Thursday, December 28, 2017


There may be more unfit nominees than Kenneth Marcus to head the Office of Civil Rights in the U.S. Department of Education, but if there are, they do not readily come to mind.

Mr. Marcus is clueless about freedom of speech or association protected by the First Amendment.

He believes the strong arm of the government should be employed to punish campus speech critical of Israel’s occupation of the West Bank since the 1967 Six Day War. He has filed multiple complaints against major universities under Title VI of the 1964 Civil Rights Act arguing that their support, endorsement or toleration of the Boycott, Divestment and Sanctions Movement (BDS) against Israel constituted racial discrimination against Jews.

The U.S. Supreme Court held in St. Francis College v. Al-Khazaji (1987) and Shaare Tefila Congregation v. Cobb (1987) that Jews and Arabs are protected by the anti-discrimination provisions of federal civil rights statutes. Title VI directs the United States to deny federal funding to any college or university complicit in racial discrimination. The BDS movement generally urges boycotting and divesting from companies doing business in the West Bank and the imposition of political or economic sanctions against Israel for its occupation.

Israel disputes the “occupation” characterization because Jordan had not established sovereignty over the West Bank when it was conquered in the Six Day War. In 1978, the U.S. State Department’s Legal Advisor concluded that Israeli settlements in the West Bank were “inconsistent with international law.”

Abba Eban, former Israeli foreign minister, has argued: “If we insist on maintaining the present territorial structure, which may be possible for a time through physical force, we shall have to give up almost every other attribute of our national vision. If we insist on ruling an entire territory and population … we shall soon lose our Jewish majority, our democratic principles, our hope of ultimate peace, the prospect of avoiding war, the maintenance of our international friendships, the durability of the Egyptian treaty relationship and any chance of a national consensus at home. The status quo is the least viable and the most catastrophic of all the available Israeli options.”

In sum, the legality or wisdom of Israel’s occupation or control over the West Bank are subjects of legitimate dispute both inside and outside Israel, and among persons of diverse races, color, or creeds. Mr. Marcus’ insinuation that every skeptic of the status quo is anti-Semitic and anti-Israel encroaches on the domain of fanaticism.

His zeal blinds him to the free speech teaching of Justice Louis D. Brandeis, the first Jewish Justice appointed to the U.S. Supreme Court and the eponym of Mr. Marcus’ own Center for Human Rights Under Law. Justice Brandeis elaborated in Whitney v. California (1927):

“Those who won our independence believed that the final end of the State was to make men free to develop their faculties … They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; … that public discussion is a political duty, and that this should be a fundamental principle of the American government … that it is hazardous to discourage thought, hope and imagination … that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form.”

The U.S. Senate should require Mr. Marcus to pledge to uphold the letter and spirit of the First Amendment as expounded by Justice Brandeis as a condition to confirmation.

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