A Q&A with Kenneth Marcus
Kenneth L. Marcus is at the forefront of the battle against antisemitism in the U.S. He is the founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law which handles numerous complaints of antisemitism from Jewish college students as well as from other arenas. Some of these complaints have resulted in federal investigations and lawsuits. From 2018-19, he served as Assistant Secretary for Civil Rights at the United States Department of Education in the administration of then President Donald Trump. He is also the author of The Definition of Anti-Semitism and Civil Rights in America. For a time, he was a visiting professor at Yeshiva University.
Marcus spoke with The Jewish Press about whether or not Jewish parents should still send their children to Harvard, UPenn, or MIT, whether a group that calls itself a Muslim civil rights group has shown itself to be extremist, and one step he thinks would help in the fight against antisemitism.
Were you surprised that in the congressional hearing, the presidents of Harvard, Penn, and MIT refused to say that calling for the genocide of Jews was against their university codes of conduct?
I was surprised that the university presidents did such a poor job of responding to questions that should not have been so difficult for them to answer. There are many things they could have said that would have assured Congress and the public that they were properly focused on fighting campus antisemitism. They failed to do that. They gave narrow, lawyerly answers that suggested an inability to address problems that are not merely societal but have engulfed their own campuses.
Liz Magill resigned from her position leading UPenn. The three women appeared to provide similar answers during the hearing. Do you think the other two presidents should resign or be fired?
I don’t think President Magill was notably worse than [Harvard] President [Claudine] Gay who also failed to respond in a presidential way. To me, the bigger issue is not whether additional presidents resign or are fired. The bigger question is whether these universities are willing to tackle these issues in a very serious way. Simply removing a president is hardly enough, if there isn’t a will to make substantial changes both in the policies and the culture.
The hearing was viewed by many people, and there is a fear that such answers normalize antisemitism. Do you think that even if there are new leaders, anything will change?
This hearing has had an impact on our society which is only beginning to be felt. There are many people, including strongly self-identified Jewish Americans, who were at best passingly aware of antisemitism on college campuses until very recently. Even after October 7, there were some who didn’t get the magnitude of the problem. But now, it is very much in the news and on people’s minds. I have talked to many people who were unaware of the issue until recently who are now enraged and are calling for serious change. This is a moment that creates opportunities. It’s not about changing individuals; it’s about changing culture, and I hope we have the moment to do that.
Some Jewish parents are saying they now may not want to send their kids to Harvard, Penn, or MIT. What would you advise?
There are parents saying they would rather send their children to Yeshiva University or Brandeis University. Far be it from me to discourage them from supporting Jewish communal organizations. Having said that, I don’t think anything is to be gained if we as a community give up on the finest institutions of higher learning. We do not want a situation in which Jewish students lack the credentials and prestige of another student.
The White House condemned the remarks of Nihad Awad, executive director of the Council on American Islamic Relations (CAIR), after he said he was “happy to see” Palestinians “breaking the siege” regarding the terrorist attack of Hamas on October 7. At colleges, there are Diversity, Equity, and Inclusion (DEI) officials who have worked for CAIR. Are you surprised that the government seemed to be surprised by Awad’s statement, and should there be concern that DEI officials who have worked for CAIR may share similar opinions to its leader?
For many years, especially since CAIR was designated as an unindicted conspirator in a terrorism case, there have been many in the Jewish community and elsewhere who have viewed CAIR as being an extremist organization that is merely pretending to be a civil rights group. In recent years, I think there have been a lot of people who have been hopeful, maybe wishful that CAIR could fill a responsible role as a Muslim civil rights organization and maybe have turned something of a blind eye towards indications that they are not what they seem. The most salient example of this was when the Biden White House included CAIR as one of its partners for administering the Biden National Strategy on Antisemitism. These recent comments from the leader of CAIR simply affirm the worst fears that people have had and reveals the White House’s wishful thinking was simply baseless. It’s unfortunate.
In your book The Definition of Antisemitism, you include a portion about whether or not anti-Zionism is antisemitism. You write that criticism of Israel is part of democracy and not antisemitism. But you note Natan Sharansky’s 3 D’s of Demonization, Double Standards, and Delegitimization. After calls to gas the Jews and attacks against Jews around the world, the prevalent belief is that anti-Zionism is almost always antisemitism. What is your take?
In the 21st century, today’s anti-Zionism is antisemitism.
In working on the Executive Order on Combating Anti-Semitism, what was the goal?
The goal was to take work that I had done in enforcement matters and formal guidance and to elevate them to the level of a presidential executive order. Having one on combating antisemitism gave much more visibility and force and made it harder for other government officials to disregard them. I’m very pleased that the Biden administration, which rescinded so many other of Donald Trump’s executive orders, has not rescinded this one. Biden officials will say, when asked, that Executive Order 1399 remains in active force. Nevertheless, it would be far stronger to have a regulation codify the executive order, or better yet, a statute. That’s why I recommended toward the end of the Trump administration that the Education Department issue a formal regulation codifying the Trump order and making it less vulnerable to challenge. The Trump and the Biden administrations agreed to it.
It is awful to see at this moment in time, when antisemitism is so rampant, that the White House is not willing to give this issue the priority it deserves. They have continuously delayed this regulation throughout the entire presidential term. The fact that they could at the beginning of Chanukah announce that they need yet another entire year to issue this very simple regulation is just stunning. They’ve done a draft. It doesn’t require any significant amount of work. They just have to be willing to prioritize this issue.
In this hearing and a previous hearing by the New York City Council, there hasn’t been reference to a single student disciplined for antisemitic behavior. I did see an NYU student posted that she has been disciplined for ripping down a hostage poster. Are you aware of cases where students have been disciplined? I know there are rules precluding [the witnesses from] using the names of students, but could they speak of the cases?
There have been times universities have hinted to us that students have been disciplined in some way as a result of our complaints or allegations. They seldom are willing to say so clearly or publicly. In cases in which I am familiar, if they provided a description, it would be obvious who they were talking about.
What lawsuits or investigations are taking place due to your work?
If we are talking colleges as opposed to school districts, in federal district court, the case of the University of California-Berkeley is pending. With the Office of Civil Rights, there is Wellesley University, the University of Pennsylvania, the University of Southern California, the University of Illinois at Urbana-Champaign, Brooklyn College, and SUNY New Paltz. We have filed those complaints with OCR (Office of Civil Rights), other than [the Berkeley case in federal court], and 100 percent have resulted in active open investigations.
There is always talk of the importance of the adoption of the IHRA (International Holocaust Remembrance Alliance) definition of antisemitism. Why is it important?
The government has already adopted IHRA. The federal government substantially adopted the same definition under the Obama administration, and it was raised to a higher level under the Trump administration. The question is whether the Biden administration is willing to state with clarity and specificity that it is using IHRA and holding colleges and universities responsible if they fail to act in a way that is consistent with the legal requirements of IHRA. There is a great deal of confusion and ignorance about whether IHRA needs to be adopted or has been adopted. It is part and parcel of a current active policy of the U.S. Department of Education. Federal funds recipients, which include nearly every college in this country, are responsible for complying with federal guidance. They have this legal responsibility, but they act as if they do not. At this moment, it is so important to have clarity in the law. That’s why it was important that the Biden White House promised to issue their regulation by December 2023. They now say they refuse to do so.
Jewish college students hear chants, get yelled at, there are images projected, and there have been a wider range of complaints from what a professor can or can’t say in class or other instances where they feel intimidated. Of course, they can contact you or their own personal lawyer if they have one, but how do they know what is or is not actionable if the presidents of colleges can’t articulate it?
The IHRA working definition isn’t going to solve every question, but it would be a big step forward. I have to say we get a lot of questions about close calls and gray areas. The fact is, this obscures what’s really happening on college campuses. A lot of smart people, including professors and pundits, like to explore where the boundary lines are and create the impression that what’s happening on college campuses [is] what’s in the gray area. The fact is Jewish students are being assaulted, Jewish property is being vandalized. There are many instances of anti-Jewish activity that is not within the gray area. We can have discussions about where the lines are in some cases, but those discussions tend to create the misleading impression that that is the biggest issue happening for Jewish students in higher education.
At the rally in Washington, D.C. a number of speakers said antisemitism will not be tolerated, but it seems like it is. What would be one thing that would give you hope or a sign of things improving?
I would like to see universities adopting the IHRA definition and integrating it in their DEI programs and procedures.
