A Senate committee voted Thursday to advance the nomination of Kenneth Marcus for the head of the Office for Civil Rights within the U.S. Department of Education, despite opposition from civil rights groups. The Health Education Labor and Pensions (HELP) committee voted along party lines. Next, his nomination will go to the full Senate for a vote.
The Leadership Conference on Civil and Human Rights, a coalition of more than 200 organizations with civil rights missions wrote a letter to senators opposing the nomination. In the letter, the coalition mentions a moment during his HELP committee hearing in December, when Sen. Patty Murray (D-WA) asked Marcus to name a single example of something President Trump said on the issue of women’s rights or civil rights that he disagreed with. He said he couldn’t say.
The coalition wrote:
Whether this exchange reflects Mr. Marcus’ own support for the president’s statements regarding White supremacists and his attacks on marginalized American communities, or Mr. Marcus’ unwillingness to offer a critique even when he disagrees, Mr. Marcus only reinforced his unsuitability to lead the Office for Civil Rights and protect students from discrimination.
The Office for Civil Rights is responsible for protecting students from discrimination. For example, it investigates complaints that schools are unfairly disciplining students with disabilities. Marcus’ record doesn’t inspire confidence in his ability to lead this work, civil rights groups say.
Marcus has argued against considering 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, and has opposed affirmative action and equal opportunity initiatives. Marcus founded the Brandeis Center in 2011, and in 2012, the Brandeis Center filed an amicus brief opposing race conscious admissions in the Fisher v. University of Texas at Austin case.
During the December hearing, Sen. Chris Murphy (D-CT) asked Marcus what he thought about racial disparities in student discipline, such as black students facing harsh discipline at much higher rates than white students. Marcus answered:
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.
Murphy spoke at a Center for American Progress event on student discipline practices on Wednesday and said Marcus’ explanation was unsatisfactory.
“Marcus would not concede that this was actionable by the department. All he said was that it would warrant tough questions,” Murphy said. “There is no satisfactory answer to any tough questions about why black students would be suspended at five times the rate of white students for the exact same behavior. That disparity is prima facie evidence of discrimination. There is no way a school district can explain that away.”
During the hearing, Marcus also said he supports the department’s decision to rescind 2011 guidance on campus sexual assault, a move that has been fiercely opposed by survivors of sexual violence. When he was the staff director of the U.S. Commission on Civil Rights, Marcus reportedly opposed the idea of expanding the commission’s scope to investigate human rights violations against the LGBTQ community.
The ACLU wrote to the commission in 2007 that it was “troubled” by reports that it failed to investigate serious allegations of civil rights abuses, including the allegation that black neighborhoods in Ohio didn’t have enough voting machines in the 2004 election.
At his confirmation hearing, there were signs of opposition from Palestinian rights groups, which say his fight against anti-Semitism on college campuses has conflated criticism of Israel with anti-Semitic statements. Protesters from National Students for Justice in Palestine attended the hearing in opposition to his nomination. Palestine Legal staff attorney Rahul Saksena said in a statement following the advancement of this nomination, “Marcus has pioneered a legal strategy of abusing civil rights laws to chill the speech activities and violate the civil rights of students who advocate for Palestinian rights.”
Democrats and civil rights advocates are already concerned about the Office for Civil Rights. Last November, the Associated Press reported on education department documents that showed the department is considering narrowing the scope of its civil rights work. The Obama administration considered whether issues in individual complaints were connected to systemic problems, but new proposed changes in guidelines ditched the word “systemic.” President Trump’s proposed budget last year also cut 8 percent of OCR staff. Under the Trump administration, OCR has dismissed more discrimination cases, Politico reported in August. In the first two months since Acting Assistant Secretary for Civil Rights Candice Jackson began her role at OCR, it closed more than 1,500 complaints of discrimination and dismissed 900 complaints.