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Published in Print: April 21, 2004, as Title of Federal Civil Rights Official Questioned

Title of Federal Civil Rights Official Questioned

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In a city where government job titles are analyzed obsessively, this one has some people scratching their heads.

Kenneth L. Marcus’s title is: "Delegated the authority of the assistant secretary of education for civil rights." Or, in another description used by the Department of Education: "Delegated the authority to perform the functions" of the civil rights post.

The title puzzles several advocates who deal regularly with the Education Department’s office for civil rights. Some wonder whether the Bush administration is seeking to avoid putting forth a full-fledged nomination for the assistant secretary’s position, which would require Senate confirmation. That confirmation process would occur during an election year.

Mr. Marcus, who worked in a federal post enforcing fair housing laws before coming to the Education Department in 2002, was named in November to oversee the office for civil rights. But he has not been nominated by President Bush to the assistant secretary’s position, nor has he been given the job on an acting basis, a common designation among political appointees who may or may not eventually be formally nominated.

President Bush’s choice for the job in 2001, corporate lawyer Gerald A. Reynolds, was never confirmed by the Senate, amid Democratic concerns about his opposition to affirmative action. Mr. Reynolds was able to serve for a time as acting secretary under what is called a recess appointment. He now works in the Department of Justice.

Some observers question whether Mr. Marcus’ unusual title is an attempt to avoid a Senate confirmation battle.

"By saying he’s going to hold this office indefinitely and not making any commitment to whether he’s going to keep that title, they’re acting in contempt of the law," said William L. Taylor, the vice chairman of the Leadership Conference on Civil Rights, a Washington-based coalition of civil rights organizations. "It is not proper to give him this title and not give him the nomination."

Sen. Edward M. Kennedy of Massachusetts, the ranking Democrat on the Senate Health, Education, Labor, and Pensions Committee, made an informal request last week to the nonpartisan Congressional Research Service to clarify how long Mr. Marcus can hold the "delegated" title without being nominated, said Jim Manley, a spokesman for the senator.

The Senate education committee is charged with holding hearings and voting on nominees to the OCR position.

"I would hope Congress would exercise its oversight functions over the Department of Education, regardless of whether there is a nomination," said Jocelyn Samuels, a vice president of the National Women’s Law Center.

The office for civil rights enforces federal laws prohibiting discrimination on the basis of race, gender, disability, and other factors in schools and colleges that receive federal money.

Housing Experience

Education Department officials maintain that by having Secretary of Education Rod Paige delegate authority over the OCR to Mr. Marcus, the civil rights official is entitled to hold the post indefinitely, department spokeswoman Susan Aspey said.

Department officials interpret federal law as putting a 210-day limit on an individual’s service in an acting capacity in certain high-level positions— unless that person is nominated, in which case that time limit could be exceeded, Ms. Aspey said. They don’t consider that statute to apply to Mr. Marcus since he has not been named an "acting assistant secretary."

She said any question about why Mr. Marcus has not been named acting assistant secretary or formally nominated needed to be directed to the White House.

Allen Abney, a White House spokesman, declined to comment on Mr. Marcus’ job status or title.

Before joining the Education Department in August 2002 as a special assistant to Mr. Reynolds, Mr. Marcus served as the Department of Housing and Urban Development’s general deputy assistant secretary for fair housing and equal opportunity.

Prior to serving at HUD, Mr. Marcus, 37, worked as a lawyer in private practice. In one high-profile case, he represented a group of homeowners in Berkeley, Calif., who successfully sued the federal housing agency in federal court. The homeowners alleged that HUD had sought to quash their free-speech rights by launching an improper investigation of them and their motives in opposing a homeless shelter.

"The federal attorneys would say something, and he would just cut them to ribbons," said Richard Graham, a plaintiff in the case.

Curt A. Levey of the Center for Individual Rights, which worked with Mr. Marcus on the Berkeley case, was one of many observers to describe him as an astute lawyer with a thorough grasp of the nuances of civil rights law.

"He’s one of the brightest people I know in this town," said Mr. Levey, whose nonprofit Washington legal organization has backed many conservative causes. "He’s the sort of person who can be at work for 12 hours, and focused for 11.95 of them."

Vol. 23, Issue 32, Pages 24,26

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