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April 17, 2014 / 17 Nisan, 5774
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CUNY Claim of No Constitutional Violations at BC BDS Event Flawed

The standard for judging whether constitutional rights can be abrogated is not, as the Investigators claimed in their Report, based on sincerity, but on whether or not, at the very least, there was a reasonable belief that the Four were about to disrupt the BC BDS event. The Investigators stated clearly that there was no such reasonable belief at the time the Four were ejected from the event. Doesn't this mean the Investigators drew the wrong conclusion?

Brooklyn College BDS forum, Feb. 7, 2013

Brooklyn College BDS forum, Feb. 7, 2013
Photo Credit: Facebook

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There was much sturm und drang about “free speech rights” and “academic freedom” in the buildup to a February 7, one-sided anti-Israel event at Brooklyn College, co-sponsored by BC’s political science department, along with the student group, Students for Justice in Palestine.  The event, to promote the form of economic and political warfare against Israel known as BDS (Boycott of, Divestment from and Sanctions against Israel) went forward.

Suggestions that the constitutional rights of four Jewish pro-Israel Brooklyn College students were violated when they were ejected – at the hands of Brooklyn College public safety officers and at the sole direction of a 20-something non-objective outsider whom BC had vested with its authority – from the event were initially rejected and ridiculed.

That is because initial reports, including those made by BC officials, blamed the behavior of the students as the justification for their expulsion.

However, the existence of an audiotape surreptitiously made at the event, which flatly contradicted the public position of BC and some media outlets, was revealed on Feb. 12.  The next day the Chancellor of the City University of New York announced  that there would be an investigation into the Feb. 7 event, headed by Brooklyn College’s own Chancellor for Legal Affairs Frederick P. Schaffer, and two partners from the law firm Bryan Cave LLP.

A 36-page, double-spaced Report of the Investigation was released on Friday, April 12 and was posted online sometime over that weekend.

The four problem areas addressed in the Investigation are: I. The Reservation and Admissions Process (addressed in the Report in pages 3 – 15); II. The Handling of the Press (Report, pp. 16 – 20); III. The Removal of the Students (Report, pp. 20 – 35); and IV. The Q & A Session (Report, pp. 34-35).

Rejecting the claims of constitutional violations, the Investigators instead found that the event was plagued by extreme disorganization, unwarranted reliance on students as decision makers, and flawed – though extensive, and presumably expensive – preparations.

In other words, the Investigators concluded that the problems were caused by benign negligence rather than malignant intent.

But the evidence adduced, the information available, and the justification for action described in initial reports that were later revealed as not just flawed but false and obviously so, puts that conclusion in question.

Even more troubling is that despite the sophistication of the legal experts responsible for the Investigation, they seem to have issued a flawed legal conclusion on the most important issue at stake.

The standard for judging whether constitutional rights can be abrogated is not, as the Investigators claimed in their Report, based on sincerity.

The standard for judging the permissibility of restrictions on constitutional rights is whether or not, at the very least, there is a reasonable belief that, in this case, the Four were about to disrupt the BC BDS event. The Investigators stated clearly that there was no such reasonable belief at the time the Four were ejected.  Therefore, based on the evidence provided in the CUNY Report, it would appear that the constitutional rights of the four Jewish pro-Israel students were violated.

What follows are the details of the Investigation, focusing primarily on the ejection of four students during the event.

*************

The Investigators concluded no discrimination had taken place with respect to issues I. II and IV.

However, in addressing the third issue, that of removing the students, the Investigators concluded that while there “was no support for an inference of discrimination based on religion” (R.p. 33), they were not as confident that another form of discrimination had not taken place.

“A more plausible inference can be drawn that the removal of the four students was motivated by their political viewpoint,” the Investigators wrote. (R.p. 33) Making clear their understanding that political viewpoint discrimination was a relevant consideration, the Investigators noted that “Guzman [the decision maker] knew Goldberg [one of the Four] from a prior SJP event at which she had asked questions that challenged Palestinian positions.” (R.p. 33)

The constitutional prohibition on viewpoint discrimination means that the government (or government funded entities, such as Brooklyn College) cannot selectively silence viewpoints.  Brooklyn College, which is a state actor for purposes of this analysis, must make and enforce rules that are “viewpoint neutral.”

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About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools.


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6 Responses to “CUNY Claim of No Constitutional Violations at BC BDS Event Flawed”

  1. Stan Brin says:

    Anybody stupid enough to expect a different opinion?

  2. Gil Gilman says:

    No!

  3. Gil Gilman says:

    This report reminds me of a Mark Twain quote, "there are lies, damned lies, and statistics." I leave it to you the reader to prove that the 36 page report doesn't fall under all three categories.

  4. Alan Kardon says:

    This is a publicly funded school. Why are we hearing that it was run by incompetent people. Let some heads roll and get better administrators.

  5. An incompetently run event is bad enough. A politically slanted event is worse, though not exactly a big surprise. BUT — a report by intelligent lawyers, at a fancy law firm, paid, no doubt, lots of tax dollars do to their 36 page legal analysis — for such a report to get the law WRONG? That's a big problem.

    I hope the students whose rights were violated have read this article, and the report, and that they are prepared to do something about it. This being America, the thing to do when your rights are violated is to hold the violators to account. In court.

  6. Anonymous says:

    As I listen to the Boston events today the uncle of the bombers said that they were not raised like this. He said they must have been radicalized elsewhere. My first thought was that they probably went to a BDS event on campus. This is why BDS, and other hate organizations, should be kept off campuses.

    This is what Karen Gould, BC President doesn't understand. This wasn't about free speech. This was about prevention of violence.

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