Complaint to Inspector General: Special Treatment for Zionist Group Violates Federal Law

Palestine Legal and eight other civil rights organizations have filed a complaint with the inspector general for the Department of Education, urging the office to investigate Assistant Secretary for Civil Rights Kenneth Marcus for violations of federal law in his handling of a case against Rutgers University.

The complaint, submitted on Wednesday by the American-Arab Anti-Discrimination Committee, Asian Americans Advancing Justice – Asian Law Caucus, the Center for Constitutional Rights, the Civil Liberties Defense Center, the Council on American-Islamic Relations (CAIR), Defending Rights & Dissent, Palestine Legal, the Partnership for Civil Justice Fund, and Project South, describes how Marcus deviated from established Department of Education policies and practices to carry out his career agenda of shutting down campus advocacy for Palestinian rights.

A similar group of organizations warned Marcus in December 2018 to stop abusing his position to target campus speech on Palestine. An array of civil rights groups also opposed Marcus’s confirmation because of his abysmal record on civil rights and speech issues. He was confirmed on party lines, with no Democrats voting in his favor, in June 2018.

"The special treatment Marcus accorded the ZOA is a violation of federal law. His actions display a wanton disregard for the impartial role he is expected to play as a civil servant," staff attorney Zoha Khalili explained. "This is both what we expected and feared when Marcus was appointed."

Never-Ending Investigation Chills Activism at Rutgers

The submission to the inspector general focuses on the special treatment Marcus provided to the Zionist Organization of America (ZOA), a right-wing Israel lobby group he had closely collaborated with prior to taking his role in the Trump administration.

In 2011 the ZOA filed a complaint against Rutgers University alleging that Palestine advocacy on campus—in particular a 2011 event sponsored by student groups that shared stories of Holocaust and Nakba survivors—had created a hostile environment for Jewish students. After a years-long investigation, the Department of Education dismissed the case, finding some claims frivolous and others lacking in evidence. The ZOA appealed, joining a queue of hundreds of older appeals awaiting review. 

Marcus has inspired an uptick in threats and actual filings of civil rights complaints against campus activism for Palestinian freedom and scholarship on Palestine.

In August 2018, just weeks after taking office, Marcus moved the ZOA’s appeal to the head of the line and reopened the investigation. Marcus stated in his letter to the ZOA that he would also investigate whether a hostile environment currently exists for Jewish students at Rutgers. Nearly two years later, by all public accounts, the Rutgers case remains open with little apparent progress.

The lingering investigation has taken a toll on Palestine organizing at Rutgers’ New Brunswick campus. Neither the university nor the federal government has shared any information with the university community about the status of the investigation, creating a climate of uncertainty.

“The investigation has cast a shadow over our organizing. We were already facing Zionist intimidation as well as repressive policies for protest on campus,” Rutgers Students for Justice in Palestine (SJP) explained. “The investigation has added to that, especially for younger students who hadn’t been part of SJP before all this. People are afraid to rock the boat. Everyone has been very cautious about how we do things.”

Students reported that the investigation has intimidated both SJP members and the coalition partners they organize with. “There are some people who support us in private, but the investigation seems to be playing into their fears of openly engaging with Palestine advocacy and human rights,” SJP said. 

This unconstitutional chilling effect on student speech is exactly what Marcus had previously boasted is the intended effect of such complaints, even when they fail.

An Excuse to Legislate New Policy

Marcus used the August 2018 reopening letter as an opportunity to announce the Department of Education’s use of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. This distorted definition can encompass virtually all criticism of Israel, inviting the government to unconstitutionally censor advocacy for Palestinian freedom and equality in violation of the First Amendment. Outside of government, Marcus had worked closely with the ZOA to lobby the Department of Education for use of the same definition.

Marcus’s announcement that the definition “is used by” civil rights investigators at the Department of Education seemed to catch many in the administration by surprise. In statements to the media, the department walked back Marcus’s claim, stating that the department had not adopted a formal definition of antisemitism. 

Inappropriate Personal Intervention

Marcus’s personal role in reopening the Rutgers case was a major departure from department practices. Marcus personally wrote to the ZOA reopening the Rutgers case even though the department’s written guidelines do not authorize any role for the assistant secretary in the appeals process. A records request for other appeals decided under the Trump administration did not reveal any others that had been personally signed by the assistant secretary.

Moreover, appeals of Department of Education decisions rarely result in reopened cases. Of nearly 750 appeals decided in the six years prior to the Rutgers reopening, the department had only reopened two other investigations. There were also 435 older appeals that were filed before the ZOA appeal and were still awaiting review when Marcus chose to intervene in the Rutgers case.

Trump’s EO and an Onslaught of Complaints Against Palestine Advocacy

Marcus’s letter to the ZOA and his previous failed attempts to lobby for federal legislation adopting the IHRA definition may have laid the groundwork for an executive order signed by Trump in December 2019 requiring executive agencies, not just the Department of Education, to consider the IHRA definition in conducting civil rights investigations.

Marcus’s appointment to the Department of Education and his ZOA reopening also inspired an uptick in threats and actual filings of civil rights complaints by pro-Israel organizations against campus activism and scholarship on Palestine. The tactic of using civil rights complaints to intimidate student activists—which has long been promoted by Marcus himself—failed after a series of decisions in 2013 and 2014 that found the political activity complained of to be protected by the First Amendment.

From 2015 to 2017, Palestine Legal received no reports of civil rights complaints filed at the Department of Education against Palestine advocacy. After Marcus took office, ten complaints were reported to Palestine Legal from late 2018 through 2019. Records show that additional complaints may have been filed. A majority of these complaints have resulted in investigations under Marcus. Though none have yet found any wrongdoing, students and faculty at universities where investigations have been opened—including NYU, UCLA, Duke, and the University of North Carolina—have reported a cloud of intimidation on campus, with administrators imposing new policies that hamper activism in a bid to protect themselves from government investigation.

In the complaint to the Department of Education, civil rights groups urge the inspector general to fully investigate Marcus’s actions and to take appropriate steps to ensure that he ceases abusing his office to censor Palestine advocacy on campus.