Yet again, another university seems to have forgotten the first law of holes: When you find yourself in one, stop digging.
On Wednesday, FIRE and the National Coalition Against Censorship (NCAC) publicly called on Fordham University to reverse its viewpoint discriminatory refusal to recognize a prospective Students for Justice in Palestine (SJP) chapter. In our January 25 letter, we explained that refusal to recognize a student organization on the grounds that administrators disagreed with the group’s viewpoints and believed that the group’s expression would be “polarizing” violated the explicit promises of freedom of expression that Fordham makes to students.
Unfortunately, shortly after our press release, Fordham doubled down on its free speech violations, forwarding to FIRE and NCAC the exact response it had previously provided to Palestine Legal (PAL) and the Center for Constitutional Rights (CCR).
Even worse than Fordham’s failure to respond directly to our concerns was the appearance of a brand new justification for denying SJP official recognition: that members of SJP chapters at other colleges and universities have engaged in conduct that would violate Fordham’s code of conduct. Fordham Senior Vice President for Student Affairs Jeffrey Gray wrote to PAL and CCR:
The decision to deny the request to form a club known as Students for Justice in Palestine at Fordham University was based on the fact that chapters of this organization have engaged in behavior on other college campuses that would violate this University’s student code of conduct. . . .
When asked to change the name of the proposed club and to distance themselves from the national organization, our students declined to do so. The University is under no obligation to grant club status to a group of students who choose to affiliate with an organization that engages in behavior that is inconsistent with the University’s code of conduct. I have very serious concerns about the prospect of allowing an external organization to encourage disruptive conduct on campus that could adversely impact our students and our campus community.
Today, we wrote a second letter to Fordham University explaining that this new reasoning was roundly rejected by the Supreme Court of the United States in the very same case that FIRE and NCAC cited in our first letter:
Again, as we explained in our January 25 letter, the Supreme Court of the United States rejected exactly this argument in Healy v. James, 408 U.S. 169 (1972), a case precipitated by a controversy that bears striking resemblance to this matter. In Healy, the president of Central Connecticut State College (CCSC) refused to grant recognition to the campus chapter of Students for a Democratic Society (SDS) based in part on his apprehension regarding the chapter’s affiliation with the national organization—despite the students’ repeated assurances that the chapter would be independent and owed no allegiance to the national organization. Id. Dismissing the president’s justification for denying SDS recognition, the Court wrote:
[I]t has been established that “guilt by association alone, without [establishing] that an individual’s association poses the threat feared . . .” is an impermissible basis upon which to deny First Amendment rights.
[. . .]
Students for a Democratic Society, as conceded by the College and the lower courts, is loosely organized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action. Not only did petitioners proclaim their complete independence from this organization, but they also indicated that they shared only some of the beliefs its leaders have expressed. On this record it is clear that the relationship was not an adequate ground for the denial of recognition. [Internal citation omitted.]
The founders of the prospective SJP chapter at Fordham have made similar, repeated assurances that it is independent and bears no responsibility to the national organization of Students for Justice in Palestine (NSJP). On two separate occasions, in April and September of 2016, the students confirmed to the administration that “NSJP is a separate, student-run organization which organizes annual conferences but otherwise is independent of campus SJP organizations,” and that the national organization did not require anything of a campus chapter. Further, on October 14, the students themselves proposed to codify this in the chapter’s constitution by adding the language “NSJP requires nothing of us, and we have no responsibility to it.”
It is difficult, especially since the students expressly disclaimed any allegiance to the national SJP organization, to imagine why Fordham rests its case on the fact that students declined to change the name of their prospective organization. Does Fordham honestly believe that the students would engage in disruptive conduct if they retained the SJP name, but magically would not to if operating under a different name? Of course not. As with nearly all of Fordham’s actions in this issue, this is nothing more than a post hoc justification to hide the fact that Fordham administrators are engaging in flagrant viewpoint discrimination because they don’t agree with SJP’s beliefs.
SJP isn’t the only student organization threatened by this justification. As we wrote to Fordham today:
Fordham sets a dangerous precedent in holding student groups accountable for the actions of unrelated individuals at other institutions. Would Fordham derecognize the College Democrats or College Republicans if chapters at other universities engaged in misconduct? We suspect that you would not, and an ad hoc rule subjecting SJP to such liability is equally unacceptable.
Providing further evidence that Fordham is denying SJP recognition because of its views is the university’s speculative assessment that SJP would engage in disruptive conduct at Fordham. In Healy, the Court refuted administrators’ fear of disruption (emphasis added):
[T]here was no substantial evidence that these particular individuals acting together would constitute a disruptive force on campus. Therefore, insofar as nonrecognition flowed from such fears, it constituted little more than the sort of “undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression.”
Similarly, Fordham has no evidence that the prospective SJP chapter would cause disruption on campus, other than holding the group accountable for the actions of others, over whom they have no control. In fact, administrators do not appear to have even asked the founding members whether they would engage in disruption. Rather, the students were questioned on their use of the term “apartheid” and their support for the Boycott, Divestment and Sanctions (BDS) movement—i.e., their viewpoints.
FIRE and NCAC repeat our call for Fordham University to respect the expressive rights of its students:
Again, while Fordham University is not bound by the First Amendment, it is bound by the explicit promises of free expression that it makes to its students. Your university may not lay claim to the intellectual vitality that results from freedom of expression and the marketplace of ideas while simultaneously prohibiting students from forming a student organization because of administrative disagreement with their beliefs and baseless fears of disruption. If your commitment, as stated in your January 20 letter, to “protect[ing] the ability of all . . . students to voice their political views” is to mean anything, Fordham must immediately reverse course.
We hope Fordham will carefully consider both of our letters and do just that, rather than searching for another way to justify censorship. Engaging in after-the-fact justifications based on guilt by association may comfort the Fordham administrators who censored these students, but they’re not convincing anyone else.