Editor’s Note: This conversation is excerpted from a panel discussion, “Enriching the U.S.-Israel Alliance by Combating Antisemitism,” at the Heritage Foundation in Washington, DC on October 23, 2023, even before the full weight of events was felt.
Kenneth L. Marcus is the founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. He is also a distinguished senior fellow at the Center for Liberty and Law at George Mason University Law School and formerly Assistant Secretary for Civil Rights at the US Department of Education and has served as Staff Director of the United States Commission on Civil Rights.
Ellie Cohanim is a broadcast journalist who served as Deputy Special Envoy to Monitor and Combat Anti-Semitism at the US Department of State. She had previously been a Special Correspondent and Senior Vice President for Jewish Broadcasting Service (JBS) and an Executive at Yeshiva University, the Jewish Theological Seminary of America, and UJA Federation of New York.
Ellie Cohanim: To begin our conversation allow me to share context: Jews around the world are in a state of shock and horror. On October 7 while Jewish families in Israel celebrated the Simchat Torah holiday, Hamas infiltrated Jewish communities of southern Israel, massacred 1,200 people, wounded nearly 5,000 others, and committed atrocities not seen since the Holocaust. Israel says that 80 percent of the 1,200 murdered that day were tortured first. Hamas kidnapped young women, toddlers, babies, elderly people, and seems to have unleashed the forces of hate across the globe on that day.
Ken, not only did we witness these horrific crimes, these atrocities committed against the Jewish people—but before Israel had even responded, before Israelis had even the opportunity to identify, never mind bury their dead—we saw students across US college campuses come out and protest, and rally, in support of Hamas. What is happening on our college campuses? There is something called the Marcus Doctrine, which is attributed to you. Can you also tell us about that and how it ties into what we are experiencing today?
Ken Marcus: I have been fighting campus antisemitism for more than 20 years. It gets worse and worse, but never have we experienced anything like the past couple of weeks. It has been surging over the last few years, but this really has been something unlike anything we saw before.
Think about what’s happening now. What we just saw, and as you described, was mass torture, murder, rape of civilians, burning people alive, decapitation. The immediate response from college campuses in many places was to support the terrorists. In one case, a professor talking about being “exhilarated.” In many cases, student groups arguing that people should “join the resistance,” meaning the genocidal attack on Jewish people.
This goes beyond the hostile environments that we have seen over recent years. What we’re experiencing now is a mass phenomenon. Once we see it, we can’t unsee it. University presidents and the public now must face the fact that on our college campuses, something monstrous is developing. We have very substantial movements of pro-Hamas, pro-terrorist, pro-genocidal groups at some of the most important universities in the United States.
Right now, there are university presidents arguing about whether they should or should not issue a “statement.” Those presidents who either don’t issue a statement or want a “both sides” statement are utterly incapable of understanding the moral issues. But even for those who do issue a statement and even a statement with moral clarity, it’s still just a statement!
If you are the president of a university today, you are now aware that for all the millions of dollars you have put into “Diversity, Equity, Inclusion” (DEI), you have created the opposite of DEI. For all that your admissions have done to create a student body that reflects the values you pretend to hold, you have created a student body which is in favor of murder. For all that you say that your curriculum should do more than just provide information or critical thinking, you have curricula that is training pro-terrorist people.
This is beyond “statements.”
We are at a time in which if you are a university president and you have not thought about cleaning house, you shouldn’t be there. It’s not about—“do you issue a statement.” It’s about—do you realize that you are running an institution that is fundamentally and totally wrongheaded in its approach and that is sending this country in the wrong direction? Even a good statement isn’t enough.
You asked about what I call the Title VI Policy—and what other people may call the Marcus Doctrine. That is the notion that Title VI of the Civil Rights Act of 1964, which prohibits certain forms of race, color, or national origin discrimination in the public schools, and in colleges and universities, but that doesn’t mention religion, nevertheless protects Jews and certain other groups that have ethnic backgrounds as well as religious ones. It is based on the idea that a group that has ethnic or ancestral characteristics should not lose the protections that they would have, if they did not have a shared common faith.
The Biden administration, to its credit, has expanded the use of the Marcus Doctrine to include not only the Department of Education—whose civil rights agency I headed—and the Department of Justice, but also eight other agencies. So, there are now 10 cabinet level agencies committed to the policy. I’m pleased with this. This is something that’s taken some 20 years to establish, but once we have this notion that these federal agencies are going to deal with antisemitism, are they going to deal with antisemitism? Because the signs aren’t great, the signs really aren’t great. So now they know they have to do something, let’s see them do it.
Cohanim: Let’s talk now for a moment about Students for Justice in Palestine (SJP). The Louis Brandeis Center was leading an effort recently on an SJP campus program they held on October 12, the so-called “National Day of Resistance.” SJP chapters are known for their anti-Israel propaganda, often with inflammatory and combative rhetoric. Can you tell us what happened with SJP and how do we turn this tide of Jew-hate on US campuses?
Marcus: I’ll give you a few examples of what’s happening on the campus and why it is that, respectfully, I agree that President [of the University of Florida] Ben Sasse’s statement was one of the best, maybe the best, but it’s a low bar. I’m not sure that it was good enough for the University of Florida, and it certainly isn’t enough for the universities that are seeing much worse levels of antisemitism. [Editor’s Note: Sasse’s letter read, in part, “We will protect our students and we will protect speech. This is always true: Our Constitution protects the rights of people to make abject idiots of themselves. I also want to be clear about this: We will protect our Jewish students from violence. If anti-Israel protests come, we will absolutely be ready to act if anyone dares to escalate beyond peaceful protest. Speech is protected—violence and vandalism are not.”]
I’ve gotten reports of physical attacks on Jewish students in the wake of the call for “resistance.” And when they use the term “resistance,” they’re using the Hamas term. They’re calling for people to join in a worldwide movement that has reached its culmination—so far—in a pogrom involving torture, rape, and murder. They’re calling for people around the world to join in replicating the atrocities that have already happened.
In the wake of that, we’re seeing physical attacks on Jewish students. We’re seeing vandalism of Jewish institutions. We’re seeing students being followed, being taunted, being harassed in various ways. This is happening all over the place and it’s often supported by faculty members. Seldom are our university administrators really doing very much if anything about it.
Keep this in mind. If you’re thinking about the campus in the same way after October 7 that you did before October 7, you’re not thinking about it right. Prior to that, yes, we were seeing environments made toxic by antisemitic and anti-American ideology. Yes, we were seeing Jewish students who were being harassed, marginalized, and excluded to the extent that Zionism was an integral part of their identity, but what we’re seeing now is university-funded—and in some cases taxpayer-funded—efforts to advance in a conscious and intentional manner, the program and communications agenda of a US State Department-designated terrorist organization.
To be clear, what I’m describing is potentially a felony.
So, if you’re a university president who is not sure whether you should or shouldn’t make a statement, let me say that on many campuses, it’s too late anyhow. Statements are okay in response to statements and people who are simply saying false things. You can then say things that are the truth. If people are saying things that are immoral, you can give a moral example.
But if people are committing assault and vandalism, you can’t just make a statement. If your university’s facilities and resources are being used in a way that intentionally advances the agenda of a terrorist organization, if you aren’t sure whether you are committing a felony, forget about the statement. You need to take much greater actions even than the best of the university presidents are making.
We need to hear very strong messages from university presidents, from attorneys general, from governors that this can’t continue. It’s not a question of political disagreement. It’s not even just a question of bigotry or harassment anymore. Now it’s also a question of whether our public institutions are being used not only to undermine American foreign policy, but potentially to advance terrorism in a way that is federally criminal.
Cohanim: It is hard for us to believe that we have reached this low at our institutions of “higher” learning. Ken, you spoke a bit about a few steps that the Biden administration has taken to combat antisemitism. Do you think it should be doing more, and what kind of initiatives would you recommend?
Marcus: The Biden administration issued a National Strategy on dealing with antisemitism and should be applauded for its breadth and for public attention it brought to the issue. But in terms of substantive work it is doing, I would say that so far it has lagged behind that of the last few administrations. I would also say that there has been a sense from those speaking with people in the Biden administration that they issued their National Strategy and were planning to do nothing more until after the election. I hope no one in the administration has been thinking that since October 7. Because while there are some good things in the National Strategy, it wasn’t sufficient for October 6, and it surely isn’t sufficient for now.
I’ll give you a few examples. The Biden administration has continuously promised to issue a formal regulation that would implement the Trump Executive Order on Combating Antisemitism, and yet continually throughout this administration has delayed doing so. The current deadline, self-imposed by the Biden administration, is December of this year. Notably, they’ve been saying very little bit about it. They haven’t even mentioned it in many months, leaving some to think that they’re not ever going to do it. At a minimum, they should be doing what they promised.
The US Education Department Office for Civil Rights has issued some materials, but when it comes to the anti-Zionist forms of antisemitism, the Department of Education hasn’t even spoken with the same specificity that we’ve even seen from the White House—and at a minimum, they should be able to do that. Now, look at all the campuses at which there is so much antisemitism over the last two weeks; all you need to have is Google and you can see substantial amounts of harassment and “hostile environment,” which the Department of Education is obligated to address. The education department shouldn’t be waiting to get complaints. There should be a nationwide compliance initiative from the Secretary of Education right now—at a minimum—to address those campuses, where obviously there are problems, because they’re all over the blogosphere and the papers.
Audience Question: In the context of “corporate woke-ism,” I’m curious what you think companies should be saying about this? Is this different than coming out and talking about other issues? What would a good response from corporate America look like?
Marcus: Those in the corporate world, especially the human resources world, can look to the Society of Human Resources Managers (SHRM) as a good source of advice. I’ve shared my thoughts with SHRM and they have those thoughts on their website. There are a number of things they should do to begin with; there are things they already should have been doing. A lot of corporations have months to recognize African American, women, Asian, and other workers, but don’t have them for Jewish workers. May is Jewish American History Month. Let them recognize that.
Some of them have employee resource groups (ERGs) for African American and Hispanic and other identity groups but have refused to allow their Jewish workers to create them based on the notion that Jewishness is a religion only. They should be educated on that and provide the same ERG opportunities for Jewish employees as for others.
They should monitor their DEI programs to see whether they’re making things worse, because sometimes that is the case. To the extent that they have education programs on various forms of discrimination, they should make sure that they’re including antisemitism, including those forms of antisemitism that we’re seeing today—which is to say left-wing as well as right-wing antisemitism. To the extent that they made statements about the Ukraine invasion or other world affairs, they should be making them about the Hamas pogrom as well.
To the extent that they make accommodations for other workers who have various sorts of needs, they should consider their Israeli American employees who might be called to duty in Israel and might need some accommodations. They should certainly be making the sorts of statements that they make for others, and they should be considering both antisemitism and Jewish identity in the same way that they treat any other ethnic or racial background.
Question: I’m a Jewish college student and my friends and I have personally experienced antisemitism, specifically by the organization that you mentioned, Students for Justice in Palestine. How can we ensure that Jewish students feel safe in college campuses expressing both their Jewish identity and their Zionist beliefs?
Marcus: To the extent that you or your fellow students have been harassed, certainly talk to the Louis D. Brandeis Center. There are a lot of resources that can help you feel safe. We talk to students every day about that. Of course, there are also other institutions on campus that can support you ranging from Hillel to Chabad and Jewish Studies, but depending on what the issue is, I think the most important thing is that you do not feel alone. If you are facing a problem, there are a lot of organizations here to support you.
Cohanim: Ken Marcus, this has been enlightening. Thank you so much.
