Nominee for DOE civil rights office refuses to protect civil rights

Whether Kenneth Marcus knows it or not, the position he would take on must enforce all civil rights protections and advocate for kids and families no matter their immigration status.

By Rebeca Shackleford, Education Policy Analyst, UnidosUS

Kenneth Marcus
Kenneth Marcus/YouTube

Next week, the Senate will vote to confirm the next assistant secretary for the Office for Civil Rights (OCR) at the U.S. Department of Education. The high-level position focuses on protecting each child’s civil rights in our nation’s public schools.

But during his nomination hearing on Tuesday, nominee Kenneth Marcus wouldn’t commit to protecting undocumented children.




During the hearing, Senator Elizabeth Warren asked Marcus a series of hypotheticals. One was about young undocumented kids. If five-year old students were denied enrollment in kindergarten because they couldn’t provide proof of citizenship, would OCR defend them under Marcus’s leadership?

After some back-and-forth, Marcus replied that he didn’t think that OCR had the authority to protect these students. OCR, he said, “has not been granted authority to enforce the equal protection clause.”

“I’m shocked by that answer,” Senator Warren said, as we all should be.

Whether Marcus knows it or not, the OCR assistant secretary must enforce all civil rights protections and advocate for kids and families—no matter their immigration status.


If he’s confirmed, Marcus would be responsible for protecting the rights of all children, so his hesitation about undocumented kids is troubling.

Undocumented children have had the right to a public K–12 education since the 1980s. The Supreme Court decision Plyler v. Doe ruled that every child, regardless of immigration status, has the unequivocal right to enroll in public school.

OCR’s mission is to “ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights.”

Since Plyler v. Doe established education as a civil right for undocumented kids, OCR has recognized that it plays a vital role in upholding the rights of all children to receive an education. Since the OCR’s driving mission is to protect all students’ civil rights, the head of OCR must be committed to serving undocumented children. Plain and simple.


Marcus’s nomination raises other concerns as well. While he claims to have been a champion for students of color and English learners with disabilities, his public record on these issues is very light.

In his legal writing, Marcus has troublesome views about the value of affirmative action programs, as well as the OCR’s ability to analyze policies to make sure they don’t discriminate against minority students.

Additionally, the OCR was specifically created to be an advocate for families and students against states, schools, and school districts, recognizing that families do not have the same agency and power that these entities do. The very purpose of the OCR is not to be a neutral observer between schools and students, and it’s unclear whether Marcus accepts that his role in OCR is to be an advocate for families and children, rather than just a neutral party between schools and families.

Coupling these concerns with Mr. Marcus’ statements at his nomination hearing, it’s clear that he’s not the right person for the job. His failure to commit to protecting all children across the United States indicates that he fails to meet the most basic qualification of the job he’s asking for.


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