Ken Marcus, the founder of the Louis D. Brandeis Center for Human Rights Under Law, said on Wednesday that he had faith in Education Secretary Linda McMahon to ensure that any settlements the Trump administration were to make with Harvard University or other schools would ensure concrete reforms to address campus antisemitism. 

Marcus, one of the nation’s leading antisemitism experts who served as assistant secretary of education for civil rights in President Donald Trump’s first administration, made the comments while speaking to Jewish Insider on the sidelines of the Federalist Society and the Defense of Freedom Institute’s annual Education Law & Policy Conference, where he and McMahon both made appearances. 

“There have been a lot of concerns expressed about whether the federal government is going to be letting universities off too easily on soft deals. It is my perception that Sec. McMahon is resolved to make sure that any settlement agreements are strong and effective. I believe that she is willing to fight for that, and that should be a source of significant confidence,” Marcus told JI. 

Marcus was responding to a question about the ongoing dispute between different factions within the Trump administration over the effectiveness of the ongoing negotiations and settlements with universities, most notably Harvard. Officials have split themselves into two camps, with one side pushing only for deals that secure substantial changes to school policies to address civil rights issues and the other seeking large payouts to appease President Donald Trump, who has said he wants Harvard to pay at least $500 million to restore its more than $2 billion in federal funds. 

McMahon said during her Wednesday morning appearance that it was not the Trump administration’s objective to end up in prolonged legal battles with Harvard or other universities and revealed she was hopeful about reaching a settlement that delivers meaningful reforms to the elite campus. She also expressed confidence in the government’s case.

“Sec. McMahon was right to remind us that the same judge who ruled against the federal government in the Harvard case had also ruled in favor of Harvard in the affirmative action case,” Marcus told JI.

“The judge was overruled before and may well be overruled again. That case turns in part on some very technical issues involving sovereign immunity under the Tucker Act and whether the Court of Federal Claims is the exclusive court with jurisdiction over procurement issues, so we’ll see where it goes on appeal, but I certainly fully understand why the Trump administration would appeal this and feel some degree of confidence,” he continued, referring to the federal law that allows individuals to sue the U.S. government. 

Marcus spoke to JI ahead of his appearance on a panel entitled, “Federal Efforts to Combat Antisemitism: Restoring Campus Civil Rights or Infringing on Academic Freedom?” 

The discussion was moderated by Florida Supreme Court Chief Justice Carlos Muniz and featured Marcus; Sarah Perry, vice president and legal fellow with Defending Education; Ilya Somin, law professor at George Mason University’s Antonin Scalia Law School; and Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression (FIRE). 

While the group respectfully disagreed over some proposed solutions, such as codifying the International Holocaust Remembrance Alliance’s working definition of antisemitism on the state or federal level, they also found several areas of common ground.

Perry, Marcus and Coward each said they support the federal government amending Title VI to add religion to the categories of protected groups. “Title VII of the Civil Rights Act of 1964 does something that Title VI does not, which is including religious protections,” Perry said. 

All four agreed that enforcement of current policies on the books, rather than relying on legislators to amend the law, was necessary.

“If we enforce the policies that are on the book, we actually don’t have to address defining antisemitism, because we already have these neutral policies that are on the books. Then we can avoid some of those things [such as disputes over the IHRA definition],” Coward said. “Because I think the actual actions we’re trying to stop are the … conduct of running Jewish students off campus, that kind of stuff, as opposed to defining that more broadly.”