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Did Brooklyn College violate the First Amendment?
By ALAN M. DERSHOWITZ
02/14/2013
The sword of co-sponsorship may have become a shield to protect the First Amendment rights of students who were prevented from handing out anti-BDS leaflets.
 
The co-sponsorship by the Brooklyn College political science department of an anti-Israel hate fest, from which pro-Israel students were excluded, may have violated the First Amendment to the US Constitution.

Had the event been sponsored only by student and outside private groups, their decision to exclude pro-Israel students and to prevent the distribution of anti-boycott, divestment and sanctions leaflets would have been a private matter that at worst may have violated the rules of the college. But the official co-sponsorship of the event by an academic department may have turned their exclusionary decisions into illegal “state action.”

For purposes of the First Amendment, the political science department is Brooklyn College, which is the City University of New York, which is the State of New York. It was the State of New York, therefore, that expelled pro-Israel students who wanted to distribute constitutionally protected leaflets and wanted to pose constitutionally protected political questions.

Such state action violates the First Amendment and New York law.

Accordingly, the benighted action of the political science department in taking sides in the debate over boycotting Israeli academics and institutions may now come back to haunt the City University of New York, which is taking this situation seriously. The chancellor issued the following statement: “At last week’s event at Brooklyn College, sponsored by Students for Justice in Palestine and the College’s Department of Political Science, allegations were made by members of the college community who attended that they were impeded from expressing views either orally or in writing. There were reports that some said they were asked without cause to leave the event.

If this were true, it was wrong and we need to understand exactly what the circumstances were. At the request of President Karen L. Gould, I have asked General Counsel and Senior Vice Chancellor for Legal Affairs Frederick P. Schaffer to quickly investigate these allegations. This investigation will be coordinated by CUNY’s Office of Legal Affairs, working with an independent consultant, and charged with reporting directly back to me.”

There is, apparently, strong evidence to corroborate the accounts that pro-Israel students, especially those wearing yarmulkes or “looking” Jewish, were deliberately excluded, even though they secured written permission to attend. There is also corroboration of the accusation that pro-Israel students who managed to get into the event were thrown out when they refused to turn over to the organizers anti-BDS leaflets they wished to distribute.

When these students complained to an official of the college, he reportedly replied that the anti-Israel students who were running the event were “calling the shots” and he could therefore do nothing.

But once the political science department became involved as a co-sponsor, the students alone could not call the shots, when it comes to the First Amendment.

The university assumed responsibility for assuring that the free speech of all students was equally protected. The First Amendment forbids the State of New York from discriminating against pro-Israel or anti-BDS speech, as it apparently did here.

What happened at Brooklyn College demonstrates the wisdom of keeping academic departments from sponsoring non-academic hate fests, such as the BDS event. When academic departments become selective sponsors, the constitutional rules change, because the imprimatur of the university – and thus the state – is placed on the event.

The radical anti-Israel students who arranged the BDS conference thought they had obtained a benefit from the political science department’s co-sponsorship – and perhaps they did in the short term. But in the long term, they may rue the day they persuaded the department to become involved in what should have been a student event. Now there may be legal consequences.

The sword of co-sponsorship may have become a shield to protect the First Amendment rights of the students who were prevented from handing out anti-BDS leaflets and asking anti-BDS questions. I wonder if we will hear from Mayor Michael Bloomberg and The New York Times editorial board about these violations of freedom of speech.

The writer is a professor of law at Harvard University.
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