December 5, 2017

Chairman Lamar Alexander

Senate Committee on Health, Education, Labor, and Pensions
United States Senate

Ranking Member Patty Murray

Senate Committee on Health, Education, Labor, and Pensions Committee
United States Senate

Dear Chairman Lamar Alexander and Ranking Member Patty Murray,

Defending Rights & Dissent is national civil liberties group that works to fulfil the promise

of the Bill of Rights for everyone. We also place a special emphasis on defending the right to

political expression. We are writing to you to urge you to reject Kenneth Marcuss nomination for

Assistant Secretary for Civil Rights at the U.S. Department of Education (DOE).

We support civil rights protections and call for them to be rigorously enforced. However,

Marcus has continuously expounded legal theories that seek to turn political expression about

Palestinian human rights advocacy into a civil rights violation. These legal theories have been

repeatedly rejected by the DOE Office of Civil Rights (OCR). We are concerned that in charge of

uch a
the OCR, Marcus will use this position to suppress speech he personally opposes. S

move would not only violate the First Amendment, it would make a mockery of civil

rights.
 As President of The Louis D. Brandeis Center for Human Rights Under Law, Marcus

claims to have the noble goal of defending the civil rights of Jewish Americans, but appears to

be more interested in silencing speech supportive of Palestinian human rights or critical of

Israeli policies.

Under Marcus leadership, The Brandeis Center has repeatedly filled meritless Title VI

complaints with the OCR. These complaints, brought against such institutions as UC Santa

Cruz, UC Irvine, UC Berkeley, and Brooklyn College, allege that political speech about

Palestinian human rights violates the civil rights of Jewish students. Actions attacked as

violating federal civil rights law included the screening of a movie about the Israeli military

occupation of Palestinian territory, a mock military checkpoint meant to raise awareness about

life in the Occupied Palestinian Territories, and even a speech by a Holocaust survivor and IDF

soldier that was critical of Israeli policy. These complaints were rightly rejected by the OCR. The

OCR determined they constituted expressions on matters of public concern directed at the

University community and that exposure to such robust and discordant expressions was to be

expected in a university environment.

Marcus Brandeis Center also lobbied Congress for federal legislation that would have

severely encroached on academic freedom in Middle Eastern Studies. Under the Higher

Education Act, some Middle Eastern Studies departments receive federal funding. The Brandeis

Center, claiming Middle Eastern studies faculty were too critical of US Middle East policy and/or

Israel, proposed either cutting funding entirely or creating a federally mandated mechanism to

police free thought within Middle Eastern Studies departments. These mechanisms were

allegedly meant to ensure a diversity of perspectives, but they were really about policing

heterodox views.
 The mechanism favored by Marcus and the Brandeis Center was to have universities set

up an oversight board to review the level of scholarship in Middle East Studies departments.

This board was to include not just Middle East studies scholars, but Israel Studies scholars,

scholars from other disciplines, and non-faculty members, along with a grievance mechanism

allowing for individuals to report on perceived political bias in Middle East Studies departments.

While Marcus is deeply passionate about regulating the political speech of those who

disagree with him, he has been less proactive in actually defending civil rights. As Staff Director

of the U.S. Commission on Civil Rights (USCCR) from 2004 to 2008, Marcus actively sought to

end the use of affirmative action by law schools and attempted to pressure the American Bar

Association to end its requirement that law schools seeking accreditation demonstrate a

commitment to diversity. Marcus also opposed the USCCR expanding its mission to allow it to

protect the rights of LGBT people.

Marcus interest in civil rights seems limited to advancing unusual legal theories to

silence opinions on Palestine-Israel he disagrees with. As the DOEs Assistant Secretary for

Civil Rights, Marcus would endanger the First Amendment and civil rights, his nomination

should be rejected.

Sincerely,

Chip Gibbons
Policy & Legislative Counsel
Defending Rights & Dissent

CC: Members Senate Committee on Health, Education, Labor, and Pensions