Posted by Suher Adi on October 23, 2018 in Blog

While it has been accepted that political speech is protected through the First Amendment, the current political climate is challenging this notion. Anti-BDS legislation has been passed in 25 state legislatures and is also currently pending in 12 other states. There is also legislation on the federal level, both the “Anti-Semitism Awareness” and “Israel Anti-Boycott” acts have been introduced as attempts to silence Palestinian human rights activists. Most recently with the recent appointment of Kenneth Marcus to the head of the Office of Civil Rights (OCR) in the Department of Education (ED), the current political climate has made clear that free speech is for a select few. Ironically, the administration that is supportive of this legislation and are sitting quietly as Marcus attempts to stifle student’s rights to free speech is exactly the same as the one that threatened to withhold funding, fought campuses across the country to host controversial speakers like Milo Yiannopoulos just a few months ago, and is currently investigating select campuses for infringing on conservative speech. Their message is clear. Free speech is something we champion when it is speech we agree with, but the minute it challenges our worldview we cannot stand for it.


AAI has been working on free speech issues for years ensuring that the Arab American community’s rights to free speech were not being infringed upon. So, when Kenneth Marcus was said to be appointed as Assistant Secretary of the OCR within ED, we stood firm in our opposition. We were not alone in our opposition to Marcus, the ACLU and The Leadership Conference on Civil and Human Rights along with other civil rights groups joined us in expressing concerns with Marcus. These concerns were on a variety of civil rights issues from Title VI to LGBTQ discrimination. The ACLU and AAI both shared concerns of Marcus using his appointment to promote his political agenda and stifle students’ speech that is critical of Israel.


As head of OCR Marcus is charged with ensuring that every student has the same educational opportunity and should work to combat discrimination on college campuses. OCR is an avenue for many marginalized students to seek protections and recourse against discrimination they face. Marcus’s history with ED dates back to the Bush administration, where he worked in the Office of Civil Rights. It was there that he was able to understand the system to advance his political agenda. After leaving OCR he helped start the Brandeis Center, whose stated objective is to combat anti-Semitism but in actuality promotes the conflation of anti-Semitism with anti-Israel activism to curb Palestinian advocacy. It was in his role as President of the Brandeis Center that Marcus brought forth multiple cases representing Jewish students who believed they were victims of anti-Semitism under Title VI.  


OCR investigated claims at UC Irvine, UC Santa Cruz, UC Berkeley, and Rutgers University. All four of these complaints were closed without further action, meaning the Office of Civil Rights found no basis for anti-Semitism in these cases at all four universities. In fact, it is clear that these claims are an attempt to stifle free speech. In a piece for The Jerusalem Post Marcus explains that he is “creating a very strong disincentive for outrageous behavior by students in particular. Israel-haters now publicly complain that these cases make it harder for them to recruit new adherents… Needless to say getting caught up in a civil rights complaint is not a good way to build a resume or impress a future employer.”   


Since then, Marcus has assumed his role as Assistant Secretary. Among his first moves as Secretary was to reopen the Rutgers University case citing negligence on the part of the previous investigators who he felt did not weigh the evidence rightfully, saying that pro-Israel students were likely assessed by appearing to look Jewish. Marcus announced he would be reopening the Rutgers case in a letter to none other than the Zionist Organization of America (ZOA) stating a definitional shift in anti-Semitism that includes “denying the Jewish people the right to self-determination” and “claiming that the existence of a State of Israel is a racist endeavor.” The ZOA is an organization whose President calls a Palestinian a “filthy Arab” and then defends his usage of the ethnic slur. By reopening this case in a letter to such an organization, and applying this broad definition of anti-Semitism it is clear that OCR, under Marcus, will violate the rights that they are charged and claim to protect all the while advancing Marcus’s own political interest. 


It bears repeating, it is not anti-Semitic to point out the fact that Israel engages in human rights abuses every day, imposes a blockade on Gaza effectively leaving the people of Gaza without water or electricity for days at a time, and does not plan to end the now 51 yearlong military occupation of the West Bank. Similarly, it is not anti-Semitic to call for the right of return of all Palestinian refugees or assert that Gaza is the largest open air prison. Nor is it anti-Semitic to discuss the fact that Israel detains and imprisons Palestinian children, or that Palestinian citizens of Israel are discriminated against based on their ethnicity. These valid criticisms of Israel, are just that—valid criticisms that any person and student has the constitutional right to express.


While the Department of Justice as part of the Trump Administration has made it clear that they will fight campuses to ensure that select students are not discriminated against, their silence on the free speech of student protestors and those engaged with Palestinian human rights is deafening. The recent move to reopen the Rutgers case by Marcus is nothing short of his misuse of power to instill his longstanding political agenda to combat the growth of Palestinian activism on college campuses, nothing more and nothing less. It seems the administration that seeks to present itself as the champion of unequivocal free speech is actually presenting a very narrow understanding of free speech that results in protected speech for campus conservatives at the expense of student activists and those who speak out against human rights abuses at home and around the world.