Education nominee is supportive of Betsy DeVos’ rollback of sexual assault guidance

Kenneth Marcus is being considered for the post of head of the Office for Civil Rights.

Kenneth Marcus answers questions from Sen. Chris Murphy (D-CT) on student discipline disparities. CREDIT: U.S. Senate HELP Committee website
Kenneth Marcus answers questions from Sen. Chris Murphy (D-CT) on student discipline disparities. CREDIT: U.S. Senate HELP Committee website

President Donald Trump’s pick to head the Education Department’s Office for Civil Rights, Kenneth Marcus, made it clear at a Senate hearing on Tuesday that he does not support several civil rights protections backed by sexual assault survivor groups, and waffled on a question about disproportionately high suspension rates for Black students.

During the Senate Health Education Labor and Pensions Committee’s hearing for Education and Labor Department officials, Marcus demonstrated a lack of support for Obama-era civil rights priorities several times, including for campus sexual assault protections.

Marcus, who served at the U.S. Commission on Civil Rights under George W. Bush, said he supports the department’s decision to rescind 2011 guidance on campus sexual assault, that he does not support making Title IX investigations public, and that he “couldn’t say” if Trump had said or done anything regarding civil rights and discrimination with which he disagreed.

Advocates for survivors of sexual assault fiercely opposed Secretary of Education Betsy DeVos’ decision in September to rescind Obama-era guidance that clarified the protections sexual assault survivors should be granted under Title IX, the federal civil rights law that prevents sex and gender discrimination in education. The move came after DeVos met with various men’s rights activism groups, including those that downplay the problem of domestic violence. The guidance clarified the protections sexual assault survivors should be granted under Title IX, such as what timeframe qualifies as a prompt investigation and which standard should be used in investigations of complaints. Among the changes under DeVos’ interim guidance, there would be no fixed timeframe, colleges could pursue mediation, which would ask victims to “work it out” with their rapist, and schools can implement a process that allows only the accused to appeal a decision.

During the committee hearing, Sen. Chris Murphy (D-CT) asked Marcus what he thought about racial disparities in student discipline. Marcus responded by attributing these disparities to “paperwork errors”:

Senator, I believe disparities of that size are grounds for concern, but my experience says that one needs to approach each complaint and compliance review with an open mind and a sense of fairness to find what out what the answers are. I have seen what appeared to be inexcusable disparities that were the result of paperwork errors. They just got the numbers wrong.

National data on school discipline and racial disparities released by the Education Department in 2016 clearly show that Black preschool children were 3.6 times more likely than white children to receive one or more out-of-school suspensions. Stanford University research has also shown that teachers may use harsher discipline on a Black student when they misbehave a second time than they would for a white student.

Marcus has also been under fire for what some students call suppression of student speech about Palestinian rights. Protesters from National Students for Justice in Palestine attended the confirmation hearing to send a message about Marcus’ record on free speech issues. People who oppose his nomination say that his fight against anti-Semitism on college campuses conflates criticism of Israel with anti-Semitic statements.

Jewish Voice for Peace released a statement on his appointment, which read, “His tactics dilute the definition of anti-Semitism so much that it becomes useless and have contributed to widespread repression on college campuses, where students and faculty fear studying Palestinian history or advocating for Palestinian rights.”

Marcus’ positions should not come as a big surprise, given his record at OCR during the Bush administration. In 2004, when he was Assistant Secretary for Civil Rights, he was responsible for expanding flexibility for single-sex schools or classes, which the National Women’s Law Center said invited schools to create “separate-and-unequal programs based on pseudoscientific preferences and beliefs.”

Marcus has also written about the law in ways that suggest he may not support enforcement against a type of discrimination, disparate impact, a practice in which a neutral policy can still adversely affect a protected class, such as students of color and students with disabilities. He has also said that a defendant does not need to prove intentional discrimination. In 2014, the Education Department released a Dear Colleague letter on school discipline that mentioned both intentional discrimination and disparate impact. Under disparate impact, the department gave examples of policies imposing mandatory suspension, expulsion, or citation on any student committing a specified offense, such as being insubordinate, and policies that prevent kids involved in the justice system from re-enrolling in school. In November, department officials met with critics of the letter, which suggested they might roll back the 2014 guidance.

In 2009, Marcus authored a paper called, “The War Between Disparate Impact and Equal Protection,” in which he appears to oppose considering disparate impact. In it, Marcus writes that consideration of disparate impact provisions of Title VII of the Civil Rights Act of 1964 could run against the Constitution’s guarantee of equal protection, except when the provision is “narrowly construed.” Marcus mentions Scalia’s opinion on the issue: “As Scalia points out, ‘the war between disparate impact and equal protection will be waged sooner or later … it behooves us to begin thinking about how — and on what terms — to make peace between them.'”