ACLU: Complaint targeting Palestine activism on campus raises ‘constitutional red flags’

Mock checkpoint
Students for Justice in Palestine protesters at a mock checkpoint in Berkeley
(Photo: Tony Zhou/The Daily Californian)

An American Civil Liberties Union (ACLU) branch has sent a letter to the U.S. Department of Education addressing what the civil liberties group calls “constitutional red flags” contained in a civil rights complaint against the University of California, Berkeley. The July complaint against Berkeley alleges that the university has allowed a “hostile environment” for Jews on campus that results from Palestine solidarity activism like mock checkpoints and Israeli Apartheid Week.

“The allegations of this Title VI complaint reflect either a profound misunderstanding of the First Amendment, or an attempt to persuade the government to use its power to restrict speech based on its content and political viewpoint,” the letter from the ACLU reads. Title VI is contained in the Civil Rights Act of 1964, and prohibits discrimination at places that are federally funded. 

The U.S. Department of Education opened an investigation into the complaint in October, though they emphasized that opening an inquiry into the matter “in no way implies that [the office] has made a determination with regard to its merits.” But the ACLU of Northern California remains concerned about the complaint, which they say targets political speech and could have a chilling effect on activism on campus in the future.

The letter, authored by ACLU Northern California legal director Alan L. Schlosser, was sent to the Department of Education on December 10. Beyond the content of the letter, it is significant that the ACLU is taking a stand on the issue.

The legal matter Schlosser addresses dates back to July, when two attorneys filed a complaint with the Department of Education. It alleges that Palestine solidarity activism creates “a disturbing echo of incitement, intimidation, harassment and violence carried out under the Nazi regime and those of its allies in Europe against Jewish students and scholars … during the turbulent years leading up to and including the Holocaust.” The Berkeley alumni behind the complaint are Jessica Felber and Brian Maissy, two former members of Tikvah for Israel. Felber is currently West Coast director for JerusalemOnlineU.com, an Israel advocacy site run by an anti-Muslim activist behind a number of Islamophobic films, Raphael Shore.

Student solidarity activists have rejected Felber’s and Maissy’s claims, and say that the complaint is part of a larger effort to suppress Palestine solidarity activism on campus. The ACLU letter also addresses the claim made in the complaint that physical violence has been carried out on campus against Jewish students. “While these are cause for legitimate civil rights concern…it should be kept in mind that they appear to be isolated incidents and/or carried out by unknown persons. They are not part the expressive activities of the SJP and MSA, like Apartheid Week, which are the primary focus and concern of this Complaint.”

More importantly, the ACLU addresses what it says are threats to constitutionally protected activities, like speech and protest in favor of Palestinian rights. Schlosser rejects what he says are the two main premises of the complaint: that opposition to Israel or Zionism is anti-Semitic, and that the university or the Education Department can prohibit political messaging that is offensive to a group of students. “Speech that criticizes the State of Israel and its policies and actions, or even questions its right to exist as a Jewish State in the region, cannot constitute the basis for government restriction or regulation,” writes Schlosser. The letter also emphasizes that activities like mock checkpoints, or Israeli Apartheid Week, is political speech and is protected by the U.S. Constitution.

Furthermore, the letter urges the Department of Education to quickly conduct its investigation due to the possibility that government scrutiny of student activism could chill future action on the issue. “Students who feel strongly about these issues, and shared the views being expressed by the organizers of Apartheid Week, might have serious second thoughts about getting involved with next year’s Apartheid Week, or similar SJP and MSA activities, while there are pending charges that these activities are part of a federal law violation,” the letter reads.

Felber and Maissy had previously filed a federal complaint against Berkeley last year, but dropped it after reaching a settlement. But the court they filed the complaint in stated that “a very substantial portion of the conduct to which plaintiffs object represents pure political speech and expressive conduct, in a public setting, regarding matters of public concern, which is entitled to special protection under the First Amendment.”

The activities contained in this current complaint are similar to the activities that Felber and Maissy complained about in their dropped suit last year.
 

This article’s headline has been corrected to read “Complaint” instead of “Lawsuit.”  

About Alex Kane

Alex Kane is an assistant editor for Mondoweiss and the World editor for AlterNet. Follow him on Twitter @alexbkane.
Posted in Activism, BDS, Israel Lobby, Israel/Palestine, US Politics

{ 0 comments... read them below or add one }

  1. pabelmont says:

    This is great stuff. ACLU says: “Speech that criticizes the State of Israel and its policies and actions, or even questions its right to exist as a Jewish State in the region, cannot constitute the basis for government restriction or regulation.”

    There are three possible outcomes: [1] is bad, a USA determination that pro-Palestine speech may be silenced at UC Berkeley; [2] is that the government finds no problem and closes the case silently; [3] is that the government finds no problem and closes the case noisily, that is, makes a public statement that pro-Palestine speech is protected, etc. Let’s hope that ACLU achieves [3].

    • Hostage says:

      Speech that . . . even questions its right to exist as a Jewish State in the region, cannot constitute the basis for government restriction or regulation.”

      BTW, if the 1st and 14th amendments protect Americans against the establishment of a Jewish religious or ethnic state, what’s preventing Hamas and Fatah from adopting the same sort of safeguards in their own Constitution?

      I really can’t believe that AIPACers et al want to risk having the Federal Courts review this particular situation with the Education Department.

    • piotr says:

      There is also outcome 4: the government finds no problems and lets the case sleep without issuing any statement whatsoever, not even official “closing of the case”. I put my money on that.

      As a practical matter, ACLU statement in itself reduces the “chilling effect”. For example, university administrations can be quite authoritarian, but not openly so and an unequivocal opinion from ACLU has some weight with them.

  2. The lawsuit is:

    “a disturbing echo of incitement, intimidation, harassment and violence carried out under” the Governorship of Ronald Reagan and by J. Edgar Hoover against… students and scholars on the Berkeley campus … during the turbulent years leading up to and including the Vietnam War.

  3. Thanks for a great piece, Alex. This complaint is testament to the growing power of the Palestine solidarity movement and our BDS campaigns on campuses and in our communities.

    • pabelmont says:

      It is also (and more) testament to the power of Zionists: they brought the complaint. Maybe stupidly, let us hope it works out that way. BTW, I wonder how many times Arab (esp. Palestinian) students on those campuses have felt that their rights were encroached upon by Zionist activity on the same campuses?

  4. It will be interesting to see how this unfolds as Students for Justice in Palestine get bullied a lot at UC Irvine as well. It is remarkable how the situation mirrors the real world where the victimizers play the victims.

  5. RE: “The Berkeley alumni behind the complaint are Jessica Felber and Brian Maissy, two former members of Tikvah for Israel. Felber is currently West Coast director for JerusalemOnlineU.com, an Israel advocacy site . . . Student solidarity activists have rejected Felber’s and Maissy’s claims, and say that the complaint is part of a larger effort to suppress Palestine solidarity activism on campus. . . ~ Alex Kane

    SEE: “The Trial of Israel’s Campus Critics”, by David Theo Goldberg and Saree Makdisi, Tikkun Magazine, September/October 2009

    [EXCERPT]. . . It is an extraordinary fact that no fewer than thirty-three distinct organizations – including AIPAC, the Zionist Organization of America, the American Jewish Congress, and the Jewish National Fund – are gathered together today as members or affiliates of the Israel on Campus Coalition. The coalition is an overwhelmingly powerful presence on American college campuses for which there is simply no equivalent on the Palestinian or Arab side. Its self-proclaimed mission is not merely to monitor our colleges and universities. That, after all, is the commitment of Campus Watch, which was started by pro-Israel activists in 2002. It is, rather (and in its own words), to generate “a pro-active, pro-Israel agenda on campus.”
    There is, accordingly, disproportionate and unbalanced intervention on campuses across the country by a coalition of well-funded organizations, who have no time for — and even less interest in — the niceties of intellectual exchange and academic process. Insinuation, accusation, and defamation have become the weapons of first resort to respond to argument and criticism directed at Israeli policies. As far as these outside pressure groups (and their campus representatives) are concerned, the intellectual and academic price that the scholarly community pays as a result of this kind of intervention amounts to little more than collateral damage. . .

    ENTIRE ARTICLE – link to tikkun.org

  6. Felber is currently West Coast director for JerusalemOnlineU.com, an Israel advocacy site run by an anti-Muslim activist behind a number of Islamophobic films, Raphael Shore.

    from shore’s wiki page: He is the founder of The Clarion Fund, ……Shore wrote and produced the documentary films Relentless: The Struggle for Peace in the Middle East, Obsession: Radical Islam’s War Against the West, The Third Jihad: Radical Islam’s Vision for America, and IRANIUM.

    full on radical islamophobe.

    great report alex

    • MRW says:

      He’s worse than that. He’s connected with the Yisrael Beintenu party in Israel, as jewsonfirst.org reported in their investigation on the distribution of the DVD Obsession. This is radical right-wing foreign government interference in US campus life under the umbrella of a NGO.
      =================

      Alex: does Schlosser need write-in help from people? Do you know? Can you find out?

  7. eGuard says:

    California University, listen. I remember what Jon Stewart said in his Daily Show, one week after the US elections. He said (like): Hey Florida. All your anti-voting regulations to keep democrats from voting. All your bad organised voting boots to keep democrats from winning. You know what the good news is? It was decided without you.

  8. MarionL says:

    I’m on the side of the ACLU in this case, and reject the condescending notion that Jewish students need to be “protected” from viewpoints that they may disagree with.

    • pabelmont says:

      I am a teensy bit sympathetic to some Zionist (Jewish) students on campus (not the leaders, of course, for they know better or should). Imagine that you’ve been taught all your life how wonderful and how necessary Israel is and then you come out of the cocoon into college and get plonked down among a bunch of people who never enjoyed (enjoyed?) that pro-Israel training and instead are condemning the place! WOW! cognitive dissonance when you hear what they are saying and try to retain your loyalty to dear old mom, apple pie, blintzes, chopped liver, and of course Israel. Of course it makes you feel bad! Gee whiz, can’t you just leave me alone to my “received wisdom”, et al.?

      Yes, and the kids raised or home-schooled in flat-earth (or just say no to Darwin) households have a tough time, too, although people probably aren’t so political about those things as about Palestine. (“Palestine? There isn’t and never was such a thing as Palestine. The Arabs are temporary intervenors in perpetual Israel! 4000 years! Yay! What? Not true? Mommmyyyyyyyy”)

    • Woody Tanaka says:

      Well, then it’s good for the ACLU that these students weren’t faced with cards depicting the Holy Family. THAT might have sent them into paroxysms of fear that you surely would agree with…

    • piotr says:

      To a degree, humiliations and insecurity should be an expected part of Exile. But among hostile Nations, can even Israel be secure? For example, Department of Education there tries to close a political science department for anti-Israeli activities and so far, it is a slow going. On the bright side, there is also Friendly Triple of Marshall Islands, Micronesia and Palau.

    • pjdude says:

      correct. you not liking being confronted with the ugliness of the results of your choices isn’t others creating a hostile enviorment for you; its you lacking the maturity to deal with the consequences of your choices.

  9. dbroncos says:

    I’m glad to see this issue is moving to the courts. Zionists will have to explain that Nazis are knocking on America’s door and infiltrating the UC campus system. Judge and jury alike will look at the powerful evidence to the contrary, including their everyday understanding of the priviledged place of Jews in American society, and ask, “What are you talking about?”