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

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.”