CCR and Palestine Legal Defend Students Disciplined by Fordham for Palestine Advocacy

Fordham Denied Student SJP Club Application then Disciplined Students for Protesting Decision

CCR and Palestine Legal are advocating on behalf of Fordham students who were denied permission to start a chapter of Students for Justice in Palestine (SJP) at the university and then disciplined for protesting the decision. On December 22, 2016, more than a year after Fordham students had applied to start an SJP club, Fordham's Dean of Students informed them that their club application was denied. The dean explained in his decision that he believed an SJP group would create "polarization" on campus and "run contrary to the mission and values" embraced at Fordham. CCR and Palestine Legal wrote a letter to Fordham administrators on January 17, 2017, expressing concern over the school's violations of the principles of free speech and academic freedom, as well as a potential violation of Title VI of the Civil Rights Act for denying educational opportunities based on national origin. Fordham's Senior Vice President for Student Affairs wrote a letter in response on January 20, 2017, explaining that the club application was denied because administrators believed the group would engage in disruptive behavior based on its affiliations with other SJP groups and because the group had a narrow, "singular focus." CCR and Palestine Legal replied on January 26, 2017, affirming that the decision violated free speech rights, that National Students for Justice in Palestine was an independent organization and had not been disruptive, that civility cannot be used as a valid excuse for violating free speech principles, and that  concerns about Fordham's violations of Title VI remained. Fordham's Senior Vice President responded briefly that day, affirming that his decision would stand.

On February 1, 2017, a student involved in the SJP club application was informed that she would be charged with a disciplinary offense for violating the school's demonstration policy after she organized a rally opposing the SJP denial on January 23. The same Dean of Students who denied SJP's club status filed the complaint against the student and would alone conduct the closed-door hearing, with no other witnesses, to determine the punishment. The student declined to testify at the hearing and received a "disciplinary reprimand" of "official warning." On March 1, 2017, CCR and Palestine Legal sent a letter to Fordham's Senior Vice President asserting the student's right to an appeal. Fordham responded that day to inform CCR and Palestine Legal that no appeal was available.

The penalization by Fordham of student activists for Palestinian rights comes in the context of coordinated nationwide attacks on student organizing. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian human rights, including on college campuses, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

The text of the letters is below.

Via Email

January 17, 2017

Rev. Joseph M. McShane
Office of the President
441 East Fordham Road
Bronx, NY 10458

Re: Ban on Students for Justice in Palestine at Fordham University

Dear Rev. McShane,

We write on behalf of students who applied to start a Students for Justice in Palestine (SJP) chapter to express our serious concerns with respect to Fordham University’s decision to deny SJP student group status at the Lincoln Center campus, after a year of meetings, questioning, and delays. All evidence indicates that the denial was based on the viewpoint of students’ message and/or their national origin. The denial violates free speech and association principles and the University’s commitment to protect free inquiry, and could give rise to a violation of Title VI of the Civil Rights Act. Accordingly, we demand that you immediately approve SJP, apologize, and reaffirm Fordham’s commitment to free speech, associational rights, and academic freedom.

Our understanding of the relevant facts is as follows:

On November 19, 2015, four Fordham students (“Students”) applied to start a student group, Students for Justice in Palestine, at the Lincoln Center campus.[1] The students expected Fordham would approve their group within a few weeks so that they could start their educational programming. SJP’s proposed mission is “to build support in the Fordham community among people of all ethnic and religious backgrounds for the promotion of justice, human rights, liberation, and self-determination for the indigenous Palestinian people.”[2] The students intended for their club to foster a greater understanding of Israel-Palestine on campus. All four of these original executive board applicants were students of color, three were Muslim, and one, Ahmad Awad, who hoped to be president, was Palestinian-American.[3]

Students received no substantive response.

In February 2016, Dr. Dorothy Wenzel, Director of the Office of Student Leadership and Community Development and New Student Orientation, asked to meet with one of the students to discuss concerns regarding the student’s position on the executive board of the Muslim Students Association (MSA). Wenzel told this student that she could not also be vice-president of SJP, and asked her about SJP’s plans. Wenzel mentioned that she visited Israel and understands the conflict is “tragic.” The student decided to give up her SJP position, and Dr. Wenzel made no further inquiries about her position with the MSA.

The students continued to wait to hear back from Fordham as to the status of their application to start an SJP group.

On April 6, 2016, Ahmad wrote Dr. Wenzel inquiring about SJP’s status and letting her know that the student she met with in February would not be vice-president of SJP. Ahmad wrote:

We've effectively missed a whole semester of being involved on campus, and would appreciate approval soon so we can begin hosting meetings for fellow Fordham students who are interested to learn about what SJP is.

We are very motivated to make this club happen. It is an issue very dear to our hearts, especially as I, Ahmad, am Palestinian myself.[4]

Near the end of the spring semester, on April 26, 2016, Dr. Wenzel and Amanda Ritchie, then-Vice President of Operations for the United Student Government (USG), met with Ahmad and another student interested in forming SJP. At the meeting, Dr. Wenzel and Ritchie asked that SJP make a few boilerplate edits to their constitution regarding election of officers and membership requirements. They also directed the two students to ask if National Students for Justice in Palestine (NSJP) needed anything additional from SJP – such as certain language in SJP’s constitution – and stated that SJP could be approved in the fall. The students confirmed with NSJP that NSJP is a separate, student-run organization which organizes annual conferences but otherwise is independent of campus SJP organizations. The students also confirmed that nothing was needed from Fordham administrators or Fordham SJP and provided an email from NSJP to Kayla Wolf, the incoming Vice President of Operations for USG, confirming that NSJP has “not had any requirements for any group that comes to our conference to include specific language in their respective constitutions.”[5]

In September 2016, the students came back to school, eager to get their club started, since several of them were now seniors, and Ahmad was graduating in December. Specifically, students planned to organize events that would educate Fordham students about Palestinian culture and identity, Israel’s decades-long occupation, military attacks in Gaza, its two-tiered system of citizenship, and the impacts on Palestinians’ historical and contemporary experience.

On September 7, 2016, students emailed Wolf, again inquiring about the status of their approval process, again mentioning that NSJP had no formal requirements for SJPs, and asked if it was feasible to begin advertising their club at Fall Club Day on September 22, an event where clubs promote their activities and collect emails of students who are interested in joining. On September 11, 2016, Wolf informed Gunar she was “getting [his] paperwork (and status of club) figured out,” and would get back to him within a few days.[6] On September 14, Wolf informed Gunar that she had spoken with Dr. Wenzel about SJP, and would be “reaching out to [Gunar] with next steps very soon.” On September 20, Dr. Wenzel emailed Ahmad, stating that Wolf would be the club’s contact person for this academic year, asked for written communications “that the national organization does not require anything for your group to be a chapter at the LC campus” and asked to review the proposed constitution again.[7] The email also stated that Dean of Students Keith Eldredge had further questions “about [the group’s] proposed programming and some information in [the group’s] constitution” and asked to meet again.[8]

Gunar wrote back, reiterating that NSJP needed nothing from SJP, and inquired when Dr. Wenzel would be finished reviewing the constitution.[9] Dr. Wenzel set up a meeting for October 5, 2016, and stated she would have edits to SJP’s constitution by that date.[10]

On October 5, 2016, Ahmad, Gunar, and two other students interested in joining SJP met with Dean Eldredge, Dr. Wenzel, and Wolf. At the meeting, Dr. Wenzel and Dean Eldredge expressed concern that SJP’s presence would “stir up controversy,” in the same manner that had happened when Professor Norman Finkelstein, whose scholarship supports Palestinian rights, spoke on campus in 2009. Dr. Wenzel and Dean Eldredge asked students if they would consider not using the name “Students for Justice in Palestine” and expressed concern about the club’s support for using the tactic of boycotts, divestment, and sanctions (BDS) to pressure Israel into respecting Palestinian rights. Dr. Wenzel also said that she spoke to several Jewish faculty members about SJP in the previous academic year, and requested their opinion on whether SJP should be established at Fordham.

Students responded that they wished to educate the Fordham community on Israel-Palestine, and that BDS is a time-honored civil rights tactic that targets Israeli government policy, not Jewish people. They expressed that they had chosen the name Students for Justice in Palestine to connect the name to the broader movement for justice in Palestine and that they would like to keep it. Dean Eldredge stated that he would get back to students by next Friday, October 14, to “flesh more things out,” and may need to meet with them again.

The following day, students reiterated via email several of the points discussed at the meeting, and stated that they would make new boilerplate edits to their constitution and submit new officer and advisor forms, as Wolf requested, in the next few days.[11] On October 14, the students sent another email to Dr. Wenzel, asking if it was okay with her if they edited the group’s constitution to state that “NSJP requires nothing of us, and we have no responsibility to it.”[12] Students submitted the updated constitution later that day. Dean Eldredge responded, asking: “[C]an [you] add more information about boycott, divestment and sanctions of Israel. . . In addition, in that same section it would be helpful to articulate your understanding of the relationship of your organization to and with the National Students for Justice in Palestine organization.”[13]

On October 27, Ahmad, Gunar, their faculty advisor, and four students interested in joining SJP met with the USG Operations Committee, which, along with the Dean of Students, reviews proposed constitutions and submits them to the USG Senate “for final approval or denial.”[14] At the meeting, Wolf said that she would make sure USG voted on SJP the upcoming Thursday, November 10 or the Thursday after that. Gunar replied that this was an incorrect order of the club approval process according to the Club Registration Process document,[15] which states that after the Operations Committee approves a club’s constitution, they should send it to Dr. Wenzel (the student affairs director) and Dean Eldredge – not the USG Senate. Wolf said, "I know." When Gunar asked why she was not following Fordham policy, Wolf stated that Dr. Wenzel gave her permission to make such a move so long as SJP made the final edit to the constitution. Wolf also mentioned that she would inform the Jewish Student Organization (JSO) that there would be an upcoming vote to grant SJP club status at Fordham. When Gunar asked why JSO had a say in the establishment of SJP, Wolf simply replied that Dr. Wenzel had instructed her to let them weigh in. Gunar asked Wolf to let Dr. Wenzel know he believed this was inappropriate.

At the same meeting, Wolf also asked Gunar if Governor Cuomo’s executive order on BDS[16] prevented the formation of SJP, since SJP supported BDS. She also asked if the recent New York City Council resolution condemning BDS also meant that SJP should not be permitted to form on campus.[17] Students explained to Wolf that boycotts are protected speech activity, and pointed her to statements by the New York Civil Liberties Union and other legal experts on the matter in an email the next day. The email also stated:

You also mentioned that Dr. Wenzel advised you to notify the Jewish Student Organization following our meeting with you about when SJP would be put up for a USG vote. We immediately expressed concern that notifying JSO is an exploitation of the democratic process because it gives JSO an undue advantage to mobilize support against us.[18]

On October 31, USG President Leighton Magoon wrote SJP stating that Dr. Wenzel, members of the Office for Student Involvement, and the USG executive board just realized that “the club registration process listed in the Club Registration Packs, was, unfortunately, written incorrectly.” He apologized for the “lapse in editing.”[19] On November 3, Wolf emailed SJP stating that the Senate voted to postpone the vote on SJP from November 10 to the following Thursday. On November 13, Wolf asked SJP students to speak at the USG meeting “so the Senate can hear about Students for Justice in Palestine” and “why the club is important.”[20] Gunar asked if they were also speaking with the JSO, and Wolf informed him that the Senate also asked to meet with JSO “so they could hear their perspective.”[21]

SJP responded, asking,

We are still confused as to why JSO is being asked to speak to the Senate, especially since USG has already spoken with JSO. We thought we came to the understanding that SJP and JSO are two totally different clubs, and we do not see why their perspective is needed in making a decision on our club (and the same line of reasoning applies to not needing the approval from MSA or any other religious or cultural club). We feel it is unfair that another club at Fordham has been asked to come speak on our behalf in order to impact the vote.

Can you please let us know the purpose of having JSO speak? Specifically, are there any concerns other than what we have already addressed? Since USG did not raise any concerns after our last meeting, we assumed there were no more. Yet, by having JSO come to speak again in front of the Senate, it seems as though there are concerns we have not been told of.[22]

Leighton responded that the Senate was meeting with the JSO because the JSO had previously requested a meeting with USG E-Board and because the Senate was interested in hearing the group’s opinions from the group directly.[23]

At the November 17 hearing, USG asked SJP if they were advocating for the Palestinian Right of Return and the “dismantling of the Israeli state.” SJP was also asked about New York University’s SJP’s flyering of dorm rooms in spring 2014, and whether SJP would partner with JSO at events.[24] A student interested in joining SJP answered by stating that SJP was open to suggestions about their activities on a case-by-case basis, and inquired why a political advocacy organization should be asked to partner with a religious organization.

The USG Executive Board and Senate voted to approve SJP as a club at the Fordham University Lincoln Center Campus that day. In a letter to SJP, USG wrote:

United Student Government invited representatives from both Students for Justice in Palestine and the Jewish Student Organization to hear their perspectives and ask questions to both groups.

After careful deliberation, United Student Government has faith that this chapter of Students for Justice in Palestine at Fordham and its members will positively contribute to the Fordham community in such a way that is sensitive to all students on campus. United Student Government is dedicated to the safety of all students and has faith that Students for Justice in Palestine can function on campus respectfully. This chapter of Students for Justice in Palestine at Fordham fulfills a need for open discussion and demonstrates that Fordham is a place that exemplifies diversity of thought. Their presence will help to create a space for academic discussion and promote intellectual rigor on campus. We do not believe that the presence of Students for Justice in Palestine will take away from efforts to promote a safe environment on our campus.

As with all United Student Government decisions, we welcome all students to voice their concerns and participate in the open dialogue which USG promotes.[25]

Shortly after USG’s decision, Dean Eldredge wrote Ahmad, Gunar, and two other students hoping to be part of SJP, stating that he was informed of the decision to approve the SJP club and that he “now need[s] to review the request before it is finalized.”[26]

On December 2, 2016, SJP’s advisor, Professor Glenn Hendler, met with Dean Eldredge at Dean Eldredge’s request.  At the meeting, Hendler reassured Eldredge that he would be in regular contact with SJP. Eldredge remarked that it was difficult to find information on SJP “that was neutral or objective.” In an email summarizing the meeting, Prof. Hendler said:

I was prepared for that remark, and I told him that I'd spent time reading the Anti-Defamation League's 8-page pdf on SJP, which you can find here. I told him that while this clearly was not an objective source, what was interesting about it was that even this document, which is written in opposition to SJP and is clearly in disagreement with everything SJP stands for, had nothing in it that would lead anyone to say that SJP should not be a recognized student group.[27]

Professor Hendler also informed Eldredge that

[T]he position that advocating for BDS is inherently anti-Semitic is just factually wrong, I said, and the positions taken by SJP that are controversial – for instance, using the analogy with apartheid – are minority positions in the US but not marginal. After all, they are shared by people as different as former president Jimmy Carter and Trump's nominee for defense secretary James Mattis (not that I want to be on his side!).[28]

On December 9, Dean Eldredge wrote students, apologizing for not getting back to them sooner, and stated that “it would be helpful for me to meet with you as the students who are proposing the club before I make a final decision on the club request. I recognize that today is the last day of classes, and I hope that you might have some flexibility on Monday since that is a reading day.”[29]

On December 12, Gunar and another student interested in joining SJP met with Dean Eldredge and Dr. Wenzel. At the meeting, Dean Eldredge and Dr. Wenzel asked the two students:

  • What does BDS mean to you?
  • Does BDS mean the dissolution of the state of Israel?
  • Why use the term apartheid?
  • Does SJP support or work with Jewish Voice for Peace, J Street, and Seeds for Peace?

The two students explained that BDS is a non-violent tactic to pressure the Israeli government to respect Palestinian rights, expressed confusion over what he meant by “dissolution of the state of Israel,” and offered several examples of discriminatory laws and practices in Israel that they believed fit within the legal definition of apartheid. They also replied that they would like to work with Jewish Voice for Peace. At the time, they did not know much about J Street and Seeds for Peace, and replied that they were not planning on working with them.

On December 22, 2016, the last day of the semester, Dean Eldredge wrote Ahmad, Gunar, and two other students hoping to be part of SJP, stating that:

After consultation with numerous faculty, staff and students and my own deliberation, I have decided to deny the request to form a club known as Students for Justice in Palestine at Fordham University. While students are encouraged to promote diverse political points of view, and we encourage conversation and debate on all topics, I cannot support an organization whose sole purpose is advocating political goals of a specific group, and against a specific country, when these goals clearly conflict with and run contrary to the mission and values of the University.

There is perhaps no more complex topic than the Israeli-Palestinian conflict, and it is a topic that often leads to polarization rather than dialogue. The purpose of the organization as stated in the proposed club constitution points toward that polarization. Specifically, the call for Boycott, Divestment and Sanctions of Israel presents a barrier to open dialogue and mutual learning and understanding.

In a statement announcing their vote to approve the club, United Student Government at Lincoln Center acknowledged the need for open, academic discussion and the promotion of intellectual rigor on campus; however, I disagree that the proposal to form a club affiliated with the national Students for Justice in Palestine organization is the best way to provide this. I welcome continued conversation about alternative ways to promote awareness of this important conflict and the issues that surround it from multiple perspectives.[30]

In two follow-up emails, Gunar asked Dean Eldredge for clarification on his decision and inquired about the appeals process. He also asked:

What specifically do you mean by "conflict with and run contrary to the mission and values of the university?" We do not understand how voicing opposition to certain policies of a government – as anti-apartheid activists did in the case of South Africa and as the College Republicans and College Democrats at Rose Hill do all the time – conflicts with the mission and values of the university. What values do we contradict when we oppose discriminatory laws and practices? If Fordham is "committed to research and education that assist in the alleviation of poverty, the promotion of justice, the protection of human rights and respect for the environment," as the mission statement says, we believe that vocally opposing uniquely discriminatory laws and practices holistically embraces the mission and values of the university.[31]

On January 6, 2017, Dean Eldredge informed Awad, Olsen, and students interested in starting SJP that “there is no appeal of my decision,” and invited the students to schedule a meeting to talk or to contact Fordham’s senior vice-presidents with concerns.[32]

Fordham’s Banning of SJP Violates Free Speech Principles and May Violate Civil Rights Protections

Fordham’s justification for banning SJP on the basis that its “sole purpose is advocating political goals of a specific group, and against a specific country” and that the topic of Palestine “often leads to polarization” not only violates the free speech, associational, and academic freedom principles to which Fordham claims to adhere, but also raises civil rights concerns. If left unaddressed, they could also give rise to a violation of Title VI of the Civil Rights Act of 1964.

It is clear, as reflected by comments from Fordham administrators, that Ahmad, Gunar, and the students interested in starting SJP were delayed over a year, interrogated, railroaded, and ultimately censored because some students and faculty disagree with SJP’s viewpoint supporting Palestinian rights, or received pressure from individuals and groups against Palestinian rights.

Since 2015, students interested in starting SJP have spent dozens of hours responding to emails, follow-up questions, delays, requests for meetings, and more questions from Fordham administrators.

Fordham has betrayed principles of free speech to which it promises to adhere. Fordham’s Mission Statement states that it:

guarantees the freedom of inquiry required by rigorous thinking and the quest for truth. . . seeks to foster in all its students life-long habits of careful observation, critical thinking, creativity, moral reflection and articulate expression. . . [and] seeks to develop in its students an understanding of and reverence for cultures and ways of life other than their own.

Fordham is committed to research and education that assist in the alleviation of poverty, the promotion of justice, the protection of human rights and respect for the environment.[33]

While justice for Palestinians may spark complaints because of longstanding issues regarding Israel’s decades-long occupation and denial of Palestinian self-determination, complaints by some who are opposed to the message of Palestinian rights cannot justify the banning of a group while others are allowed to form and meet freely. When Fordham treats a particular viewpoint in a disparate manner based on how much controversy the viewpoint could provoke, it blatantly violates its promise to guarantee freedom of inquiry on campus. When Dean Eldredge decides that BDS is too polarizing to allow students to debate it, he makes a mockery of “rigorous thinking.”

To allow students with one political viewpoint to block the speech of those with whom they disagree is a further insult to Fordham’s guarantee of open inquiry.  Presumably, male professors and misogynists were not asked to opine on the formation of Women in STEM, and Christian professors and anti-marriage equality students did not hold veto power over the Rainbow Alliance club.

Moreover, Dean Eldredge’s reasoning that polarizing student groups cannot be allowed to operate seems to be an exceptional rule applied only to controversy on Israel-Palestine. Fordham has approved several clubs which arguably contribute to “polarization.” For example, advancing LGBTQ+ rights, women’s equality, and the right of Muslims to be in this country are all deeply polarizing issues; even more so given the recent election. Many would argue that Fordham’s College Republicans, whose mission it is “to promote the values of the Republican Party,” including “strong national defense” and “traditional social values,” presents what Dean Eldredge called “a barrier to open dialogue and mutual learning.”[34]

Furthermore, Title VI of the Civil Rights Act prohibits discrimination on the basis of race, color, or national origin by institutions that receive federal funding.[35] A university may lose its federal funding if it treats a student differently because of his/her national origin, resulting in a denial of a student’s educational activities. Fordham’s Nondiscrimination Policy also states that: “Fordham University does not discriminate on the basis of race, color, creed, religion, age, sex, gender, national origin, marital or parental status, sexual orientation, citizenship status, veteran status, disability, gender identity or expression, genetic predisposition, carrier status, or any other basis prohibited by law” and that this policy is “strictly enforced.”[36]

Fordham University administrators denied to Ahmad Awad, a Palestinian-American who has since graduated, the opportunity to share his culture, history, and story of his family’s homeland on an equal basis as other students at Fordham. Fordham has clubs advancing interests, both cultural and political, of African-Americans, Asian-Pacific Islanders, the French, the Greek, the Irish, Italians, Koreans, Germans, Latinos, Poles, and South Asians at its Bronx and Manhattan campuses. For example, Fordham’s Asian Pacific American Coalition “seeks to enlighten the student body about cultural, social, historical, and intellectual pursuits of the Asian Pacific Islander community.”[37] However, a club relating to Palestine and Palestinians was denied status because it planned to express the “political goals of a specific group.”[38] This denied Ahmad his right to an equal education as a Palestinian-American student by preventing him from forming a club related to his national origin, and attaching a stigma to Palestinians that will chill the interest of other students who may wish to explore Palestinian identity and politics. 

There is no justification for this treatment. As a university committed to providing a diverse educational environment, we expect that Fordham will live up to its contractual guarantee of free expression and its obligations under Title VI.

To ameliorate the harm done, we request that Fordham take the following immediate steps:

  1. Immediately permit and facilitate the formation of SJP;
  2. Apologize in writing to the students involved in forming SJP;
  3. Issue a written statement recommitting to guarantees of free speech on campus, including the right to engage in controversial speech, and especially the right to engage in criticism of government policy; and
  4. Ensure equal treatment regardless of national origin and other protected classes.

We are committed to ensuring that the rights of Fordham students are respected, and we expect the same of your Administration. We request a prompt response, but no later than Monday, January 23, 2017.

Sincerely,

Maria C. LaHood                                                  Radhika Sainath                                             
Deputy Legal Director                                         Staff Attorney           
Center for Constitutional Rights                    Palestine Legal
                                                                                    Cooperating Counsel
                                                                                    Center for Constitutional Rights

cc: Jeffrey Gray, Senior Vice President for Student Affairs
      Michele Burris, Associate Vice President for Student Affairs



[1] Gunar Olsen first inquired about starting a student club on July 8, 2015. Email from Gunar Olsen to Dorothy Wenzel, Director of the Office of Student Leadership and Community Development and New Student Orientation (July 8, 2015) (on file with Palestine Legal).

[2] Students for Justice in Palestine, Constitution.

[3] The executive board applicants for the current 2016-17 academic year were: Ahmad Awad, Gunar Olsen, and two other students. Three of these four members are students of color, and two are Muslim.

[4] Email from Ahmad Awad to Dorothy Wenzel (Apr. 5, 2016) (on file with Palestine Legal).

[5] Email from Gunar Olsen to Kayla Wolf (Oct. 27, 2016) (on file with Palestine Legal).

[6] Email from Kayla Wolf, Vice President of Operations for USG to Gunar Olsen (Sept. 11, 2016) (on file with Palestine Legal).

[7] Email from Dorothy Wenzel to Ahmad Awad (Sept. 20, 2016) (on file with Palestine Legal).

[8] Id.

[9] Email from Gunar Olson to Dorothy Wenzel (Sept. 21, 2016) (on file with Palestine Legal).

[10] Email from Dorothy Wenzel to Gunar Olsen (Sept. 22, 2016) (on file with Palestine Legal).

[11] Email from Gunar Olsen to Keith Eldredge, Dorothy Wenzel, and USG Operations Committee (Oct. 6, 2016) (on file with Palestine Legal).

[12] Email from Gunar Olson to Dorothy Wenzel (Oct. 14, 2016) (on file with Palestine Legal).

[13] Email from Keith Eldredge to Gunar Olsen et al. (Oct. 14, 2016) (on file with Palestine Legal).

[14] Fordham University, Operations Committee, n.d. http://www.usgrh.info/committees/operations; Fordham USG Club Registration Packet, n.d., available at http://www.usgrh.info/committees/operations.

[15] According to students, the document provided them on October 21, 2015 and again on October 5, 2016 stated: “After all revisions to the constitution have been made in accordance with constitutional guidelines, the packet will be submitted to the Director of the Office for Student Involvement and then to the Dean of Students. Once the club’s constitution is approved by the Director of the Office for Student Involvement and the Dean of Students, the packet will be given to the USG Senate for their recommendations and approval.”

[16] N.Y. Exec. Order 157 (2016).

[17] N.Y. City Council Res. 1058-A (2016).

[18] Email from Gunar Olsen to Kayla Wolf (Oct. 28, 2016) (on file with Palestine Legal).

[19] Email from Leighton Magoon, USG President to Ahmad Awad et al. (Oct. 31, 2016) (on file with Palestine Legal).

[20] Email from Kayla Wolf to Ahmad Awad, Gunar Olsen, et al. (Nov. 13, 2016) (on file with Palestine Legal).

[21] Email from Kayla Wolf to Ahmad Awad, Gunar Olsen, et al. (Nov. 16, 2016) (on file with Palestine Legal).

[22] Email from Ahmad Awad to Kayla Wolf (Nov. 16, 2016) (on file with Palestine Legal).

[23] Email from Leighton Magoon, to Ahmad Awad et al. (Nov. 16, 2016) (on file with Palestine Legal).

[24] See, Palestine Legal, “NYU: SJP Investigated Over Human Rights Flyers,” Mar. 10, 2015,  http://palestinelegal.org/case-studies/2015/3/4/new-york-university.

[25] United Student Government at Lincoln Center, “Re: Students for Justice in Palestine” (Nov. 17, 2016) (on file with Palestine Legal).

[26] Email from Keith Eldredge to Gunar Olsen et al. (Nov. 17, 2016) (on file with Palestine Legal).

[27] Email from Glenn Hendler to Ahmad Awad, Gunar Olsen, et al. (Dec. 2, 2016) (on file with Palestine Legal).

[28] Id.

[29] Email from Keith Eldredge to Gunar Olsen et al. (Dec. 9, 2016) (on file with Palestine Legal).

[30] Email from Eldredge to Ahmad Awad, Gunar Olsen, et al. (Dec. 22, 2016) (on file with Palestine Legal).

[31] Email from Olsen to Eldredge (Dec. 23, 2016) (on file with Palestine Legal).

[32] Email from Eldredge to Gunar Olsen et al. (Dec. 22, 2016) (on file with Palestine Legal).

[33] Fordham University, “Mission Statement,” n.d., http://www.fordham.edu/info/20057/about/2997/mission_statement (emphasis added).

[34] Fordham University, “College Republicans,” https://orgsync.com/39695/chapter.

[35] 42 U.S.C. §2000d (1964).

[36] Fordham University, “Nondiscrimination,” n.d., http://www.fordham.edu/info/22823/discrimination.

[37] Fordham University, “Asian Pacific Coalition,” n.d., http://fordhamlc.orgsync.com/org/asianpacificamericancoalition36894.

[38] Email from Eldredge to Ahmad Awad, Gunar Olsen, et al. (Dec. 22, 2016) (on file with Palestine Legal).

 

Via Email

January 26, 2017

Jeffrey L. Gray
Vice President for Student Affairs
Fordham University

Re: Ban on Students for Justice in Palestine at Fordham University

Dear Vice President Gray,

We write in response to your January 20, 2017 letter concerning Fordham University’s decision to deny Students for Justice in Palestine (SJP) associational status. Your letter misconstrues the facts, misunderstands the law, and ignores Fordham’s contractual obligations to respect students’ freedom of expression, as promised in various University policies.

  1. Fordham’s SJP Ban Violates Free Speech and Associational Principles

In your letter, you state that the decision to deny SJP club status “was based on the fact that chapters of this organization have engaged in behavior on other college campuses that would violate this University’s student code of conduct.” You also stated that you “asked [students] to change the name of the proposed club and to distance themselves from the national organization, our students declined to do so.” Your letter reflects a deep misunderstanding of freedom of association and speech principles to which Fordham promises to adhere.

Fordham’s mission statement “guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.”[1] The university’s demonstration policy recognizes the value of dissent and promises to uphold freedom of expression, noting that, “[e]ach member of the University has a right to freely express his or her positions and to work for their acceptance whether he/she assents to or dissents from existing situations in the University or society.”[2]  According to its own policies, Fordham may not infringe on the rights of students “to express their positions” and engage in “other legitimate activities.” [3] This is because Fordham “values freedom of expression and the open exchange of ideas. The expression of controversial ideas and differing views is a vital part of University discourse.”[4]

Fordham holds itself out as a place where students can “get involved” “in things like clubs (we’ve got more than 160)” and promises that much growth will occur outside the classroom, “from your engagement with the community and the people in it.”[5] The opportunity for, and the importance of, student clubs are emphasized throughout Fordham’s website, which states that: “By registering and supporting a wide variety of clubs and organizations . . . the University reinforces its commitment to stimulate the intellectual and personal growth of its students.”[6] Moreover, various rights of expression guaranteed by the University are contingent on the expression coming from a registered student organization or club, including distribution of literature,[7] posting of materials,[8] and inviting guest speakers to campus.[9] Students who seek club status for SJP are also denied these and other basic rights to express themselves at Fordham.    

In Healy v. James, the Supreme Court held that the denial of student group status based on the actions of a national group violates associational rights under the First Amendment.[10] The facts in Healy v. James find apt analogue to this one. During a time of great political unrest in the 1960s, students at Central Connecticut State College applied to start a Students for a Democratic Society (SDS) chapter on campus. Though the students expressly stated that their group was not under the dictates of a national organization, the college president rejected a committee’s recommendation to approve the group, stating that the group would be a “disruptive influence,” “contrary to the orderly process of change” on campus and doubted the group’s independence from the national organization.[11]

In finding that the president’s decision violated the associational rights of students, the Supreme Court noted that the college bore a “heavy burden” of proof as to whether its action was appropriate – a burden which was not met by simply alleging that some SDS chapters had engaged in disruptive campus activity in other places.[12]

[G]uilt by association alone, without establishing that an individual's association poses the threat feared . . . is an impermissible basis upon which to deny First Amendment rights . . . The government has the burden of establishing a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims.[13]

Noting that the First Amendment protects the “right of individuals to associate to further their personal beliefs,” the Court found that “[t]here can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.”[14]

As in Healy, and noted in our January 17th letter, students interested in starting SJP at Fordham repeatedly declared their complete independence from National Students for Justice in Palestine (NSJP) and SJP chapters on other campuses. Students explained that their group would not be beholden to the national body, nor would any of their actions have to be approved by NSJP. The students confirmed with NSJP that NSJP is a separate, student-run organization which organizes annual conferences but otherwise is independent of campus SJP organizations, and submitted this information to Fordham. NSJP’s website also clearly states “we do not dictate to SJP chapters: all individual SJPs are autonomous student orgs on their respective campuses.”[15]

Denying SJP club status at Fordham based on actions of the national group or other chapters violates the free speech and associational principles to which Fordham promises to adhere. Regardless of whether private universities are bound by the First Amendment, Fordham is presumably committed to the rights to free speech and association which it guarantees. Moreover, it appears that Fordham’s banning of SJP on the basis of allegations of activities of other chapters is a standard that only applies to SJP. In recent times, student groups across the country have protested – and often disrupted – talks by neo-Nazis, ethno-nationalists, and right-wing hate groups. Yet it appears that only SJP is being censored for the actions (or in this case, allegations) of independent groups which bear the same name.

2. NSJP, a separate, independent organization, has not engaged in “disruptive” activity

Besides Supreme Court precedent that First Amendment rights cannot be denied based on association alone, and the fact that SJP is autonomous from NSJP and other SJPs, it is not clear what “disruptive” activity NSJP – or any other SJP chapter – has engaged in that would violate Fordham’s code of conduct. Your letter makes only vague and unsupported allegations that “SJP’s actions at other campuses have actually attempted to restrict speech” – citing no examples of where such “actions” occurred, what they were, or who Fordham believes committed them.

Your letter separately mentions “the national organization.” NSJP organizes national conferences where students around the country supporting Palestinian rights gather to discuss issues relating to Israel/Palestine. It is unclear how organizing national conferences on one of the most important foreign policy discussions of the day violates Fordham’s code of conduct.

On separate occasions, Fordham students interested in starting an SJP were questioned on the 2014 activities of New York University Students for Justice in Palestine (NYU-SJP), when the student president of an Israel advocacy group falsely accused NYU-SJP of targeting Jewish dorms with flyers highlighting Israel’s policies of demolishing Palestinian homes. These false statements were repudiated by NYU officials, and no disciplinary action was taken against SJP or any student affiliated with SJP or involved in distributing the flyers.[16]

It is true that Israel advocacy organizations, some of whom have applauded your decision to ban SJP at Fordham, have brought numerous unsubstantiated and meritless complaints against SJPs, and other groups supporting Palestinian rights, at other schools. Most recently, in New York City, an independent fact-finding investigation conducted by a formal federal judge and prosecutor found that SJP had engaged in no misconduct after the Zionist Organization of America demanded the City University of New York (CUNY) ban SJP from all campuses.[17] In a detailed report, the investigation stressed that: “Political speech is often provocative and challenging, but that is why it is vital to university life. If college students are not exposed to views with which they may disagree, their college has short-changed them.”[18] 

For more information about widespread attempts to suppress Palestinian rights advocacy in the United States, especially on college campuses, please see our attached report, The Palestine Exception to Free Speech: A Movement Under Attack in the US, which details numerous examples of baseless complaints and false and inflammatory accusations against Palestinian rights advocates. Fordham students interested in starting an SJP should not be banned for the actions of (much less allegations against) unaffiliated SJP chapters – any more than the College Republicans should be banned for the actions of President Donald Trump.

3. There is no “civility” exception to free speech

Your letter mentions that political dialogue must take place within “norms of civility.” The use of the vague and highly subjective concept of “civility” has been at the center of a number of campus controversies. For example, University of California, Berkeley Chancellor Nicholas B. Dirks faced criticism in September 2014 after issuing a statement pitting “civility” against “freedom of speech.” Not only did faculty respond fiercely, but the Chancellor’s statement was roundly rejected in the pages of the Wall Street Journal,[19] the Los Angeles Times,[20] Inside Higher Education,[21] Salon,[22] the Chronicle of Higher Education,[23] and the Washington Post,[24] forcing him to backtrack in a subsequent clarification.[25]

Courts are also hostile to the concept of “civility” at universities, regularly holding that punishment for “incivility” violates the First Amendment. For example, in 2006, San Francisco State University (SFSU) opened an investigation into whether a student organization — the College Republicans — violated the Student Code of Conduct by failing to be “civil” in its interactions with others on campus. The College Republicans sued SFSU in federal court for unconstitutionally chilling its speech through an investigation. The College Republicans prevailed; in his ruling, federal magistrate Judge Wayne D. Brazil made clear that requiring “civility” on campus at threat of investigation or sanction is unconstitutional:

[A] regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause.[26]

Claims of civility have also been rejected in the context of speech on behalf of Palestinian rights. In 2014, Professor Steven Salaita was terminated from a tenured position at the University of Illinois at Urbana-Champaign, which claimed that his personal tweets criticizing the Israeli government’s assault on Gaza were “uncivil.” The Center for Constitutional Rights represented Professor Salaita in his case against the university, and the federal court refused to dismiss the case, finding that the university’s attempt to distinguish between the “incivility” of the tweets “and the views those tweets presented [was] unavailing.”[27] The court further found that the “tweets’ contents were certainly a matter of public concern, and the topic of Israeli-Palestinian relations often brings passionate emotions to the surface.”[28]

The label of incivility has historically been used against unpopular groups, and often those seeking social justice, such as peaceful civil rights protesters in the1960s. It is precisely when debate is passionate, however, that university administrators must steward an open campus forum and be cognizant of “the dependence of a free society on free universities,” as the U.S. Supreme Court has said.[29] When core beliefs are contested and debated, university leaders must guarantee the conditions necessary for free debate on campus, and must assure that expression on matters of public concern is not only tolerated, but invited. Debate, disagreement, and free expression, including protests, demonstrations, and other expressive activities organized by student groups, embody the highest values of a free university and a democratic society. Attempts to prevent or punish speech because it may be considered “uncivil” violates Fordham’s guarantees of free expression, contravenes academic freedom, and stifles debate.

4. Fordham’s banning of SJP raises concerns under Title VI of the Civil Rights Act

Your letter did not address our concern that Fordham discriminated under Title VI of the Civil Rights Act by denying Ahmad Awad, a Palestinian-American who has since graduated, the opportunity to share his culture, history, and story of his family’s homeland on an equal basis as other students at Fordham. As Ahmad recently explained: “I was devastated to discover that Fordham would prohibit SJP — and, even worse, do so not because of any bad behavior, but simply because of what it represents on paper.”[30]

What SJP “represents on paper” is the idea that Palestinians like Ahmad deserve justice and to be afforded the same rights as everyone else. As a university committed to providing a diverse educational environment free from discrimination, we expect that Fordham will live up to its contractual guarantee of free expression and its obligations under Title VI by immediately permitting and facilitating the formation of SJP. We also reiterate our requests that Fordham apologize to the students involved, expressly recommit to guarantees of free speech and association on campus, and ensure equal treatment regardless of protected class.

5. Conclusion

We hope that Fordham will treat freedom of speech not as a burden or a legal limitation, but, rather, as a foundational value that enables searching scholarship and democratic governance. We would be happy to schedule a meeting with you to discuss these matters at your earliest convenience, along with students interested in starting an SJP. We look forward to your prompt response.

Sincerely,

Maria C. LaHood                                                  Radhika Sainath                                             
Deputy Legal Director                                         Staff Attorney           
Center for Constitutional Rights                    Palestine Legal
                                                                                    Cooperating Counsel
                                                                                    Center for Constitutional Rights

cc: Rev. Joseph M. McShane, S.J.



[1] Fordham University, “Mission Statement,” n.d., https://www.fordham.edu/info/20057/about/2997/mission_statement (emphasis added).

[2] Fordham University, “Demonstration Policy,” n.d., https://www.fordham.edu/info/21684/university_regulations/3709/demonstration_policy (emphasis added).

[3] Id.

[4] Fordham University, “Bias-Related Incidents and/or Hate Crimes,” n.d., https://www.fordham.edu/info/21684/university_regulations/6566/bias-related_incidents_andor_hate_crimes.

[5] Fordham University, “Student Life,” n.d., https://www.fordham.edu/info/20015/student_life.

[6] Fordham University, “Student Leadership and Community Development,” n.d., http://216.230.117.32/section3/section55/index.html.

[7] Fordham University, “Distribution of Literature,” n.d., https://www.fordham.edu/info/24226/a_-_z_listing/3710/distribution_of_literature

[8] Fordham University, “Publicity and Posting,” n.d., https://www.fordham.edu/info/24226/a_-_z_listing/3733/publicity_and_posting.

[9] Fordham University, “Speakers Policy,” n.d., https://www.fordham.edu/info/24226/a_-_z_listing/3740/speakers_policy.

[10] Healy v. James, 408 U.S. 169 (1972).

[11] Id. at 173, 179.

[12] Id. at 186-87. (“Not only did petitioners proclaim their complete independence from this organization, but they also indicated that they shared only some of the beliefs its leaders have expressed. On this record it is clear that the relationship was not an adequate ground for the denial of recognition.”)

[13] Id. at 186 (internal quotations and citations removed).

[14] Id. at 181.

[15] National Students for Justice in Palestine, “About Us,” n.d., http://www.nationalsjp.org/about.html (emphasis in original).

[16] See Palestine Legal, “Cases,” Mar. 10, 2015, http://palestinelegal.org/case-studies/2015/3/4/new-york-university; Palestine Legal & the Center for Constitutional Rights, THE PALESTINE EXCEPTION TO FREE SPEECH (2015) (“Palestine Exception”), http://palestinelegal.org/the-palestine-exception-appendix#nyu1.

[17] Press Release, Palestine Legal, Independent Investigation Clears CUNY Students for Justice in Palestine (Sept. 12, 2016), http://palestinelegal.org/news/2016/9/12/press-release-independent-investigation-clears-cuny-students-for-justice-in-palestine?rq=CUNY.

[18] Judge Barbara Jones and Paul Shechtman, REPORT TO CHANCELLOR MILLIKEN ON ALLEGATIONS OF ANTI-SEMITISM (Sept. 6, 2016), http://www2.cuny.edu/wp-content/uploads/sites/4/page-assets/news/newswire/assets/CUNYReport.pdf.

[19]  Greg Lukianoff, Free speech at Berkeley-so long as it’s ‘civil’, WALL STREET JOURNAL, Sep. 8, 2014, http://online.wsj.com/articles/greg-lukianoff-free-speech-at-berkeleyso-long-as-its-civil-1410218613.

[20]  Michael Hiltzik, Free speech, civility, and how universities are mixing them up, LOS ANGELES TIMES, Sep. 9, 2014, http://www.latimes.com/business/hiltzik/la-fi-mh-free-speech-civility-20140909-column.html.

[22]  David Palumbo-Liu, Civility is for suckers: Campus hypocrisy and the ‘polite behavior’ lie, SALON, Sep. 10, 2014, http://www.salon.com/2014/09/10/civility_is_for_suckers_campus_hypocrisy_and_the_polite_behavior_lie/.

[23]  Peter Schmidt, Please for civility meet cynicism, CHRONICLE OF HIGHER EDUCATION, Sep. 10, 2014, http://chronicle.com/article/Pleas-for-Civility-Meet/148715/.

[24]  Eugene Volokh, Free speech and civility at universities, WASHINGTON POST, Sep. 9, 2014, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/09/free-speech-and-civility-at-universities/.

[25]  Ken White, Follow-up: U.C. Berkeley Chancellor Nicholas Dirks Gets Free Speech Right This Time, POPEHAT, Sep. 12, 2014, http://www.popehat.com/2014/09/12/follow-up-u-c-berkeley-chancellor-nicholas-dirks-gets-free-speech-right-this-time/.

[26] See, e.g., College Republicans at San Francisco State University v. Reed, 523 F.Supp.2d 1005, 1019 (N.D. Cal. 2007).

[27] Salaita v. Kennedy, 118 F. Supp. 3d 1068, 1082 (N.D. Ill. 2015), citing Cohen v. California, 403 U.S. 15, 26 (1971) (finding “Fuck the Draft” jacket protected by the First Amendment).

[28] Salaita,118 F. Supp. 3d at 1083.

[29] Sweezy v. New Hampshire, 354 U.S. 234, 262 (1957).

[30] Ahmad Awad, Op-Ed., Fordham Flunks Free Speech Test, N.Y. DAILY NEWS, Jan. 23, 2017, http://www.nydailynews.com/opinion/fordham-flunks-free-speech-test-article-1.2951921.

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