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.”

Members of the Orthodox Union Advocacy Center met with Education Secretary Linda McMahon on Wednesday to discuss federal efforts to counter antisemitism and new legislation promoting school choice.

The meeting came amid a backdrop of concern from inside and outside the administration that negotiations with colleges and universities will prioritize hefty financial settlements rather than lasting reforms on antisemitism.

“We … spent time talking about combating antisemitism at universities, and — while expressing appreciation for the aggressive approach the department has taken — urging them to keep doing things that are going to make for lasting changes, and not things that could get rolled back when another administration comes into office,” Nathan Diament, executive director of public policy for the OU, said.

Diament said that OU is pushing for concrete policy changes at universities including “enforcement of policies protecting the rights of students, more careful scrutiny of faculty hiring and curriculum content.” He said that the issues on some campuses have “abated, but that could easily be reversed.”

Diament said that McMahon was “very much in agreement” with the OU group and conveyed that “that’s [the department’s] goal.”

The group also discussed the implementation of the Educational Choice for Children Act, which creates a national tax credit for donations to scholarship programs that can be used for a range of purposes including religious schooling.

Though the program is being primarily implemented through the Treasury Department, Diament said that the Department of Education has an important role to play and that the administration will need to make some key policy decisions on how it will carry out the program.

He said the OU wants to ensure that state governments, which need to approve scholarship programs on a state-by-state basis under the law, will not seek to limit or condition the eligibility of certain types of scholarship programs for funding.

Diament said that the OU leaders also met with lawmakers including Appropriations Committee Chair Susan Collins (R-ME) and Sens. Shelley Moore Capito (R-WV), Kirsten Gillibrand (D-NY) and Elissa Slotkin (D-MI) about Nonprofit Security Grant Program funding.

“The good news, so to speak, is that they all agree with the need to increase the funding of NSGP significantly above where it’s currently funded,” Diament said. “They recognize the need of the Jewish community. … On the other hand, it’s a very challenging appropriations environment, but these were very important discussions with key people to try to keep the ball rolling in the direction of funding this program.”

He added that a significant increase in the number of Catholic organizations applying for the grants is expected next year, in light of the Annunciation Church shooting in Minneapolis in August.

Education Secretary Linda McMahon said on Wednesday that the Trump administration’s goal is not to engage in a prolonged legal battle with Harvard University and expressed hope that the federal government would be able to reach a settlement that delivers meaningful reforms to the elite campus. 

McMahon made the comments while appearing at the Federalist Society and the Defense of Freedom Institute’s annual Education Law & Policy Conference on Wednesday morning, after being asked during a moderated conversation with Washington Examiner news editor Marisa Schultz where negotiations between Harvard and the administration stand. 

“I’m certainly hopeful on the settlement. I have spoken to Alan Garber, their very good president, at the very beginning of this. I haven’t spoken to him since, but I do think that with the idea that Harvard has already started to take certain measures to change what they were doing, I certainly hope that there will be an agreement,” McMahon said. “It’s not our goal to have to go to court to make people abide by the law, to make universities abide by the law.”

Getting specific, the education secretary explained that, “Harvard has already started to put in place some of the things we wanted them to do. They reassessed their Middle East policies. They actually fired a couple of their professors. They are looking at having safe measures on campus, and so without even admitting any guilt in any way, they have started to change their policies, and that is the ultimate goal of our investigation, of making sure that things are proper on campus.”

Asked by Schultz about the ongoing negotiations with the University of California, Los Angeles and other schools, and how the settlements fit into the Trump administration’s “big picture mission for elite universities and colleges in America,” McMahon said that their “goal is really not to be punitive necessarily, but to have universities, I think, return to what we all believe that universities started out to be.”

“It’s not to be punitive. That’s really not the goal. The goal is to make them change their policies and practices, and if they are not in compliance with the law, then surely we’re going to insist they are, or they won’t receive federal funding,” she said.

The education secretary said she believed it was in the best interest of all parties to reach settlements rather than risk upending the more than $2 billion in research grants that Harvard receives from the federal government. “The federal funding for Harvard, not only for students who attend, for their tuition, but also the amazing amount of research funding — they get over $2 billion, almost $3 billion — is very significant to those scientists and professors who were there, who have grants and who are working on their own projects,” McMahon said. 

“They can take that grant money and go somewhere else, if it’s a grant directly to them, so I think it’s in Harvard’s interest to continue to negotiate. I think it’s in all of our interests for Harvard and for all of the other universities that we are sending letters to, that we are investigating, and there are others. Hopefully there will be these settlements with all of them, because basically, we just want them to do right,” she explained.

McMahon made a similar remark about the importance of protecting research grants while discussing the administration’s settlement with Columbia University reached over the summer, which followed a protracted legal battle.

“We eventually reached an agreement with Columbia,” McMahon said. “They will pay a fine back to the United States government. Their funding will be released again, and it’s primarily research funding. I believe our universities do some of the most incredible research in the country. We want them to be able to do that, but they have to abide by the law. They have to abide by Title VI, they have to abide by Title IX. They have to be worthy to receive the funds that they are receiving from the United States government.”

The comments mark the first time McMahon has publicly shared her thoughts on what outcome she would like to see from the federal government’s negotiations with Harvard University amid an ongoing dispute between different factions within the Trump administration over the effectiveness of the ongoing negotiations and settlements with universities. 

While some officials are focused on any deal that would secure strong reforms to address antisemitism and other civil rights issues, others are looking for securing large payouts to appease President Donald Trump. 

“There’s growing dissatisfaction with the White House letting universities buy their way out of accountability with no meaningful change. It’s clear they’ve been totally out-negotiated,” one source familiar with the negotiations told JI earlier this month of the situation.

Trump said late last month that he expected Harvard to pay at least $500 million to restore its more than $2 billion in federal funding. “We want nothing less than $500 million from Harvard. Don’t negotiate, Linda. They’ve been very bad. Don’t negotiate,” Trump said while addressing McMahon at a Cabinet meeting. (McMahon acknowledged Trump’s remarks in the moment but did not respond further.)

Pressed on Wednesday about Trump’s comments and the fact that a federal judge in Boston blocked the administration’s freeze on Harvard’s research grants earlier this month, McMahon noted that they plan to appeal the ruling and said the government was in a strong position in its fight against the university.

“We’re still in the throes of negotiating with Harvard. They filed a lawsuit, they won the first round, and one of the things they were claiming was that the steps that we were asking of them would violate First Amendment rights, and that’s just not true. I think that we have a really good case against Harvard,” McMahon said.

Speaking at a Senate Appropriations Committee hearing on Tuesday, Secretary of Education Linda McMahon laid out the administration’s expectations for campus antisemitism policies, but sidestepped how the administration will execute on those directives while making substantial cuts to the Department of Education’s Office for Civil Rights.

“We’re saying we mean business, these programs and policies have to have teeth, they have to be enforced,” McMahon said. 

She outlined a series of policies the Trump administration wants to see campuses enforce, including banning encampments, prohibiting the use of masks and better vetting of students and professors. Professors, she said, must not teach ideology.

She added that the Office for Civil Rights has opened “many cases” on campus antisemitism and is taking enforcement actions, including pulling funds from multiple schools.

But she failed to directly address concerns from Sen. Shelley Moore Capito (R-WV), the subcommittee chair, that cuts to OCR could hamper the administration’s ability to adequately address campus antisemitism.

House Democrats urged Education Secretary Linda McMahon not to make cuts to the Education Department’s Office of Civil Rights as employees work through the backlog of cases, which includes scores of civil rights complaints from Jewish students alleging discrimination at their universities since the Oct.7, 2023, attacks on Israel. 

After Rep. Bonnie Watson Coleman (D-NJ) accused McMahon and the Trump administration of being broadly unconcerned with civil rights, citing the Office of Civil Rights and the Education Department “being decimated,” McMahon responded: “It isn’t being decimated. We have reduced the size of it; however, we are taking on a backlog of cases that were left over from the Biden administration.”

Asked why she’d reduce resources to the office given the backlog from the previous administration, McMahon replied, “Because we’re working more efficiently in the department.”

Rep. Lois Frankel (D-FL) similarly urged McMahon not to make cuts to OCR “if you are sincere about fighting antisemitism and also all kinds of unlawful discrimination.” Frankel also referenced several other programs she wanted McMahon to protect, a number of which McMahon expressed openness to considering. 

After recounting an experience of a Jewish friend who took their children out of the Washington, D.C., public school system due to its unwillingness to address concerns about antisemitism, Rep. Stephanie Bice (R-OK) offered McMahon an opportunity to speak about the rise of antisemitism in primary and secondary education. 

“Certainly the president has made it very clear that he does not condone any kind of discrimination — racial and especially, we’ve seen religious, we’ve seen it across our college campuses, some of the most elite in the country. We took very strong and very decisive action against those universities who clearly were not protecting Jewish students against antisemitism,” McMahon told the committee. 

“When you see students barricaded in a library, and others pounding on the glass going, ‘Death to Jews. Death to Israel. Death to United States,’ that is unacceptable at our college campuses. And we reacted,” she continued.

McMahon went on to discuss her engagement with Columbia University, praising its acting president, Claire Shipman, for her response to student protesters involved in the takeover of the school’s main library earlier this month.

“We reacted to Columbia first. This incident happened at Columbia, and I met with the president of Columbia. I’ve had two conversations now with the current president of Columbia. We’ve talked about things that we need to do at those universities. We want to be able to be supportive, but those universities, albeit they’re private, do receive federal funding. We have leverage to withhold some of that federal funding or to cancel some of the grants, and we would do that unless it could be proven that these colleges and universities are going to respect all rights and set their policy in place and enforce them,” McMahon said.

“I was complimentary to the acting president now at Columbia, Claire Shipman, when I talked to her last week, and I said, ‘You reacted just as you said you would to the recent uprising on campus. You were looking at whether or not– you’ve suspended students, are you going to expel them?’ And that’s still what she’s looking at. So we’ve seen that that kind of action can deliver results,” she continued.