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March 4, 2015 / 13 Adar , 5775
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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

And yet, the Investigators wrote without further discussion that, “any conclusion about a discriminatory motive would be speculative.” (R. p. 33)

Instead, for factual and legal reasons they did not identify, the Investigators chose to “credit the sincerity, even if it was mistaken” of Guzman that a disturbance was about to happen, despite their own determination “nothing the four students had done gave rise to a reasonable fear that a disturbance was about to erupt.”

Having made the curious decision that Guzman’s claim of sincerity for his belief that the four expelled students constituted a threat of disruption for the meeting, the Investigators made the equally troubling decision to conclude that such sincerity is, as a legal matter, enough to immunize Brooklyn College from liability – and enough to strip the Four students of their constitutional rights.

There are three problems with those choices.

First, Carlo Guzman was neither objective nor motivated to ensure that the full panoply of viewpoints had equal access to the forum he was running.  In fact, not a BC student at all, he was one of the central originators and organizers of the BC BDS event.  He is also a leader of Hunter College’s Students for Justice in Palestine, despite no longer being enrolled there. And Guzman was the sole source for what turned out to be unquestionably false – not just mistaken but false – claims made to BC officials and administrators, including the Investigators themselves that the Four were disruptive and interfering with the BDS event. And the Investigators recognized this because they concluded that Guzman’s alleged concern about a disruption was “not reasonable.”

Second, Guzman’s accounts of events were fatally inconsistent with one another, and they were fatally inconsistent with every single other report of what happened at the event.  These inconsistencies make it completely unreasonable for the Investigators to believe in Guzman’s sincerity.  Put it this way: if Guzman were on a witness stand, the inconsistencies between his different accounts, and between his accounts and everyone else’s, would make cross-examining him a trial lawyer’s dream.

The lawyers who led this Investigation are undoubtedly experienced enough to know that.  And that makes their decision to rely on Guzman’s credibility all the more strange.

And third, even if the Investigators naively chose to believe that Carlos Guzman was sincere in believing “a disturbance was about to erupt,” they are wrong, based upon the law governing political viewpoint discrimination, in concluding that such a belief justified the removal of the four pro-Israel students – especially when the Investigators themselves recognized that any such belief, sincere or otherwise, was not reasonable.  And that makes their determination that there was no constitutional violation quite difficult to accept.

What follows describes the Feb. 7 BC BDS event, focusing specifically on the ejection of the four Jewish pro-Israel students.

INITIAL REPORTS

The Feb. 7 Brooklyn College BDS event was held in a relatively small lecture room.  Alex Kane, a reporter for the anti-Zionist blog MondoWeiss, who attended the BDS event reported that night that the event “came and went without a hitch.” Kane was interviewed the next day by a reporter from the ardently anti-Israel Electronic Intifada. He told the interviewer that “the event really went off without any problems.”

Another anti-Zionist journalist who was present at the event, Lisa Goldman, ridiculed the “right wing” pre-event build-up.

“And after all that, the event turned out to be a non-event. An audience of about 300 people sat quietly and listened to Judith Butler and Omar Barghouti speak, which they did — without interruption” wrote Goldman in +972.

The same descriptions of an event free from disturbance also came from the New York Times and the Chronicle of Higher Education.

Oops.

So why were four Jewish pro-Israel Brooklyn College students ejected from the event?

REPORTS OF THE FOUR’S OUSTER, BASED UPON SJP MEMBER CLAIMS

The initial reports blamed the expulsion of The Four on the behavior of the students themselves. Interviews with Brooklyn College officials immediately after the event stated that those students were tossed out because they were vocal, disruptive and belligerant.  This was from a report of an interview of a Brooklyn College spokesperson the day after the event:

My understanding is that these students were in the room along with the rest of the audience. From the first speaker they began to speak out, they were becoming vocal and disruptive to the members around them and one of the student organizers of the event went to them and said ‘you really need to be quiet you’re disrupting other people around you.’ They then did not comply and a couple of police officers asked them to come out into the lobby.’ Thompson also claimed that school officials in attendance, including Morales, confirmed this account.

Once word got out that the Four were ejected from the event for creating a “disturbance,” the revisionism began.

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. You can reach her by email: Lori@JewishPressOnline.com


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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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