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October 9, 2015 / 26 Tishri, 5776
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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

What’s more, the weighing of the evidence as described in Hershenson’s letter is one appropriately used in employment discrimination cases, not ones in which constitutional violations are claimed.

The Investigators  make it absolutely clear: the Four were kicked out of the BDS event because Guzman saw they had sheets of paper with information printed on them that countered the views being presented by the BDS speakers, because Guzman had seen one of the Four speak out against “Palestinian” positions before (R. p. 8, fn 2), and because Guzman “might have harbored some resentment” that the Four were allowed in to the forum at all [addressed in the part part of the Investigation]. (R.p. 33) Guzman was quoted in a report shortly after the event that he had the Four removed because “they didn’t belong there.”

Jay Sekulow, the head of the American Center for Law and Justice and one of the nation’s leading viewpoint discrimination scholars and advocates told The Jewish Press that for Brooklyn College “to eject students merely because they had materials that opposed the point of view of the speakers – even if the students were distributing them – is classic viewpoint discrimination and is prohibited by the U.S. Constitution.”

Sekulow went further, based upon his own experience litigating many of the most significant viewpoint discrimination cases in U.S. courts, including in the U.S. Supreme Court.  He said, “even if the students were understood to be potential troublemakers, the perception of potential disruption is insufficient grounds for ejection; there has to be actual disruption or the students’ removal is unconstitutional.”

As Hershenson wrote after fielding a series of questions put to him by The Jewish Press, “the report will be discussed and it will provide an important opportunity to make improvements.”

Let’s hope so, because many are needed.

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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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:


  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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