Kenneth L. Marcus

Kenneth L. Marcus
Assistant Secretary of Education for Civil Rights
Incumbent
Assumed office August 6, 2018
President	Donald Trump
Preceded by	Catherine E. Lhamon
Personal details
Education	Williams College (BA) UC Berkeley (JD)

Kenneth L. Marcus is an American attorney, academic, and government official. Previously serving as president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, Marcus was nominated by President Donald Trump to become Assistant Secretary for Civil Rights at the United States Department of Education. He began on August 6, 2018. Marcus previously served as the Lillie and Nathan Ackerman Chair in Equality and Justice in America at Baruch College of the City University of New York. He also previously served as staff director of the United States Commission on Civil Rights and was delegated the authority of Assistant Secretary of Education for Civil Rights under President George W. Bush.^[1]

Marcus was credited by the Wall Street Journal with having taken "an agency in disarray" that lacked "basic management controls," and turned it into an agency that "deserves a medal for good governance."^[2]

As director at the U.S. Commission on Civil rights, Ken L. Marcus instituted a number of important changes and his successors continued the work that he had begun in reinvigorating the agency. According to James S Murphy, writing for The Atlantic: "With Marcus, the administration started taking a stronger approach to enforcing civil-rights laws. During his term, he issued guidance reminding schools of the need to have a Title IX officer and clarifying that Title VI also protected students of faith from discrimination."^[3] Marcus' work spearheaded OCR's efforts to better enforce and protect civil-right laws in America.^[4]

Education

Kenneth L. Marcus received a Bachelor of Arts, Magna Cum Laude, from Williams College in June 1988. He was elected a member of Phi Beta Kappa in June 1987. He received a Juris Doctor from University of California, Berkeley, School of Law, Boalt Hall in 1991.^[5]

Berkeley Three Case

Early in his career, Marcus served as lead counsel for the so-called "Berkeley Three," a group of neighborhood activists in Berkeley, California, who sued the federal officials of the U.S. Department of Housing and Urban Development for investigating why they criticized a housing project in their neighborhood in 1993. In collaboration with the Center for Individual Rights, Marcus prevailed in this First Amendment lawsuit before a federal district court in 1998. This victory was affirmed by the U.S. Court of Appeals for the Ninth Circuit in 2000.^[6] In a unanimous opinion, the Ninth Circuit held that the investigating officials "could not have reasonably believed their actions to be consistent with the First Amendment." Civil libertarians hailed the decision as "good news for friends of free speech" and a "decisive rebuke" to HUD. National publicity regarding this case forced HUD to change its policy on fair housing investigations.^[7]

Fair Housing Enforcement

After resolving the Berkeley Three case, Marcus left private practice to serve in various roles in the administration of President George W. Bush, beginning as General Deputy Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity. In this role, Marcus announced stepped-up enforcement against lending discrimination and announced a reduction in the agency's aged-case backlog from 80 percent down to 37.1 percent. He also announced new initiatives to address predatory lending, as well as enhanced attention to housing problems faced by persons in the Southwest border area. During his tenure, HUD claimed to increased the number of accessible housing units for a person with a disability by over 1200 through major cases in the District of Columbia and Boston.^[8]

Marcus also joined with Department of Justice officials to announce the resolution of various high-profile disabilities lawsits. For example, in a Las Vegas case, a developer was made to pay $350,000 to retrofit a condominium complex to bring it into compliance with the Fair Housing Act and to compensate disabled persons who were harmed by the complex's lack of accessible features.^[9] In an Idaho case investigated under Marcus' supervision led to the retrofitting an eighteen unit apartment complex to make it accessible to persons with disabilities and the payment of an additional $48,000 in damages and penalties.^[10]

Office for Civil Rights

Later in the administration of President George W. Bush, Marcus was delegated the authority of Assistant Secretary of Education for the Office for Civil Rights (2003-2004) and served as Staff Director of the U.S. Commission on Civil Rights (2004-2008)^[11] At OCR, Marcus developed an initiative to address the misdiagnosis of racial and ethnic minorities in special education, as well as issuing regulations and guidance to address Title IX grievance procedures, religious minorities, racially segregated school activities, single-sex classrooms, and patriotic youth organizations.

In May 2004, Marcus issued a letter admonishing recipients of federal education funds that they must fully comply with Title IX and designate a Title IX coordinator. Members of the National Coalition for Women and Girls in Education (NCGWE), had urged the Office for Civil Rights to issue such guidance to strengthen Title IX. The Office for Civil Rights had found that some institutions were not complying with the Title IX requirement that every recipient of federal funding designate and adequately train at least one Title IX coordinator. Feminist advocates praised this measure as an "important letter," explaining that it would "help students, teachers, and parents know who to contact for advice and complaints in their own pre-schools and elementary and secondary schools as well as post secondary institutions."^[12]

Marcus joined with then-Assistant Attorney General for Civil Rights Rene Alexander Acosta to issue guidance warning school districts to cease racially segregated activities. Their joint letter warned that practices such as holding segregated high school proms or naming separate race-based sets of recipients for senior-year honors (such as homecoming queen) "are inconsistent with federal law and should not be tolerated."^[13]

In perhaps his most famous policy pronouncement, Marcus issued guidance clarifying that the Office for Civil Rights would protect the rights of ethnic groups that also share a religious faith, to the same extent as if they did not share a common faith. The policy has been applied to Jewish, Muslim, and Sikh students. This policy has been described as "groundbreaking" but also "controversial." ^[14]

In October 2004, Marcus issued a notice of proposed regulations clarifying the legal limitations on single-sex classrooms and schools.^[15][16] They amended the regulations implementing Title IX of the 1972 Education Amendments in order to provide greater flexibility for schools to offer single-sex public elementary and secondary education.

Academic career

After he left government, Marcus served as the Lillie and Nathan Ackerman Visiting Professor of Equality and Justice in America at the City University of New York Baruch College School of Public Affairs. He taught courses on Diversity Management, Anti-Semitism and Civil Rights Law, and Law for the Education Administrator. He also oversaw the Ackerman Lecture Series, which invites intellectuals and public figures to spur debate and new thinking on equality and social justice. During this period he was named one of the Top 100 Twitterers in Academia.^[4]

While serving on the CUNY faculty, Marcus also directed an anti-Semitism program at the Institute for Jewish and Community Research. In 2011, he filed a high-profile but unsuccessful civil rights complaint against Barnard College, alleging that a faculty member had unlawfully "steered" a student away from taking a class from a professor who had created a hostile environment for Jewish students.^[17]

Israeli interest advocacy

Later in 2011, Marcus founded the Louis D. Brandeis Center for Human Rights Under Law in order to "advance the civil and human rights of the Jewish people and promote justice for all." The following year, The Jewish Forward named him to the "Forward 50" list of American Jews who had the greatest impact on the news during the prior year, based on his innovative use of Title VI of the Civil Rights Act of 1964 to protect Jewish college and university students. In naming Marcus one of "the new faces of Jewish power," the Forward editorialized that "if Marcus has any say in it, we may witness a new era of Jewish advocacy. ^[17]

Anti BDS activism

According to the US Campaign For Palestinian Rights, Kenneth Marcus has helped file or otherwise supported Title VI discrimination complaints filed with the Department of Education. Six separate complaints have been filed against UC Irvine, UC Santa Cruz, UC Berkeley, Rutgers University, Barnard College, and Brooklyn College. These complaints alleged that certain activities by Palestine solidarity organizations on campus constituted violations of Title VI anti-discrimination provisions through "harassment" or "intimidation" that "targets" and creates a "hostile educational environment" for Jewish students.

The Department of Education has dismissed four of the complaints "with written determination letters stating that the First Amendment protects speech critical of the state of Israel and that such speech does not constitute a civil rights violation." A fifth case was dismissed due to insufficient evidence and a sixth case was settled before it was investigated.^[18] In a Jerusalem Post article Marcus said that "[s]eeing all these cases rejected has been frustrating and disappointing, but we are, in fact, comforted by knowing that we are having the effect we had set out to achieve." ^[19]

Publications

References