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Victory for campus free speech as US Dept. of Education throws out “anti-Semitism” complaints

(This version contains updates from the initial post; see below)

In a major victory for free speech and Palestine solidarity activism on California campuses, the US Department of Education has thrown out legal claims filed by Zionist students against the University of California at Berkeley, the University of California at Santa Cruz and the University of California at Irvine.

The claim against UC Berkeley alleges that Jewish students faced a “hostile” and “anti-Semitic” atmosphere on campus because of Palestine solidarity activism and Muslim student organizing — allegations which the current chancellor at UC Berkeley stated on Tuesday are “entirely unfounded.”

The complaint was filed under Title VI of the 1964 Civil Rights Act, which protects students against discrimination based on race or ethnic background. Israel-aligned groups and individuals have claimed that Jewish students face anti-Semitism, harassment and intimidation because of activism by Students for Justice in Palestine and Muslim student groups, and have filed claims with the Department of Education alleging violations of Title VI.

This “lawfare” tactic has been pioneered and coordinated by Kenneth Marcus, a pro-Israel activist who previously headed the Department of Educations’ Office of Civil Rights, which handles such complaints. Earlier this year, I joined a panel discussion with several organizers of Students for Justice in Palestine to debate Marcus and the use of Title VI on Al Jazeera’s program The Stream.

“Red flags”

In December 2012, the ACLU condemned the various Title VI claims in a letter to the Department of Education, stating that such usage of the 1964 Civil Rights Act “raises constitutional red flags that are significant and alarming.”

Nearly a year before, the University of California’s former president, Mark Yudof, who is a staunch ally of Israel, rejected the notion that Jewish students face a hostile climate that violates their civil rights.

“Entirely unfounded”

The Title VI complaint at UC Berkeley was filed by Zionist students last year after a suit against the University of California’s governing body, the Regents, was thrown out by a judge because of a significant lack of evidence. The original complaint attempted to make connections between Students for Justice in Palestine and the Muslim Student Union and Hamas, and compared the climate on UC Berkeley campus to that of the Holocaust. However, despite the suit being thrown out, the students re-filed the complaint as a Title VI claim with the Department of Education’s Office of Civil Rights.

The Daily Californian reported on Tuesday evening that:

The Office of Civil Rights, which investigated the complaint, reached the same conclusions as the judge in the previous lawsuit did. The department said that the protests were “expression on matters of public concern” and that “exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience.”

The office concluded that the events described by the complainants do not constitute harassment. The petitioners argued that the protests, which included mock military checkpoints and the defacement of a sign belonging to a Jewish student group, created a hostile campus climate and that the university should have taken greater action to stop them.

In a statement Tuesday, Chancellor Nicholas Dirks said the claim that there is a hostile environment for Jewish students at UC Berkeley is “entirely unfounded.”

The entire statement by the Department of Education is available here.

Legacy of failure

This is not the first time that Israel lobby groups have failed in their attempts to use civil rights law to smear Palestine activism and stifle discussion of Israel’s policies.

In January 2012, the Department of Education threw out a Title VI complaint against Barnard College, which alleged that an academic advisor had “steered” a student away from taking a class taught by Professor Joseph Massad at Columbia University, because the student is Jewish.

And the filing of Title VI claims to allege that Jewish students’ rights are being violated because of campus activism has been heavily criticized even within Zionist and pro-Israel circles.

As the opposition’s attempts to criminalize, censor and deflect speech critical of Israel continue to fail, Palestine solidarity activism continues to grow — especially on college campuses. And with this Title VI claim being tossed out after years of having a chilling effect, student organizers warmly welcome the vindication of their rights.

Husam, a recent graduate of UC Berkeley, told me that he was “happier than I expected to be” after hearing the news that the Title VI claim had been tossed out.

“In the context of solidarity work, students can move forward from this [and] can more comfortably advocate knowing that, on more than one occasion, legal authorities across different jurisdictions have ruled to protect their free speech rights.”

UPDATE: Two other Title VI claims thrown out as well

In a breaking update, civil rights groups stated earlier today that the Department of Education has also thrown out two additional, separate claims filed by Zionist groups against the University of California at Santa Cruz and the University of California at Irvine

A statement from UC Santa Cruz can be viewed here, and the Department of Education’s letter in which the Title VI complaint has been officially dismissed can be viewed here.

In a press release from the Center for Constitutional Rights, attorney Nasrina Bargzie of Advancing Justice-Asian Law Caucus said that “The organized legal bullying campaigns have failed.” Bargzie, alongside attorneys from Council on American-Islamic Relations (CAIR), the Center for Constitutional Rights (CCR) and the National Lawyers Guild (NLG), advocated for the students whose activism was scrutinized in the investigations. Bargzie added:

OCR’s decision in these cases confirms the obvious — that political activity advocating for Palestinian human rights does not violate the civil rights of Jewish students who find such criticism offensive, and that, to the contrary, colleges and universities have an obligation to create an environment that supports freedom of expression.

The dismissal of these Title VI claims also deal a significant blow to the Amcha Initiative, an anti-Palestinian incitement group that has filed a Title VI claim with the Department of Education alleging that Jewish students face harassment because of Palestine solidarity activism. 

Amcha’s co-founder, Tammi Rossman-Benjamin, has claimed that students involved in Palestine solidarity organizing have ties to “terrorist organizations” and made other racist assumptions, which were caught on video. (Students at the University of California at Santa Cruz, where Rossman-Benjamin works as a lecturer, launched a campaign calling on the university to condemn her shocking hate speech.) 

Rebecca Pierce, a recent graduate of UC Santa Cruz and a member of the Committee for Justice in Palestine, said in the Center for Constitutional Rights’ press release that:

Students have faced a pervasive stigma that at times negatively impacted our ability to fundraise and hold events on campus, and even intimidated some of our peers into silence. … However, we feel vindicated that the DOE has rejected this attack on our freedom of expression, and we will continue to advocate in accordance with our values regarding human rights and social justice.

And Liz Jackson, cooperating counsel with the Center for Constitutional Rights and the Palestine Solidarity Legal Support Initiative added: 

The First Amendment unequivocally protects the activities that were targeted in these complaints — holding demonstrations, distributing flyers, street theatre — criticizing the governmental policy of the State of Israel and supporting Palestinian human rights. It is long past time that students engaging in First Amendment activities are able to do so without fear.

…While there continue to be threats of Title VI complaints against other universities, we are confident that OCR recognizes these claims as attempts to silence certain speech on Israel/Palestine, and do not present viable claims of discrimination against Jewish students.  

The ACLU of Northern California also posted an update, stating: 

This important decision sends a message to universities and colleges around the country: that the campus must continue to serve its traditional role as a place where student activists can speak out strongly on controversial issues without facing discipline or arrest.

Finally, Students for Justice in Palestine-West stated: “It is a great day to be a Palestine campus solidarity activist. … The use of civil rights law to stifle Palestinian solidarity activism on California campuses has seen a major defeat today.”

Comments

Despite the setback by the decision, Jewish and Pro-Israel students face discrimination on a daily basis when they merely express or display their opinion. I've read the articles on this site about the "pressure" Israel puts upon the world and you complain about that -- but you don't see anything wrong with pro-Palestinian students or campus professors harassing or belittling pro-Israel students on campus. We need to talk to and respect one another -- being "occupied" is also a state of mind. We are responsible for each other. And I will never stop fighting in my commitment to stop one side from bullying another because they think you have the moral right to do so. Jews and Arabs need to learn to live together -- but igniting hatred in the name of the "cause" is bogus and a waste of time.