Jan. 27, 2025 - Epoch Times
23:20
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| Despite decades of a U.S. Department of Education, we're not doing any better in educating our students. | |
| If anything, we're now doing worse. | |
| As part of our special series on the U.S. presidential transition period, I'm sitting down with Kenneth L. Marcus, Assistant Secretary of Education for Civil Rights in the last Trump administration. | |
| He's the founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. | |
| I think the question is how... | |
| The American people can best be served. | |
| The goal shouldn't be to preserve jobs of bureaucrats. | |
| The goal shouldn't be to preserve the status quo. | |
| We should ask how can we best serve students and their families. | |
| 2024 is an important year for... | |
| This is American Thought Leaders, and I'm Jan Jekielek. | |
| Kenneth Marcus, such a pleasure to have you on American Thought Leaders. | |
| Pleasure is mine. | |
| Good to be with you. | |
| So, Ken, you ran the Office of Civil Rights in the Department of Education. | |
| You've investigated thousands of cases. | |
| Why don't you tell me what does the Office of Civil Rights do? | |
| Sure, I'd be happy to. | |
| It's called OCR, the U.S. Department of Education's Office for Civil Rights, and it addresses discrimination on the basis of race, color, national origin, age, sex, discrimination, even certain patriotic youth organizations. | |
| And it does so to ensure that federal funds are not used by schools, colleges, or universities in ways that facilitate discrimination against minority groups. | |
| And how important is this, the function of this department, in your view, sort of in retrospect, having been deep in it? | |
| It is a... | |
| Agency that affects students and families around the country. | |
| Anyone who's ever been a student in a public elementary or secondary school or college or university is protected in some sense by this agency. | |
| When it acts well, it protects vulnerable populations against discrimination and harassment. | |
| When it acts badly, it can facilitate other sorts of problems like the so-called kangaroo courts in colleges and universities under Sexual harassment or assault cases. | |
| It's a fairly big agency for one that some people have never heard of. | |
| This past year, reportedly, it had 20,000 complaints from around the country, ranging from race discrimination to language discrimination issues to disability cases and anti-Semitism cases, which is a subject that I've worked on for many years. | |
| There's been discussion, actually, of dismantling the Department of Education entirely. | |
| So, what would be the impact? | |
| Presumably, this office would also disappear. | |
| What would be the impact of that? | |
| Well, if the department is closed, as President Trump has supported, and as I personally think is a good idea, it could be closed in lots of different ways. | |
| Under some proposals, OCR remains... | |
| An agency but is moved to another department like the Department of Justice. | |
| In other permutations, it might be changed in various ways or reduced. | |
| I haven't yet seen a proposal under which it's eliminated altogether. | |
| Depending on how it's addressed, it might be the same or it could even be better. | |
| For example... | |
| If it handles fewer cases but those cases it does handle are addressed not through the administrative state but through the courts in a way that might have more impact on the most serious cases. | |
| Give me an example of where the agency functions well according to how you just described it. | |
| So I would say that during the Trump administration under the Trump In the executive order on combating anti-Semitism, the agency sent a strong signal that institutions can't use double standards and that they need to address discrimination against Jewish students, the same as discrimination against other sorts of groups. | |
| There have been other ways in which it's acted well. | |
| During the George W. Bush administration, I had the honor of overseeing an enforcement initiative that addressed The | |
| case that you described under George W. Bush, that's where students were being You know, basically students who were fully functional, but just, I guess, illiterate, were being classified as having special needs or something like this? | |
| So, for those of us who remember the George W. Bush administration, you might recall that President Bush was very big on reading issues and on providing research-based reading instruction in the public schools, as opposed to some of the more politicized approaches to reading that weren't working. | |
| Now, civil rights... | |
| Agencies don't teach people how to read, but what we were finding is that there were some schools where inappropriate and ineffective reading programs were leading to high illiteracy rates disproportionately among racial and ethnic groups. | |
| Some of those racial and ethnic groups who were not being properly taught on reading were then In some ways, injured twice, first by not getting the best kind of reading instruction, and then they were misidentified as being either mildly mentally retarded in some cases or as otherwise mentally disabled in ways that just weren't true. | |
| And because of that, they were denied educational benefits that were appropriate. | |
| The problem wasn't with the kids. | |
| The kids were fine. | |
| The problem was with the grown-ups who were miseducating them, leaving them uneducated, and then giving up on them, thinking that they couldn't be taught simply because they were being taught badly, and then pushed aside into a special education program that was just wrong for them. | |
| My sense is that this sort of situation has actually only gotten worse since those years. | |
| What's your view? | |
| Some of the data shows improvement, but schools vary. | |
| Certainly during COVID, closure of the schools led to all sorts of problems, especially among those people who were... | |
| Perhaps poorer or in certain minority groups. | |
| There is a whole generation that is just now recovering from not just COVID, but from the rush to close the schools down in the wake of COVID. Beyond that, despite decades of a U.S. Department of Education. | |
| We're not doing any better in educating our students. | |
| If anything, we're now doing worse. | |
| We're denying an appropriate education and denying choices that families should have as to how to educate their kids. | |
| So give me an example then when the department doesn't function well, again, per your description earlier. | |
| Well, for example, when it misuses a so-called disparate impact approach to civil rights. | |
| That's a notion... | |
| At least as it's often misused, that says we shouldn't just ask whether students are treated differently based on their race or national origin. | |
| We should also ask, apart from intentional discrimination, whether there are neutral approaches to education that have an adverse impact on some groups. | |
| So if you find out, and this is always the case, that approaches have statistical... | |
| Deviations. | |
| That it might be that in a particular school, African Americans might be suspended more often than, let's say, Asian Americans. | |
| If you find out significant statistical disparities, it's possible. | |
| That there is intentional discrimination at work, and it's worth investigating to find out whether students are being intentionally treated differently based on their race. | |
| But if you don't bother to do that, and you just say, it's bad to have statistical discrepancies, we won't suspend. | |
| African Americans until we have an equal percentage of Asian Americans who are also treated in that way. | |
| There are all sorts of problems that arise from that, and some of the problems involve principals and teachers who are just unwilling to discipline students who are causing problems. | |
| And that leads to safety issues for everyone, including often minorities, within the public schools. | |
| Yeah, I know. | |
| I'm remembering there was one particular, you know, student mass shooting situation, which was a student that just had kind of repeatedly, there had been repeated attempts at disciplining it, repeated attempts at solving, but just kind of kept falling through the cracks, presumably because of this sort of an approach. | |
| Of course, when there is a mass shooting, that's an extreme case. | |
| And then there is often a debate within the public as to the cause of that shooting, including whether it is part of a general problem of students made unsafe as a result of a misuse of civil rights laws. | |
| Regardless of whether a particular case you can actually come to the ultimate truth or not, it really is the fact that across the board we have to worry about educators that are focused less on education and more on keeping the federal bureaucrats and federal enforcers at bay in ways that could tie their hands, reduce their judgment, and ultimately make the students less safe. | |
| Ken, we're going to take a quick break right now. | |
| And we'll be right back. | |
| And we're back with Kenneth Marcus, chairman of the Louis D. Brandeis Center for Human Rights Under Law. | |
| So you mentioned this term, disparate impact, and that makes me think of diversity, equity, and inclusion, or DEI initiatives. | |
| So how big has that, I guess, approach to dealing with perceived harms been in this OCR agency? | |
| It's become very significant and problematic. | |
| Now, listen, when people talk about DEI or diversity, equity, and inclusion, they mean different things. | |
| Those people who support DEI are sometimes talking about compliance with anti-discrimination law. | |
| That's a good thing. | |
| Generally speaking, if there are disabled students who lack access to the bathrooms, for goodness sake, we should give them access. | |
| And that is sometimes a matter of compliance with the ADA, the disabilities law. | |
| If there are girls who are treated unequally in their schooling, we should... | |
| Address that. | |
| On the other hand, what we're really talking about, I think, when we criticize DEI, is a specific approach to anti-discrimination, which has very quickly, in the last few years, become something of a dominant orthodoxy, which is difficult even to question. | |
| Without being challenged. | |
| Why are you questioning DEI? What are your motives? | |
| But the fact is that DEI often reduces the complexity of human behavior to binary oppositions. | |
| It asks everyone, are you an oppressor or are you an oppressed? | |
| Are you a white supremacist or are you BIPOC? Black, indigenous, and persons of colors. | |
| When you divide the world that way, you pit people against each other. | |
| And it can lead to stereotypes, racial stereotypes, that are harmful, that create social tensions, that create divisions, and sometimes lead to exactly the kinds of racial discrimination that they're intended to undermine. | |
| Oftentimes we talk to Jewish students in the schools and ask them, does the DEI office help you? | |
| Occasionally they'll say yes. | |
| Mostly they'll say no. | |
| Sometimes they'll say it makes things worse. | |
| It makes things worse by treating us as members of a hyper-white, privileged group that don't deserve the same treatment as everyone else. | |
| Well, it seems to me that that is the opposite of what our civil rights laws are intended to promote. | |
| What they're intended to promote, I believe, is equal treatment and... | |
| Unity, not different treatment and divisiveness. | |
| Well, so obviously this makes me think of the work that you've done around Title VI. So why don't we actually start with you explaining what Title VI is and the work that you did related to it. | |
| Sure. | |
| Title VI is part of the Civil Rights Act of 1964, which you know is the first major civil rights statute created during the civil rights period. | |
| There had been a few smaller acts passed during the 1950s. | |
| But really, since the 19th century, 14th Amendment and the civil rights laws of the 19th century, this was the first statute that was intended to address racial segregation in the public schools and other forms of serious discrimination. | |
| The notion was... | |
| We will tell schools, colleges, universities, and any other institution that receives federal funds that if you have programs and activities that are federally funded, you may not discriminate against your recipients, your beneficiaries, on the basis of race. | |
| The Civil Rights Act of 1964 was used in order to try to break down the racial... | |
| Segregation that continued to persist in many parts of the country even years after Brown v. | |
| Board of Education, which had held that racially segregated schools are unconstitutional. | |
| That same statute continues to be used not just to address segregation, but to address other forms of discrimination and harassment on the basis of race, color, or national origin. | |
| I think it's colloquially called the Marcus Doctrine. | |
| Sure. | |
| That term is used. | |
| It's, I guess, flattering to me. | |
| It's used to describe the notion, which I had developed about 20 years ago during the George W. Bush administration, that if you face Discrimination based on your membership in a group that has a shared ethnic or racial or ancestral background, | |
| but also a shared religion or faith, you will receive from the government the same degree of protection as if you shared an ethnic or racial or ancestral background and no religion. | |
| In other words, the federal government couldn't treat groups. | |
| Differently or worse, just because they shared a common faith. | |
| The agency, OCR, that we've been discussing, had been for many years declining to move forward on cases involving Jews, Sikhs, and members of other, what you might call ethno-religious groups. | |
| Groups that have both a religion, but also a shared origin in a particular part of the world. | |
| The notion in this doctrine that we developed in the Bush administration, but that was then later elevated by the Trump executive order on combating anti-Semitism. | |
| The notion is that people need to be treated equally and that an agency that is charged with protecting students from discrimination on the basis of race, color, or national origin should do so even with respect to groups that have those characteristics, but also a shared faith. | |
| Well, yeah. | |
| So actually, let's talk about this Trump executive order. | |
| What exactly did it say? | |
| I've heard a lot of different discussion around this. | |
| On the one side, criticism. | |
| On the other side, a lot of praise. | |
| How do you view it? | |
| I think it was the most important policy advance that we have seen in fighting campus anti-Semitism in the United States over the last several decades. | |
| I would say over my lifetime there has been nothing as strong as the Trump executive order on combating anti-Semitism. | |
| It has two pieces to it. | |
| The first piece codifies this notion that we've been describing that Jewish Americans And other ethno-religious groups, but in particular was focused on Jewish Americans, are protected by Title VI because of shared ethnic or ancestral background, even though Jews are also a religion, and religion per se is not covered by Title VI. That was the first piece, that Jewish Americans should be treated the same as other groups. | |
| The second piece was to say, if federal agencies like OCR... That are administering Title VI of the Civil Rights Act of 1964 if they receive an allegation of anti-Semitism. | |
| And they're not clear on whether it's anti-Semitism or not anti-Semitism. | |
| And it doesn't involve protected speech under the First Amendment. | |
| But it rises to the level that if it is discriminatory, it's sufficiently severe or pervasive that it would... | |
| Create a violation of Title VI. In order to figure out is this anti-Semitism or not, agency officials should consider the most widely adopted definition of anti-Semitism It's the so-called IRA, or International Holocaust Remembrance Alliance, definition of anti-Semitism. | |
| It's a little bit too long to try to recite from memory, but it is the definition that has now been embraced by two-thirds of our states, also by dozens of countries around the world. | |
| It is an international standard. | |
| It is the only definition that has been embraced and adopted in this way. | |
| And the Biden administration has not rescinded it. | |
| So by using this Trump executive order, agency officials provide transparency to how they're looking at anti-Semitism. | |
| And they make it clear that when there's a close case, they are going to use the same approach, the same standards that's used by most of our states and most of our allies abroad. | |
| How do you explain what's been happening on campuses since basically since October 7th? - Yeah. | |
| Well, it's been horrific, hasn't it? | |
| And on October 7, Hamas invaded Israel, engaged in widespread systemic slaughter of Israeli Jews and others, engaged in widespread rape of large numbers of women, tortured many people, kidnapped others. | |
| Desecrated corpses. | |
| Did all of this in a mass-coordinated effort that is one of the most significant atrocities that we've seen in decades. | |
| Certainly the greatest mass murder of Jews since the Holocaust. | |
| We did not know on October 7 everything that we now know, but we knew enough. | |
| We knew that there were the murders. | |
| We knew about torture. | |
| We had evidence of the rape. | |
| And yet, immediately, After that happened, and before Israeli Defense Forces entered Gaza, there were, in streets of major cities around the world, and on campuses of dozens of universities around the United States, widespread protests, not against the torture, not against the rape, not against the murder, but in favor. | |
| And against the victims. | |
| I don't think we have ever seen this. | |
| I don't think that we have seen large-scale protests aligned with a terrorist organization. | |
| That had just engaged in mass atrocities. | |
| Over the coming weeks and months, others joined these protests, and some claimed to be protesting against the Israeli Defense Force's actions in response to the atrocities. | |
| And yet we cannot forget, we cannot deny, that this movement began immediately and in a large-scale way in defense of massive human rights violations. | |
| This should tell us something. | |
| About what's wrong right now on college campuses. | |
| Well, Kenneth, this has been a fascinating interview. | |
| A final thought as we finish up? | |
| 2024 is an important year for civil rights in a lot of different ways. | |
| Let me just take campus antisemitism. | |
| The Biden administration has promised now for its entire four years to issue a regulation that administers the Trump executive order on combating antisemitism. | |
| It missed its first self-imposed deadline, which was about three years ago, and gave itself a new self-imposed deadline, which it missed, and it missed another as well. | |
| The current self-imposed deadline is December of 2024. I don't know many people who believe that they're actually going to meet that. | |
| I believe that the incoming Trump administration will act in a forceful and muscular way to address the various forms of discrimination that President Trump has identified throughout the campaign. | |
| I think that that's very good. | |
| I think it's very important. | |
| We don't need to wait for it to happen to start taking actions locally in our communities and around the country. | |
| But to the extent that a problem remains when President Trump is inaugurated, I think we will see strong action by the incoming administration. | |
| Well, Kenneth Marcus, it's such a pleasure to have had you on. | |
| Pleasure is mine. | |
| Thank you. | |
| Thank you all for joining Kenneth Marcus and me on this episode of American Thought Leaders. |
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