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.