More on Free Speech on Campus, Title VI, and Anti-Israel Speech
Judge John Cronan Feb. 5 decision in Gartenberg v. Cooper Union declined to dismiss plaintiffs’ claims alleging a hostile educational environment for Jewish students at Cooper Union (a college in New York), but held that those claims could not be based on certain political speech that the college had tolerated. Plaintiffs moved to reconsider, and in a new decision Tuesday, Judge Cronan stood by his earlier position; an excerpt:
[Gartenberg asks the Court to] revise its Opinion and Order to hold Cooper Union potentially liable under Title VI for “all incidents of harassment alleged in the Complaint, including those where the harassment was accomplished through political speech.”
Gartenberg does not specify which additional allegations of “harassment” she believes the Court misclassified as protected speech on matters of public concern. The Court therefore assumes that her Motion seeks to have the Court recast some or all of the following incidents as actionable harassment under Title VI and the First Amendment: (1) a demonstration by pro-Palestinian students on a public sidewalk adjacent to the Foundation Building concerning the Israeli-Palestinian conflict; (2) the distribution of fliers supporting the Palestinian cause; (3) a controversial “art display” advocating violent resistance to “colonialism”; (4) a speech by Dr. Omer Bartov titled, “The Never Again Syndrome: Uses and Misuses of Holocaust Memory and the Weaponization of Language”; (5) an on-campus “vigil” organized by a pro-Palestinian student organization to “Honor Palestinian Martyrs”; (6) a flier inviting members of Cooper Union’s community to “come grieve and honor all those killed by decades of Israeli occupation and imperial violence”; (7) a statement published in Cooper Union’s student newspaper by the school’s Muslim Student Association that characterized “the account of the Jewish students being trapped in the library as ‘a false narrative'”; (8) a statement published in same issue of the school newspaper by Cooper Union’s Black Student Union, which “declared solidarity with ‘the Palestinian struggle against colonialism and genocide’ and claimed that ‘the conflation of Zionism and Judaism’ is ‘manipulative, exploitive and racist'”; and (9) an “alumni letter” signed by Cooper Union students, faculty members, and administrators that expressed support for the Palestinian cause and, among other things, stated that “[i]t is historical malfeasance for the administration to issue a statement of condemnation of Hamas’s October 7th attacks without acknowledging the context in which these attacks took place.”
The Court declines to amend its First Amendment analysis to expose Cooper Union to possible civil liability based on these incidents…. Gartenberg argues that under Healy v. James (1972), a lesser degree of First Amendment protection for political speech is warranted in the higher-education context due to the “‘special characteristics’ of schools.”
But Healy said exactly the opposite: “[T]he precedents of [the Supreme Court] leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.'”The Supreme Court in Healy, therefore, made clear that “[t]
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