Trump's Pick for Office for Civil Rights Is Democrats' Best Bet
After one year in office, Secretary of Education Betsy DeVos is still running a skeleton crew at the Department of Education. The Senate confirmation process for her political appointees has stalled, and Senate Democrats sense blood in the water around the nominee to head the Office for Civil Rights (OCR), Kenneth Marcus.
Given the hot-button issues affected by that office, from Title IX to school discipline, it is plausible that Democrats could present a united front and, with the help of just two Republican defectors, sink Marcus’s nomination. That would be rather short sighted. He is the best nominee that Democrats could hope for under the Trump administration.
Liberals and conservatives have fundamentally different visions of the federal role in civil rights enforcement. For liberals, it’s about expanding the definition of rights and then enforcing new norms. Having coerced schools and colleges to comply with requirements found nowhere in the law, former OCR Assistant Secretary Catherine Lhamon expressed no second thoughts. She explained, “We were working at breakneck speed trying to achieve as much justice as was possible with the time that we had.” To liberals, this may sound quite inspiring.
But to conservatives, it sounds rather like tyranny. To them, the federal role is about defending the rights of individuals and groups as defined by law. Declaring progressive values to be “rights” by stretching statutes beyond the faintest semblance of legislative intent, then threatening to cut federal funding if schools don’t comply, simply isn’t the course constitutional republics are supposed to take. Conservatives believe that the Obama administration transformed OCR from a last line of defense into a forward operating base to advance the Left’s policy and culture war agenda.
The conservative mind is split on what should come next. Principled moderates believe that OCR ought to be restored to its traditional role. But aggressive populists look at what the Obama administration did and think, “Now, it should be our turn.”
Everything about Kenneth Marcus’s record suggests that he is in the former camp. When Marcus led OCR under the Bush administration, he certainly did not use it to advance an ideological agenda. No public statement since, nor anything he said in his confirmation hearing, suggests that he intends to lead a culture war counter-offensive.
On Title IX, Marcus supported DeVos’s decision to rescind the “Dear Colleague” letter outlining the Obama administration’s guidance for handling campus sexual assault investigations. He agreed with DeVos that a better balance needed to be struck to ensure the rights of the accused were being upheld. But that’s hardly a right-wing take: Supreme Court Justice Ruth Bader Ginsberg has said the same thing. Absolutely nothing in his hearing suggested that he intends to leverage OCR to threaten or coerce schools back into the status quo ante.
Marcus indicated at his hearing that he still sees a role for disparate impact in reviewing K–12 school discipline practices. The Obama administration’s “Dear Colleague” letter told school districts that traditional disciplinary rules, even if fair on their face and in application, could constitute “unlawful discrimination” if students of different races broke them at different rates. School districts would be, and were, investigated on the basis of statistics and forced to overhaul their policies at great cost to school order and safety. Conservatives want OCR to drop disparate impact altogether and investigate solely on the basis of individual complaints. Marcus’s comments suggest he might not go that far. Certainly, there’s no indication that he intends to coerce districts to adopt stricter discipline codes.
Some conservatives would love to see the federal government engage in a free speech counter-offensive. But it doesn’t seem like Marcus is their guy. He has devoted his professional life to combating anti-Semitism as the president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law. Given that the First Amendment is often invoked to defend anti-Semitic speech, it seems unlikely that Marcus would advance an absolutist free speech agenda.
If anything, Democrats ought to take heart from Marcus’s activism. It suggests that even though Marcus will not continue the Obama administration’s expansive approach, his instinct would still be to err — within the letter of the law — on the side of active protection.
If Democrats scuttle Marcus’s nomination, there is no guarantee that his replacement will be of similar temperament. The Trump administration has a tendency to lash out when injured. The prospect of a populist culture warrior assuming command of OCR is certainly interesting. But that’s what the editors of Breitbart, not Democrats in the Senate, would want to see.
Max Eden is a senior fellow at the Manhattan Institute.