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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?


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Brooklyn College BDS forum, Feb. 7, 2013

Brooklyn College BDS forum, Feb. 7, 2013
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♦ One of the public safety officers, Raishawn Harris, told the Investigators that when he came out, Guzman told her that “he needed to remove four people who were causing a disturbance and interfering with the speech.” (R. pp. 28 – 29)

♦ The other public safety officer, Maureen Knight, told the Investigators that as she entered the event room, Guzman told her “that the students were disturbing the event and were waving some papers.” (R. p. 29)
◊Knight, however, told the Investigators that when she entered the room “she saw two women shuffling papers,” and two men “who were not doing anything.”  Knight also told the Investigators that “Guzman pointed to the two men and said they had to go too.” (R.p. 29)

♦ Director of Brooklyn College campus security Wenz told the Investigators that after the Four had been removed from the event, he asked Morales what happened.  Morales then told him the Four had been “holding and waving flyers and disrupting the event and that Guzman had asked them to leave.” (R.p. 29)

♦ Wenz told the Investigators he asked Morales what she wanted to do and she replied, “it’s their event.” (R.p. 29)

♦ Wenz then directed the officers to remove the Four from the area, and they were taken down the stairs. (R.p. 29)

In other words, with the exception of the unknown, unnamed female who was not interviewed by the Investigators, Guzman was the only one who said the Four were disrupting the event, creating a disturbance, and distributing and/or waving about leaflets.

GUZMAN MADE THE DETERMINATION AND DIRECTED THE EXPULSION OF THE FOUR

Carlos Guzman was the sole decision maker in a sea of faculty, administration, public safety officers and other adults.  Brooklyn College empowered this outsider to act as its agent, with complete control over how and whether, among other things, to honor the constitutional rights of Brooklyn College students.  And not one of the dozen or so Brooklyn College or CUNY representatives present that night lifted a finger, or a voice, to stop him.

The Four were removed from the BC BDS event room, barred from voicing their opinions, barred from speaking freely, unable to freely associate with their peers and unable to hear and engage in the debate as are their rights under the First Amendment to the U.S. Constitution and as they had been promised and encouraged to do by no less than the president of Brooklyn College, Karen Gould, when she wrote to the school community on January 28, “we uphold their right to speak, and the rights of our students and faculty to attend, listen, and fully debate.”

The Jewish Press exchanged a series of emails with  CUNY’s Senior Vice Chancellor Jay Hershenson.  We asked why, given the absence of any evidence to the contrary, the Investigators refrained from making a determination that the Four had been discriminated against on the basis of their political viewpoint. Hershenson acted as the go-between with the Investigators.  This was his reply:

1.(a)  University Counsel indicated that the answer to your question is in the same paragraph from which you properly quote.   Counsel indicated that although there was some evidence that the motive was political discrimination, they  concluded that the preponderance of the evidence favored the conclusion that they were removed because of a sincere, albeit exaggerated fear of a disturbance by Guzman.
(b) Counsel advised that it is not the case that more evidence would have made it less speculative since there was no other source of evidence on the question of motivation.  Rather, based on all the evidence, Counsel concluded that the inference of discrimination was weaker than the inference that Guzman acted from a sincere but exaggerated fear of a disturbance.

But the law is that even if Guzman had been correct that a disturbance was about to erupt, his removal of the students would not have been justified. That is especially clear because the Investigators themselves recognized that any concern on Guzman’s part that the Four might become disruptive, even if it was sincere, was not reasonable.  The law is absolutely clear that only a “reasonable fear” of imminent violence can justify restriction of First Amendment protected activity.

Lori Lowenthal Marcus

About the Author: Lori Lowenthal Marcus is the U.S. correspondent for The Jewish Press. A graduate of Harvard Law School, she 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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