How to Protect Civil Rights in Schools Without a Department of Education: Fmr. Assistant Sec. Kenneth L. Marcus

[RUSH TRANSCRIPT BELOW] “Despite decades of a US Department of Education, we’re not doing any better in educating our students. If anything, we’re now doing worse … I think the question is how the American people can best be served. The goal shouldn’t be to preserve jobs of bureaucrats. The goal shouldn’t be to preserve the status quo. We should ask, how can we best serve students and their families?”

As part of our special series on the U.S. presidential transition period, I’m sitting down with Kenneth L. Marcus, former assistant secretary of education for civil rights and the founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law.

Views expressed in this video are opinions of the host and the guest and do not necessarily reflect the views of The Epoch Times.

*Big thanks to our sponsor Patriot Gold Group for this episode. Check them out here.

RUSH TRANSCRIPT

Jan Jekielek:
Kenneth Marcus, such a pleasure to have you on American Thought Leaders.

Kenneth Marcus:
The pleasure is mine. Good to be with you.

Mr. Jekielek:
Ken, you ran the Office of Civil Rights in the Department of Education. You’ve investigated thousands of cases. Why don’t you tell me, what does the Office of Civil Rights do?

Mr. Marcus:
Sure, I’d be happy to. It’s called OCR, the US Department of Education’s Office for Civil Rights. And it addresses discrimination on the basis of race, color, national origin, age, sex discrimination, even certain patriotic
youth organizations. And it does so to ensure that federal funds are not used by schools, colleges, or universities in ways that facilitate discrimination against minority groups.

Mr. Jekielek:
In retrospect, how important is the function of this department, having been deep into it?

Mr. Marcus:
It is an agency that affects students and families around the country. Anyone who’s ever been a student in a public elementary or secondary school or college or university is protected in some sense by this agency.
When it acts well, it protects vulnerable populations against discrimination and harassment. When it acts badly, it can facilitate other sorts of problems, like the so-called kangaroo courts in colleges and universities under sexual harassment or assault cases.

It’s a fairly big agency for one that some people have never heard of. This past year, reportedly, it had 20,000 complaints from around the country, ranging from race discrimination to language discrimination issues to disability cases and anti-Semitism cases, which is a subject that I’ve worked on for many years.

Mr. Jekielek:
There has been discussion of dismantling the Department of Education entirely. So what would be the impact? Presumably this office would also disappear.

Mr. Marcus:
If the department is closed, as President Trump has supported, and as I personally think is a good idea, it could be closed in lots of different ways. Under some proposals, OCR remains an agency, but is moved to another department, like the Department of Justice. In other permutations, it might be changed in various ways or reduced. I haven’t yet seen a proposal under which it’s eliminated altogether. Depending on how it’s addressed, it might be the same or it could even be better.

For example, if it handles fewer cases, but those cases it does handle are addressed not through the administrative state, but through the courts in a way that might have more impact on the most serious cases. Give me an example of where the agency functions well according to how you just described it. So I would say that during the Trump administration, under the Trump executive order on combating anti-Semitism, the agency sent a strong signal that institutions can’t use double standards and that they need to address discrimination against Jewish students the same as discrimination against other sorts of groups.

There have been other ways in which it’s acted well. During the George W. Bush administration, I had the honor of overseeing an enforcement initiative that addressed misidentification of certain racial and ethnic minorities in special education programs that were not appropriate to their learning and their conditions. Sometimes the agency gets it right and is able to provide students and their families with an environment which is equal to those of other groups. Sometimes it can be heavy-handed and inappropriate.

Mr. Jekielek:
The case that you described under George W. Bush, that’s where students were being, basically students who were fully functional but just, I guess, illiterate, were being classified as having special needs or something like this?

Mr. Marcus:
For those of us who remember the George W. Bush administration, you might recall that President Bush was very big on reading issues and on providing research-based reading instruction in the public schools as opposed to some of the more politicized approaches to reading that weren’t working. Now, civil rights agencies don’t teach people how to read, but what we were finding is that there were some schools where inappropriate and ineffective reading programs were leading to high literacy rates disproportionately among racial and ethnic groups. on reading were then in some ways injured twice, first by not getting the best kind of reading instruction and then they were misidentified as being either mildly mentally retarded in some cases or as otherwise mentally disabled in ways that just weren’t true and because of that they were denied educational benefits that were appropriate to who they were.

The problem wasn’t with the kids. The kids were fine. The problem was with the grown-ups who were miseducating them, leaving them uneducated, and then giving up on them, thinking that they couldn’t be taught simply because they were being taught badly, and then pushed aside into a special education program that was just wrong for them.

Mr. Jekielek:
My sense is that this sort of situation has actually only gotten worse since those years. What’s your view?

Mr. Marcus:
Some of the data shows improvement, but schools vary. Certainly during COVID, closure of the schools led to all sorts of problems, especially among those people who were perhaps poorer or in certain minority groups. There is a whole generation that is just now recovering from not just COVID, but from the rush to close the schools down in the wake of COVID. Beyond that, despite decades of a U.S. Department of Education, we’re not doing any better in educating our students. If anything, we’re now doing worse. We’re denying an appropriate education and denying choices that families should have as to how to educate their kids.

Mr. Jekielek:
Please give us an example of when the department doesn’t function well, per your description earlier.

Mr. Marcus:
For example, when it misuses a so-called disparate impact approach to civil rights. That’s a notion, at least as it’s often misused, that says we shouldn’t just ask whether students are treated differently based on their race or national origin. We should also ask, apart from intentional discrimination, whether there are neutral approaches to education that have an adverse impact on some groups.

If you find out, and this is always the case, that approaches have statistical deviations, that it might be that in a particular school, African-Americans might be suspended more often than, let’s say, Asian-Americans. If you find significant statistical disparities, it’s possible that there is intentional discrimination at work. And it’s worth investigating to find out whether students are being intentionally treated differently based on their race.

But if you don’t bother to do that and you just say, it’s bad to have statistical discrepancies, we won’t suspend African-Americans until we have an equal percentage of Asian-Americans who are also treated in that way, there are all sorts of problems that arise from that. And some of the problems involve principals and teachers who are just unwilling to discipline students who are causing problems. And that leads to safety issues for everyone, including often minorities within the public schools.

Mr. Jekielek:
I remember there was one particular student mass shooting situation which was a student where there had been repeated attempts at disciplining, repeated attempts at solving, but just kind of kept falling through the cracks, presumably because of this sort of an approach.

Mr. Marcus:
Of course, when there is a mass shooting, that’s an extreme case, and then there is often a debate within the public as to the cause of that shooting, including whether it is part of a general problem of students made unsafe
as a result of a misuse of civil rights laws. Regardless of whether a particular case you can actually come to the ultimate truth or not, it really is the fact that across the board we have to worry about educators that are focused less on education and more on keeping the federal bureaucrats and federal enforcers at bay in ways that could tie their hands, reduce their judgment, and ultimately make the students less safe.

Mr. Jekielek:
You mentioned this term disparate impact, and that makes me think of diversity, equity, and inclusion, or DEI initiatives. So how big has that, I guess, approach to dealing with perceived harms been in this OCR agency?

Mr. Marcus:
It’s become very significant and problematic. Now, listen, when people talk about DEI or diversity, equity, and inclusion, they mean different things. Those people who support DEI are sometimes talking about compliance with anti-discrimination law. That’s a good thing. Generally speaking,
if there are disabled students who lack access to the bathrooms, for goodness sake, we should give them access. And that is sometimes a matter of compliance with the ADA, the Americans with Disabilities Act. If there are girls who are treated unequally in their schooling, we should address that.

On the other hand, what we’re really talking about, I think, when we criticize DEI, is a specific approach to anti-discrimination, which has very quickly in the last few years become something of a dominant orthodoxy, which is difficult even to question without being challenged. Why are you questioning DEI? What are your motives?

But the fact is that DEI often reduces the complexity of human behavior to binary oppositions. It asks everyone, are you an oppressor or are you an oppressed? Are you a white supremacist or are you BIPOC, black, indigenous, and persons of color. When you divide the world that way, you pit people against each other and it can lead to stereotypes, racial stereotypes, that are harmful, that create social tensions, that create divisions, and sometimes lead to exactly the kinds of racial discrimination that they’re intended to undermine.

Oftentimes we talk to Jewish students in the schools and ask them, does the DEI office help you? Occasionally, they’ll say, yes. Mostly they’ll say, no. Sometimes they’ll say it makes things worse. It makes things worse by treating us as members of a hyper-white privileged group that don’t deserve the same treatment as everyone else. Well, it seems to me that that is the opposite of what our civil rights laws are intended to promote. What they’re intended to promote, I believe, is equal treatment and unity, not different treatment and divisiveness.

Mr. Jekielek:
You have done work around Title VI. Please explain what Title VI is and the work that you did related to it.

Mr. Marcus:
Sure. Title VI is part of the Civil Rights Act of 1964, which you know is the first major civil rights statute created during the civil rights period. There had been a few smaller acts passed during the 1950s, but really since the 19th century, 14th Amendment, and the civil rights laws of the 19th century, this was the first statute that was intended to address racial segregation colleges, universities, and any other institution that receives federal funds that if you have programs and activities that are federally funded, you may not discriminate against your recipients, your beneficiaries, on the basis of race, color, or national origin.

Title VI, which I just described of the Civil Rights Act of 1964, was used in order to try to break down the racial segregation that continued to persist in many parts of the country even years after Brown v. Board of Education, which had held that racially segregated schools are unconstitutional. That same statute continues to be used not just to address segregation, but to address other forms of discrimination and harassment on the basis of race, color, or national art.

Mr. Jekielek:
Please tell us about the Marcus Doctrine.

Mr. Marcus:
That term is used and it’s flattering to me. It’s used to describe the notion, which I had developed about 20 years ago during the George W. Bush administration, that if you face discrimination based on your membership in a group that has a shared ethnic or racial or ancestral background, but also a shared religion or faith, you will receive from the government the same degree of protection as if you shared an ethnic or racial or ancestral background, and no religion.

In other words, the federal government couldn’t treat groups differently or worse just because they shared a common faith. The agency, OCR, that we’ve been discussing had been for many years declining to move forward on cases involving Jews, Sikhs, and members of other, what you might call ethno-religious groups, groups that have both a religion, but also a shared origin in a particular part of the world.

Mr. Marcus:
The notion in this doctrine that we developed in the Bush administration, but that was then later elevated by the Trump executive order on combating anti-Semitism, the notion is that people need to be treated equally and that an agency that is charged with protecting students from discrimination on the basis of race, color, or national origin should do so even with respect to groups that have those characteristics, but also a shared faith.

Mr. Jekielek:
Let’s talk about this Trump executive order on combating anti-Semitism. What exactly did it say? And I’ve heard a lot of different discussion around this, on the one side, criticism, on the other side, a lot of praise. How do you view it?

Mr. Marcus:
It was the most important policy advance that we have seen in fighting campus anti-Semitism in the United States over the last several decades. I would say over my lifetime, there has been nothing as strong as the Trump executive order on combating anti-Semitism. It has two pieces to it. The first piece codifies this notion that we’ve been describing, that Jewish Americans and other ethno-religious groups, but in particular what’s focused on Jewish Americans, are protected by Title VI because of shared ethnic or ancestral background, even though Jews are also a religion, and religion per se is not covered by Title VI. the Civil Rights Act of 1964,
if they receive an allegation of anti-Semitism, and they’re not clear on whether it’s anti-Semitism or not anti-Semitism, and it doesn’t involve protected speech under the First Amendment, but it rises to the level that if it is discriminatory, it’s sufficiently severe or pervasive that it would create a violation of Title VI.

In order to figure out if this is anti-Semitism or not, agency officials should consider the most widely adopted definition of anti-Semitism in the country or in the world. It’s the so-called IHRA, or International Holocaust Remembrance Alliance, definition of anti-Semitism. It’s a little bit too long to try to recite from memory, but it is the definition that has now been embraced by two-thirds of our states, also by dozens of countries around the world.

It is an international standard. It is the only definition that has been embraced and adopted in this way. And the Biden administration has not rescinded it. So by using this Trump executive order, agency officials provide transparency to how they’re looking at anti-Semitism, and they make it clear that when there’s a close case, they are going to use the same approach, the same standards that’s used by most of our states and most of our allies abroad.

Mr. Jekielek:
How do you explain what’s been happening on campuses, basically since October 7th?

Mr. Marcus:
It’s been horrific, hasn’t it? On October 7th, invaded Israel, engaged in widespread systemic slaughter of Israeli Jews and others, engaged
in widespread rape of large numbers of women, tortured many people, kidnapped others, desecrated corpses, did all of this in a mass coordinated effort that is one of the most significant atrocities that we’ve seen in decades. Certainly the greatest mass murder of Jews since the Holocaust. We did not know on October 7 everything that we now know, but we knew enough. We knew that there were murders. We knew about torture. We had evidence of the rape.

And yet immediately after that happened and before Israeli Defense Forces entered Gaza, there were in streets of major cities around the world and on campuses of dozens of universities around the United States, widespread protests, not against the torture, not against the rape, not against the murder, but in favor and against the victims. I don’t think we have ever seen this. I don’t think that we have seen large scale protests aligned with a terrorist organization that had just engaged in mass atrocities.

Over the coming weeks and months, others joined these protests, and some claim to be protesting against the Israeli Defense Forces’ actions in response to the atrocities. And yet we cannot forget, we cannot deny, that this movement began immediately and in a large-scale way in defense of massive human rights violations. This should tell us something about what’s wrong right now on college campuses.

Mr. Jekielek:
You’re very passionate about this, and I want to talk a bit about your work at Brandeis in a moment. But the typical thing that I hear, right, whether we talk about this Trump executive order or the work now to make it into a regulation or passed as an act of Congress, as some sort of special treatment for Jews. How do you respond to that?

Mr. Marcus:
There are actually efforts to eliminate special treatment for Jews. The special treatment that Jews have been getting is double standards. I think that we saw that in the famous congressional hearings of the university presidents, which is that other groups, other minorities, get much more favorable treatment when they allege hate or bias. Jews, this quote-unquote special treatment, is to be given less support.

Sometimes in DEI offices, we will hear officials being explicit about it. And they will say that Jews are not members of a marginalized group. They’ll make this claim. They will say that because Jews are, in their opinion, white,, Jews should not get the same protections as other groups. It is that set of double standards that’s especially problematic, and it is to address the double standards and make sure that Jewish students receive exactly the same protection as other groups, not more, not less. That is the effort that is behind organizations like the Louis D. Brandeis Center and which is also behind the calls for more effective, forceful enforcement by the U.S. government.

Mr. Jekielek:
I’ve understood this Anti-Semitism Awareness Act as basically an extension of the Trump executive order, or codifying the Trump executive order of the previous administration into law. It’s been criticized, however, as potentially abridging free speech. For example, Christian free speech in one case, or the ability to criticize Israel at all. Just very briefly, how do you react to that?

Mr. Marcus:
That’s just a misunderstanding. People don’t realize that the Anti-Semitism Awareness Act would simply codify the Trump executive order on combating anti-semitism which has been in effect for the last five years. It simply makes sure first that we won’t take away the protections that Jews have under the Civil Rights Act, and specifically Title VI. And second, that agencies will continue to use the most widely used definition of anti-Semitism in appropriate cases. Those have both been part of the Trump order.

The Anti-Semitism Awareness Act will strengthen that order by preventing a future administration from simply rescinding with a stroke of a pen. We know that the last administration rescinded many of President Trump’s executive orders. They were able to do that fairly quickly, in some cases quietly. They didn’t rescind this one, but some future administration could. This would give strength to the protections of Jewish students, to the use of this definition. It applies to conduct, not speech. It simply addresses if conduct that violates rules, that’s severe and pervasive and meets federal standards, if it was motivated by anti-Semitism and that makes a difference.

For instance, if you might throw a rock through the window of a Jewish building, and then there’s a question, did you do it on purpose? Did you do it by accident, where you’re trying to cause alarm or fear in a particular religious or racial community. It provides that the government can use this widespread, well-used definition to determine whether the conduct, not speech, but conduct, was motivated by anti-Semitism.

It’s a common-sense thing. It’s been adopted around the world. I think we should be grateful for President Trump adopting it through the executive order, and we should be hopeful that Congress will do the right thing, or perhaps that the Biden administration will issue the regulation. One way or the other, it would be useful to see a strengthening of the Trump executive order on combating anti-Semitism.

Mr. Jekielek:
What about this criticism of the Israel question? I don’t see anywhere where criticism of Israel is prohibited in these rules?

Mr. Marcus:
It’s just the opposite. This definition actually explicitly says that criticism of Israel, similar to other countries, is not anti-Semitic. So the definition helps to make clear that just because something is critical of Israel, that doesn’t make it anti-Semitic. But if you say, I hate Zionists, and then punch a Jewish person in the face, this could be used as evidence that you were
intentionally selecting a victim based on racial or religious background.

Mr. Jekielek:
Please tell us about your work at Brandeis.

Mr. Marcus:
I founded the Louis D. Brandeis Center over a dozen years ago to fight anti-Semitism on and off college campuses using the law as a tool. The notion was that there were other groups that were involved in education, which is important, but there wasn’t a significant realization that anti-Semitism was growing and was in the process of growing to the point where we needed more effective tools. In the United States, law is a part of how we hold institutions accountable. That needed to be done.

We now have over 20 people, mostly lawyers, mostly litigators, who are working with students and their families, as well as Jewish employees and other groups around the country, to address anti-Semitism, to help these students and their families to express what’s happening to them in ways that will resonate with administrators and others, to help them to help themselves, to work with universities to build policies and approaches that will ensure compliance with the law and equal treatment with everyone, and where necessary, to file lawsuits to hold institutions accountable if they are failing to meet their obligations under the law.

Mr. Jekielek:
Very often, I’ll just say the various scenarios that are happening on multiple campuses across America are described as a freedom of speech issue, like there’s an attempt to sort of prevent the speech of the people, for example, who are anti-Zionist or something like that. How do you respond to that?

Mr. Marcus:
Most often the issue is preventing the speech of students who are Zionist, although there are both issues. So we routinely hear from students who say, we cannot express ourselves without being punished in various ways. I’ll give you a few examples. There are students at colleges who say that they want to serve in student government, but because they are members of Jewish organizations, they’re being excluded. There are efforts to either impeach them from student government positions or keep them out of student government offices.

It’s not just student government. It can be book clubs where they say, no Zionists. So if you express opinions that are not just a viewpoint in support of Israel, but a part of perhaps your identity as a Jewish person, they’ll say no, no, you cannot be a part of our book club. They might say, and this is sometimes very ugly, they might say if you are a victim or a survivor of sexual assault, you may not join our sexual assault survivors group if you are a Zionist. Some 20-plus law student groups have said this at my alma mater, the University of California at Berkeley, they might say that if you are a Zionist, you may not speak on any topic to our group whatsoever. So that essentially eliminates most Jews from addressing any topic at any of these groups.
I don’t support censorship of anyone. There are people who disagree with me who should be able to speak. They should be able to form groups. They should be able to have speakers. But they should not be able to physically attack one another. So we sometimes intervene where there is assault, where there is vandalism, where there are other acts that are not protected speech. And this, in my mind, has nothing to do with speech, and those who claim it is are simply incorrect.

Mr. Jekielek:
You’re litigating lots of these cases now.

Mr. Marcus:
Yes. We have cases against Harvard and against Berkeley. We have cases against certain public school systems like the New York City public schools, Southern California schools, and other institutions that are discriminating against or harassing Jewish Americans.

Mr. Jekielek:
Why do you think this is happening?

Mr. Marcus:
That’s a good question, and it’s a tough question. In my darker moments, I think the other question is also apt. Why wasn’t it happening during earlier parts of our lifetime? After all, discrimination and bigotry against Jews has occurred in many parts of the world in much of our history. I think we have been fortunate to live in a period where anti-Semitism was significantly lower than it had been previously in our country or elsewhere in the world.

There was perhaps a half a century in the wake of the Holocaust after the Second World War, where we had sharply reduced forms of anti-Semitism and kind of a shock to the public at the extent to which hatred can lead to mass murder. And it may be that the lessons have worn away and that in some ways we are reverting. I think that a generation from now will look back at this period. And we could look back at it in two different ways.
We could look back at it and say we’d had half a century of progress, and that turned around. And the generation that lived and was influential in the beginning of the 21st century failed to meet the demands of the moment.
And things started getting sharply worse. the moment and things started getting sharply worse. Or we could say there was a period in the 2020s when there was a spike in anti-Semitism but it got turned around and we went back to the norms that we have in America, norms of freedom
and equality, norms of treating everybody the same. We might be able to say that.

I think that what happened on October 7 has led many people to think that it’s hopeless, that there’s no way to turn things around, that things are getting very bad, and that things might be unsustainable for the Jewish community. I believe that it is an open question and that we have the power right now to turn things around if we fight. That’s why I support the Trump executive order. That’s why I built the Louis D. Brandeis Center for Human Rights Under Law. That’s why it’s so important, both for Jewish Americans and for other groups, to fight against bigotry, prejudice, discrimination, wherever and whenever we find it.

Mr. Jekielek:
How do you respond to young people? And I’ve, you know, spoken with a number of such young people that will say, you know, of course,I’m not against Jews, but I’m against Israel’s behavior and, you know, this terrible treatment of the Gazans.

Mr. Marcus:
It really is interesting that so few people want to admit that they hate Jews, even when they’re hating the Jewish state, even when they’re hating things that Jews do, even among neo-Nazis. You’ll find this insistence that it is the state of Israel that they’re criticizing, and they’re criticizing it because of the behavior of Israelis and not because of their discrimination. There are people of goodwill who do not harbor prejudice in their hearts who are simply critical of the state of Israel and I would say that criticizing Israel under standards that you apply to other countries is not discriminatory and we shouldn’t say that it is.

There are other people who are using different standards, worse standards for Israel. They are discriminating against the nation of Israel, but they may not realize what they’re doing. They may not be deeply prejudiced. They might be carried away by a particular political movement or something of that sort. But there are also some who know exactly what they’re doing and who realize that they are simply using this as an Let’s go back to the Office of Civil Rights.

Mr. Jekielek:
Let’s say the Department of Education stays intact initially, given some of the challenges you described and, frankly, some of the issues that it deals with. You said 20,000 cases that need to be looked at in the last year, I think you said. What needs to happen with the Office for Civil Rights in this incoming Trump administration?

Mr. Marcus:
President Trump has spoken more often and more forcefully about OCR issues, that is to say, civil rights issues affecting students, than just about any prior presidential candidate. He has talked about Title IX reform. That’s issues about how men and women are treated, and it has to do with LGBTQ issues, but it also has to do with other sorts of equity issues. It has to do with so-called kangaroo courts by which students accused of sexual harassment might be denied due process.

He’s talked about those issues including males given access to bathrooms or locker rooms in ways that create problems for women and girls. He’s also talked about other forms of racial discrimination, perhaps those that are related to the racial preferences that were found unconstitutional by the Supreme Court in the recent Harvard University case. He’s talked about a variety of different ways in which DEI or others are creating problems in the university and violating federal law.

Each new administration follows the priority of the president who appointed them and who was elected by the American people. President Trump has laid out in his public speeches a series of priorities. I think OCR needs to take what President Trump has been saying and to translate them into specific initiatives, policies, and priorities that reflect the promises that President Trump has made. And this incoming president has been very forceful about what needs to be done, and the administration just needs to carry it out.

Mr. Jekielek:
In your mind, what would be the top three things, based on what President Trump has said, that should be tackled?

Mr. Marcus:
Title IX reform along the lines of the president’s comments. the anti-Semitic encampments, harassment, discrimination, and violations.

Mr. Jekielek:
Do you have any interest in being a part of that?

Mr. Marcus:
I have always been honored to provide whatever public service that I can. I had the honor of serving in the first Trump administration. I now have the honor of chairing the Louis D. Brandeis Center for Human Rights. I believe that I’m having an impact. In the event that President Trump or the Trump administration saw fit to ask me to provide other forms of service to the United States, I would certainly want to provide whatever I can do to support this president and this administration.

Mr. Jekielek:
Let’s talk about the Title IX work you’ve been involved in.

Mr. Marcus:
There are lots of different things that I’ve done in the Title IX field, even though that may not be the work that got the greatest fame or notoriety. I’ll start with the enforcement work. So during the prior Trump administration, I was responsible for dealing with some of the truly horrendous sexual harassment and even assault at some colleges and universities and managing the teams of lawyers and investigators who brought important
resolutions at colleges and universities that had permitted much of this to go on. This is really ugly.

We also identified sexual harassment and assault in the public schools, public high schools, as being an issue that was not sufficiently recognized and made very strong demands for change, especially in the Chicago public schools, where newspapers in that city had broken some stories about widespread problems and where our investigators confirmed them. We not only demanded changes in Chicago, but we also created a nationwide initiative that would bring public attention to this issue and that would investigate other schools around the country.

We also adopted the first regulations fully implementing not just Title IX, but also specifically sexual harassment issues under Title IX to make sure that on the one hand those people, often girls and women, who alleged
various forms of sexual harassment and assault would get a fair hearing, but that due process would be extended to those who were accused of sexual harassment or assault so that we would be able to have a fair determination of what was happening and appropriate punishments in the event of violations. So it was both enforcement and policy.

Mr. Jekielek:
Please help me understand this. On the one hand, we have this situation where there’s some pretty terrible things, for example, happening in the Chicago public school system and probably other places that need to be dealt with. On the other hand, there was kind of this lack of due process.
Where are we erring? Are we erring on the side of being overly permissive or are we erring on the side of, you know, not giving people a chance to defend themselves against accusations?

Mr. Marcus:
Prior to the Trump administration, we were just erring. Often it was against the respondents or defendants or accused, but it happened in both ways. The fact is that when you don’t have a fair process for gaining the truth, you’ll never know which way it was. And we shouldn’t say that we are trying to tilt the scale to help the accuser or the accused. And if someone has been hurting someone else in ways that violate school rules or federal laws, they should be held accountable. If they’re committing a crime, they should be prosecuted. They should be treated accordingly.

We shouldn’t be saying, let’s be harder on one side than the other. We should be saying, let’s find the truth. Let’s follow the evidence where it goes. Let’s make sure that everyone has appropriate protection of their rights and let things proceed as they may. In a sense, this is about law and order. It’s about making sure that the innocent are protected, that the guilty are punished, and those who have been victimized are finding justice through the system.

Mr. Jekielek:
At the beginning of our interview, you described some different scenarios. If the Department of Education were to be eliminated, what should happen to this Office for Civil Rights? In your mind, what would be the best way to approach that from your experience?

Mr. Marcus:
The question is how the American people can best be served. That’s families and students. The goal shouldn’t be to preserve the jobs of bureaucrats. The goal shouldn’t be to preserve the status quo. We should ask how we can best serve students and their families.

Mr. Jekielek:
To prevent discrimination, basically. Is that what you’re saying?

Mr. Marcus:
It’s one aspect of it. I think it’s a general issue with respect to questions about what to do with the Department of Education, but it applies to OCR and civil rights as well. There are big questions that have to be asked about how you close the department, and then depending on how the pieces are moving or closing or being sent back to the states, different ramifications
will unfold for what is best for OCR. The notion with OCR is to make sure that taxpayers are not put in a position where their money is being used to
support discrimination and unequal treatment. How that can best be done really should fit in with the priorities for what we’re doing with education programs, whether that’s being done by the federal government, by the states, by local government, or by other educational entities.

Mr. Jekielek:
What other structures exist to deal with these questions, right? You’re getting 20,000 complaints a year at this office that are being handled.
What other structures exist in America? Does every state have its own version of this that could be harnessed? How does that work?

Mr. Marcus:
Within the federal government, there’s also the Department of Justice. And we could ask the question when it comes to campus antisemitism, where has the Department of Justice been? Why haven’t we seen significant Department of Justice investigations? There was something involving a Cornell student who threatened murder, but other than that, we weren’t seeing that sort of action. So it’s not just OCR.

The DOJ has a role to play, even if it hasn’t been playing it lately. There are also, yes, in some parts of the country, state agencies that might have similar jurisdiction. Some of them have programs that are similar to OCR, some not. It’s really different from state to state. There are also human rights commissions in various localities at a municipal level as well as at the state level. And then there are accreditation boards and other entities that keep an eye on these issues. There are actually a very large number of entities, public and private, that keep an eye on anti-discrimination issues.

Mr. Jekielek:
There are a lot of options that could be explored.
Mr. Marcus:
Yes, absolutely. It’s not as if we have no choice but to maintain a department of education that is so heavily criticized. There are lots of different ways to close it down and lots of ways to ensure equal treatment for students in a world in which we have moved beyond the education department.

Mr. Jekielek:
There have been prominent people suggesting that the Civil Rights Act might be dispensed with altogether. How do you respond to that?

Mr. Marcus:
We probably have too many laws in this country, but also too much discrimination. It’s probably appropriate for each incoming Congress to ask not just what new laws can we pass, but also what old laws can we rescind.
On a list of statutes that Congress should consider rescinding, it seems to me the Civil Rights Act is probably relatively low on that list.

Some conservatives have criticized the Civil Rights Act, but I think it’s still fairly small in the number of people who’ve criticized it. And oftentimes, those conservatives who’ve criticized the Civil Rights Act might not realize that in cases like the Harvard Affirmative Action case, it was the Civil Rights Act under which Harvard’s affirmative action plan was considered to be unlawful.

For those conservatives who are aware that DEI is sometimes discriminatory, that racial preferences are sometimes discriminatory, that some of the ways that conservatives are treated are sometimes discriminatory, we need to realize that Title VI is one of the ways in which we ensure that in our schools, colleges, and universities, we are not tolerating discrimination on the basis of race, color, or national origin,
including not only discrimination against marginalized or disadvantaged minorities, but actually discrimination against anyone.

Mr. Jekielek:
Kenneth, this has been a fascinating interview. A final thought as we finish up?

Mr. Marcus:
2024 is an important year for civil rights in a lot of different ways. Let me just take campus anti-Semitism. The Biden administration has promised now for its entire four years to issue a regulation that administers the Trump executive order on combating anti-Semitism. It missed its first self-imposed deadline, which was about three years ago, and gave itself a new self-imposed deadline, which it missed, and it missed another as well. The current self-imposed deadline is December of 2024. I don’t know many people who believe that they’re actually going to meet that.

The Trump executive order would in a sense be codified by the Anti-Semitism Awareness Act, which has been passed by the House but which is now bottled up in the Senate. It is something of a mystery why we’re not seeing action from Senate leadership on this bill. There are lots of different ways that we can address campus anti-Semitism. Some of them could be addressed even during this lame duck period during the waning days of 2024. Others will await the new administration.

I believe that the incoming Trump administration will act in a forceful and muscular way to address the various forms of discrimination that President Trump has identified throughout the campaign. I think that that’s very good. I think it’s very important. We don’t need to wait for it to happen to start taking actions locally in our communities and around the country. But to the extent that a problem remains when President Trump is inaugurated, I think we will see strong action by the incoming administration.

Mr. Jekielek:
Kenneth Marcus, it’s such a pleasure to have you on the show.

Mr. Marcus:
The pleasure is mine. Thank you.