Does the First Amendment protect pro-Palestinian student activism on college campuses?

By Engy Abdelkader, community submission

Plug in “bullying” into Google and here’s the definition that pops up: “use superior strength or influence to intimidate (someone), typically to force him or her to do what one wants.” This October, also known as National Bullying Prevention Month, advocates, educators and parents are working to raise awareness about trends in bullying around the country. Overlooked are university students grappling with potential First Amendment challenges due to their pro-Palestinian human rights stance.

Consider these examples:

Last October, a George Washington University medical school student received a “Warning Letter,” for hanging a Palestinian flag outside his dorm room window after a campus police officer reported receiving numerous related complaints. The student, bewildered by the opposition, subsequently wrote a letter to college officials that read in part:

“I felt like I was being singled-out, because of my heritage and the viewpoint of my speech, for something I’ve seen dozens of students, fraternities and other student groups do in my three years at GW . . . The events of the last week have left me feeling humiliated, upset and like I can’t even feel safe in my own dorm room.”

One month later, in November, at the University of Texas, a professor allegedly singled out Palestinian students who protested his lecture about the Israeli army. During the civil protest, one student flew the Palestinian flag while another spoke about his family, now refugees, and their experience with the Israeli military.

At one point, the UT professor in question was physically restrained as he approached one of the students. The same professor later wrote on Facebook,

“Less than forty eight hours after horrific attacks in Paris, I feel that is my responsibility to ask you to join me in an attempt to confront the radicalization process on campuses and to protect students, staff and faculty members from intimidation and violence. After spending two decades of learning how people turn to terrorism, I fear that what I witnessed on Friday should raise many red flags. … We cannot let such individuals terrorize us.”

UT students filed complaints alleging among other things that the professor had wrongly linked one of the Palestinian students to terrorism while publicly releasing his name. The university later cleared the professor of wrongdoing after an internal investigation described by some, including the protesting students’ lawyers, as extremely one-sided.

But for his client’s Palestinian heritage, the lawyer observed, the professor would not have made the Islamophobic connection to terrorism or radicalization. Notably, UT offered training to faculty about appropriate responses to student demonstrations during college-sponsored events.

More recently, in March, controversy erupted when pro-Palestinian rights student activists distributed the following flyers at Claremont University:

“EVICTION NOTICE: DORM SCHEDULED FOR DEMOLITION IN THREE (3) DAYS. If you do not vacate the premises by 3/10/2016 8 PM, we reserve the right to demolish your premises without delay.”

The students explained that they were attempting to raise awareness about “this year’s brutal wave of evictions and demolitions that have taken place in Palestine, specifically in the Negev and Jerusalem.”

In response, several students contacted the local police complaining that they had been targeted in an alleged hate crime. While the initial reporting officer decided that the incident was “more of an awareness event,” college officials later sent a campus wide email confirming their formal cooperation in an investigation into “a possible bias incident.”

A number of student groups, including Jewish Voice for Peace, described the email as targeting political speech, however. While some students expressed concern about perceived anti-Semitism, other Jewish students indicated that criticism of Israeli policies is often confused with bigotry.

Are various actors – campus police officers, peers, university officials – censoring political speech and expression while bullying pro-Palestinian human rights student activists into silence?

As early as 1943, the US Supreme Court recognized and upheld the freedom of speech rights of students protected under the First Amendment to the Bill of Rights. In West Virginia Board of Education v. Barnette, the Court found that the State could not force students to salute the flag or pledge allegiance, find their abstention from doing so as a ‘form of utterance’ and as such, protected speech.

Its decision, issued on Flag Day for impact, made clear that a school’s “censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.” In doing so, it rejected arguments that compulsory flag pledges would enhance national unity.

The Court famously observed:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Since Barnett, the Court has consistently upheld First Amendment freedoms for students for whom learning is not simply limited to the confines of a classroom. Legal protections have not only extended to speech but expression in myriad jurisdictions as well, including artistic performances, political demonstrations,religious and political associations and literary expression.

Of course, the U.S. Supreme Court has recognized that not all speech is protected. These categories are limited, however, and include “advocacy intended, and likely, to incite imminent lawless action; lawless action; obscenity; defamation; speech integral to criminal conduct; so-called ‘fighting words;’ fraud, true threats; and speech presenting some grave and imminent threat the government has the power to prevent.”

Arguably, the examples above are protected expression.

I acknowledge the Israeli-Palestinian debate is fraught with heartache and controversy. But, as Americans we should be able to agree that people in our country are entitled to hold and express an opinion, within lawful boundaries, in that ongoing conversation.

That’s not a quaint idea or just a founding national value. It’s a legal principle enshrined in our Bill of Rights.

And, it applies to all of us, including student activists – a reminder this National Bullying Prevention Month.

This has been re-published with permission from the author.

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