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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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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.

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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