intern for Representative Barney Frank, the liberal congressman.

Mr. Marcus’s politics began to change at the local library, where he read books by conservative thinkers, such as Thomas Sowell and Ayn Rand. While studying at Williams College and the University of California, Berkeley, School of Law, he became captivated by the conservative legal movement. And as a young corporate litigator, he took on First Amendment cases, which drew him into civil rights work.

By 2004, he was the interim leader of the Department of Education’s Office for Civil Rights, where he helped reframe how the department considered antisemitism cases.

Back then, the office declined to take those cases. That is because it was charged with enforcing Title VI of the 1964 Civil Rights Act, which prohibits discrimination based on race, color or national origin — but not religion.

But in an official letter, Mr. Marcus wrote that the agency’s Title VI enforcement would include ancestry — meaning students who are harassed because of their ethnic and religious characteristics, including “Arab Muslims, Jewish Americans and Sikhs.” In 2010, the Obama administration endorsed and clarified that interpretation of Title VI.

The complaints involving shared ancestry began with a trickle. The first, filed a month after Mr. Marcus’s 2004 letter, was by the Zionist Organization of America against the University of California, Irvine. The complaint included accusations of antisemitism related to the Middle East conflict, such as a sign by a student group that said, “Israelis Love to Kill Innocent Children.”

In those early years, Mr. Marcus and the Z.O.A. were the main ones pushing the Title VI antisemitism cases, said Susan Tuchman, an official at Z.O.A.

She recalled that an official of one major Jewish advocacy group, which she declined to name, yelled at her over the phone, saying that her complaint was counterproductive and targeted speech protected by the First Amendment.

Mr. Marcus “understood when few others did,” she said, “that campus antisemitism was a serious problem and that Jewish students didn’t have the legal protections that they needed.”

His independent advocacy began in earnest in 2011, when Mr. Marcus started the Brandeis Center, based in Washington (and unaffiliated with Brandeis University in Massachusetts).

There were larger, more established Jewish groups, like the Anti-Defamation League, but Mr. Marcus said he wanted his nonprofit to focus on campus legal work.

Media attention was an important part of his strategy. He explained his rationale in a 2013 column in The Jerusalem Post, after President Obama’s Office for Civil Rights had dismissed an early wave of such complaints, including the Irvine case, saying they involved protected speech.

“These cases — even when rejected — expose administrators to bad publicity,” Mr. Marcus wrote, adding, “If a university shows a failure to treat initial complaints seriously, it hurts them with donors, faculty, political leaders and prospective students.”

Mr. Marcus said the complaints create “a very strong disincentive for outrageous behavior.”

“Needless to say,” he wrote, “getting caught up in a civil-rights complaint is not a good way to build a résumé or impress a future employer.”

In 2018, his tactics led some liberal groups to oppose his appointment as the civil rights chief of the Department of Education.

The Leadership Conference on Civil and Human Rights, a coalition of liberal groups, wrote in a letter to senators that Mr. Marcus had sought to use the complaint process “to chill a particular political point of view, rather than address unlawful discrimination.”

The letter also accused Mr. Marcus of undermining policies, like race-conscious admissions, that shielded other groups. The Senate narrowly confirmed him on a party-line vote.

After he took office in 2018, Mr. Marcus did not try to make peace with his critics.

He promptly reopened a Title VI case, brought by the Zionist Organization of America against Rutgers University in New Brunswick, N.J. The Z.O.A. had appealed the dismissal of its case for insufficient evidence.

He used the Rutgers case to embrace, for the first time, a definition of antisemitism put forth by the International Holocaust Remembrance Alliance, which includes holding Israel to a “double standard” or claiming its existence is a “racist endeavor.”

To Mr. Marcus, the definition helped pressure colleges to stop tolerating behavior against Jews that would be unacceptable if directed at racial minority groups or L.G.B.T.Q. students.

But to pro-Palestinian supporters, Mr. Marcus was using the definition to try to crack down on their speech. They said that the Education Department already had the power to investigate and punish harassment, and this new definition just confused administrators about what was allowable.

“No one says we need the I.H.R.A. definition so we can go after Nazis talking about killing Jews or classic antisemitic tropes about Jews and media and banks,” said Lara Friedman, the president of the Foundation for Middle East Peace. The definition, rather, “is about getting at this other supposed antisemitism.”

The next year, the Trump administration issued a sweeping executive order on combating antisemitism and instructed all agencies to consider the I.H.R.A. definition in examining Title VI complaints.

The complaints seem to be affecting campus culture — for better or worse depending on whom you ask. The Department of Education’s Office for Civil Rights said it has opened up 89 shared ancestry investigations into colleges and K-12 schools since Oct. 7, making up more than 40 percent of such cases opened since 2004.

Education Department officials in the Biden administration have said there is no tension between the First Amendment and Title VI. They said universities can prevent hostile learning environments without curbing free expression by, for example, properly investigating complaints, creating support services for students or condemning hateful speech.

But academic freedom supporters counter that administrators will go out of their way to avoid complaints altogether, especially now that the department has accepted the I.H.R.A. definition. The executive order remains in effect, and the Biden administration is considering a regulation on the matter.

Last month, Debbie Becher, a sociology professor at Barnard College, wrote in the student newspaper that the school’s president asked her to “pause” the showing of “Israelism,” a documentary critical of Israel.

In their meeting, the president, Laura Rosenbury, cited worries about Title VI and pointed out that the film was cited in a lawsuit accusing Harvard of antisemitism. Ms. Rosenbury did not respond to interview requests.

“My arguments that this was overt censorship, a violation of academic freedom, and dangerous for Barnard’s culture fell on deaf ears,” wrote Dr. Becher, who went forward with the event.

Mr. Marcus continues to press his case. The Brandeis Center, which started as a one-man operation, now has 13 litigators.

He said he is happy there but would not rule out another stint in a future Trump administration.

“I’ve spent my career focused on this battle,” he said, “and it seems sometimes as if it’s all been leading up to this very moment.”

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