In a move to chill speech critical of Israel, a former Israel lobbyist who is now the Trump administration’s top civil rights enforcer has said that the Department of Education will apply standards that conflate criticism of Israel and Zionism with anti-Jewish bigotry.
The announcement was made without public or congressional notification or debate, and reportedly took current and former investigators in the education department “by surprise.”
Kenneth Marcus, who was recently confirmed to lead the Department of Education’s Office for Civil Rights under Secretary of Education Betsy DeVos, also re-opened a dismissed complaint against Rutgers University made by the Zionist Organization of America.
While leveling charges of anti-Semitism against supporters of Palestinian rights, the ZOA has openly aligned itself with unabashed anti-Semites and white supremacists such as former Trump aides Steve Bannon and Sebastian Gorka.
In a 27 August letter obtained by The New York Times, Marcus notified the ZOA that he would be using the “State Department definition” of anti-Semitism to define Judaism as an ethnic origin rather than just a religion in order to charge Palestine rights activists with ethnic discrimination.
“In effect, Arab-American activists say, the government is declaring the Palestinian cause anti-Semitic,” The New York Times stated.
“Marcus is sending a clear signal that attacking free speech for Palestinian rights is at the top of his agenda at [the Office for Civil Rights],” said Dima Khalidi, director of the civil rights group Palestine Legal.
She called Marcus’ move a “perverse use of government resources” especially at a time when white supremacist attacks are rampant on college campuses.
But it is substantially the same as the so-called IHRA definition of anti-Semitism that Israel lobby groups pressured the UK’s Labour Party to adopt as part of their campaign against leader Jeremy Corbyn and to curtail expressions of support for Palestinian rights.
The bill has not yet been put up to a vote, but with his announcement to the Zionist Organization of America, Marcus has circumvented Congress and adopted the definition anyway.
“For Marcus to make such a controversial and corrosive policy decision with no public notice raises serious questions about open government and the influence of lobbying groups,” Palestine Legal stated.
Notably, the lead author of the controversial anti-Semitism definition, former American Jewish Committee executive Kenneth Stern, has strongly opposed efforts to enshrine it in legislation, arguing that its adoption would be an unconstitutional infringement on free speech.
Before his appointment to the Department of Education, Marcus led the Louis D. Brandeis Center for Human Rights Under Law, an Israel lawfare group unaffiliated with Brandeis University.
He had pioneered the strategy of filing complaints to the Department of Education under Title VI of the 1964 Civil Rights Act, claiming that universities fail to protect Jewish students by not cracking down on Palestine solidarity activism.
Israel lobby groups are hailing Marcus’ announcement. The Office for Civil Rights “for the first time is going to be using the State Department’s definition of anti-Semitism when it is accepting and deciding Title VI cases,” Susan Tuchman, director of the ZOA’s Center for Law and Justice, told the JTA news agency.
In re-opening the Rutgers complaint – similar to ones his Brandeis Center filed with the Department of Education – Marcus is fulfilling the worst fears of civil rights defenders that he would carry out the agenda of Israel lobby organizations.
The Zionist Organization of America’s 2011 complaint against Rutgers alleged that organizers of a campus event that same year – which brought students together to share stories of survivors of the Holocaust and the Palestinian Nakba – levied a fee only against Jewish attendees, a claim that investigators could not prove after a years-long investigation, according to Palestine Legal.
It was thrown out by the Obama administration in 2014, citing a lack of evidence. The Office for Civil Rights also stated that other incidents contained in the complaint against Rutgers were protected free speech.
Similar complaints Marcus helped file against the University of California were tossed out the previous year, dealing a significant blow to his strategy.
Palestine Legal’s Khalidi has previously warned that with Marcus now leading the Office for Civil Rights, he would “do from the inside of the Department of Education what he has failed to do from the outside.”
Investigating speech at CUNY
Meanwhile, a bizarre investigation against a student at the City University of New York (CUNY) instigated on behalf of Israel supporters was closed after the university admitted there was “no basis” for the complaint.
The complaint sought to punish doctoral student Rafael Mutis “for comments critical of Israel made in response to an email advertising a Fulbright fellowship in Israel on a student listserv,” Palestine Legal noted.
Mutis commented that the Israel program was “some sick Zionist propaganda” and asked rhetorically if it was “a Trump initiative.”
“Maybe there are post docs in Palestine? Free free Palestine!” he added.
An Israel supporter complained to the university administration that she had suffered discrimination, which sparked the lengthy investigation.
Israel lobby groups have long encouraged student supporters to claim discrimination and emotional distress in response to speech critical of Israel.
In a process New York Magazine described as “Kafkaesque,” the university could not point to any rules that Mutis had broken, and conceded there were no pending charges against him, but demanded that he attend a meeting to respond to “allegations” – allegations that administrators could not produce.
Palestine Legal said that the investigation contributed to a chilling effect on student speech.
In an email, Palestine Legal staff attorney Radhika Sainath told CUNY administrators that “without factual allegations, there was nothing to respond to” and that the university had not “alleged any wrongdoing.”
Sainath warned the university that “there is no constitutionally sound justification” for investigating Mutis and demanded that the complaint be dismissed.
After nearly three months of its vague investigation, CUNY did dismiss the complaint, confirming there was no basis for any charges.
Sainath stated that emails supporting Palestinian rights “are protected by the First Amendment” and admonished the university’s process.
“There was no need for such a prolonged investigation – the complaint should’ve been dismissed on its face,” she added.
“I’m glad CUNY agreed that I have the right to say that Israel is not a democracy and that it doesn’t respect the rights of Palestinians,” Mutis said.