Israel lobby groups are attempting to use US civil rights law to stifle speech critical of Israeli policies and clamp down on Palestine solidarity student activism across US campuses, claiming such speech and activism is “anti-Semitic.”
But a strongly-worded letter sent on Monday directly to the Department of Education from a major US civil rights organization states that such usage of the 1964 Civil Rights Act “raises constitutional red flags that are significant and alarming.”
As The Electronic Intifada has reported, several complaints have been made by Israel-aligned organizations to the Department of Education’s Office of Civil Rights (DOE-OCR), claiming prejudice against Jewish students because of Palestine solidarity-related activism — what they say is a violation of Title VI, which protects students against discrimination based on race or ethnic background.
This “lawfare” tactic has been pioneered and coordinated by Kenneth Marcus, a pro-Israel activist who previously headed the DOE-OCR, which handles such complaints.
As I reported several months back, US Secretary of Education Arne Duncan responded to campaigns by Israel lobby groups (including the Zionist Organization of America and the Anti-Defamation League) by announcing a new set of guidelines in 2010 that specifically applies Title VI to the protection of Jewish students from perceived “anti-Semitism” on campuses.
Since then, Title VI complaints have been filed by Israel-aligned groups and individuals, who claim that Jewish students on campuses face anti-Semitism, harassment and intimidation because of activism by Students for Justice in Palestine and Muslim student groups. Most notably, the DOE has started its investigation into a complaint filed by Jewish-Zionist students at the University of California at Berkeley last July.
The original complaint, filed against the University of California itself, attempted to make connections between SJP and the Muslim Student Union and Hamas, and compared the climate on UC Berkeley campus to that of the Holocaust. The lawsuit was thrown out by a judge because of a significant lack of evidence. However, undeterred, the students re-filed the complaint as aTitle VI claim with the DOE.
ACLU’s letter to Department of Education
On Monday, Alan Schlosser, the legal director of the American Civil Liberties Union of Northern California (ACLU-NC) sent a letter addressed to Gemini McCasland of the Department of Education’s Office of Civil Rights, on the topic of the Title VI complaint filed by the UC Berkeley students. The ACLU has, until now, been relatively silent on the topic. (Though, ten years ago, the ACLU did send a letter to the then-Chancellor of UC Berkeley condemning the University’s punitive and selective reaction to a Students for Justice in Palestine sit-in on campus, classifying it as having a “chilling effect on free speech.”)
In this week’s letter, Schlosser states that the Office of Civil Rights’ investigation into the Title VI complaint “does not take place on a blank slate” and refers back to the fact that the original lawsuit was dismissed, and that student activism speech was upheld as protected speech under the First Amendment.
The letter adds:
In light of the centrality of the First Amendment’s presumption against content discrimination and viewpoint discrimination, it is striking (and frankly shocking) that the complaint so extensively relies on protected political speech as evidence of actionable harassment. The Complaint is based on two premises that are legally unsupportable:
- That speech and expressive conduct that expresses opposition to the policies and actions of the State of Israel or the ideals of Zionism are, in and of themselves, equivalent to antisemitism and “hate speech;” and
- That the University (or OCR) can sanction or prohibit core political expression because its message may be deeply offensive, disturbing or even hateful to a particular group of students, in this case Jewish students.
As the Complaint plainly demonstrates, these premises, if accepted, can foster government restriction of speech based on content and viewpoint that goes far beyond controlling legal precedent.
The conflict between Israelis and Palestinians has been and remains today a dangerous and seemingly intractable international crisis. Thus, it is not surprising that this controversy has played itself out on college campuses in this country; in fact, it would be disturbing if it had not evoked student activism and heated controversy.
The letter ends with a very strong analysis of the impact that such lawfare tactics are having on students who wish to engage in Palestine solidarity activism on their campuses (for more on this, listen to Liz Jackson of the Center for Constitutional Rights and the National Lawyers’ Guild on our podcast on Monday):
Our concerns in this regard are not hypothetical. OCR has been investigating allegations of an anti-Semitic educational environment at UC Santa Cruz since March 2011. That investigation is based on a 29-page complaint that almost exclusively references expressive activities and campus debate about the Israeli-Palestinian conflict.
That such protected free speech activities have been part of an investigation for 20 months is disturbing in view of the chilling effect that it can have on students who want to join, or continue to participate in, similar political activities in the future. The possibility that students at UC Santa Cruz (and now UC Berkeley) may feel reluctant or deterred from engaging in such activities at this moment, when these issues have returned to the world’s center stage, is troubling and should impel OCR to expedite the resolution of both investigations.
The ACLU’s stance against repression of students’ free speech rights comes at a very important time. As state legislative bodies pass resolutions upholding the dangerous notion that criticism of Israel is an act of anti-Semitism, and as University administrations contribute to a climate of fear and intimidation of Arab and Muslim students on campus, now is the time when counter-pressure by civil rights groups upholding Constitutional rights and free speech matters most.
The entire letter can be viewed here: