Free Speech

Court Overturns Fordham's Decision Not to Recognize Students for Justice in Palestine Chapter

Though Fordham is a private university, under New York law private university decisions that violate the universities' own stated rules may be set aside by a court.

|The Volokh Conspiracy |

In Awad v. Fordham University, 2019 WL 3550713, dated last Monday but apparently just made public, several Fordham undergraduates asked the school to recognize "Students for Justice in Palestine at Fordham University" as a student group. Their proposal said the group aimed "to build support in the Fordham community among people of all ethnic and religious backgrounds for the promotion of justice, human rights, liberation, and self-determination for the indigenous Palestinian people," and "is organized around the principles of the call by Palestinian civil society for Boycott, Divestment and Sanctions of Israel."

Fordham's published rules include Section 2(a) of the Fordham University Lincoln Center Campus United Student Government Operations Committee Club Guidelines ("the Guidelines"), which provides that a club's purpose, as set forth in the club's constitution, must state "how th[e] Club will benefit the Fordham community." Section 2(e) requires a "[s]tatement that the Club will not restrict membership based upon national origin, race, religion, creed, gender, sexual orientation, age, or physical handicap." Section 8(h) of the Guidelines provides that the Dean of Students has a right to veto any new club, but the Guidelines do not articulate or enumerate any grounds on which the Dean may exercise such a veto. Moreover, the Guidelines themselves are unclear as to whether that veto must be exercised prior to a vote by the USG [United Student Government] Executive Board and Senate.

However, Section I of the 2016-2017 Fordham University Lincoln Center Campus United Student Government Operations Committee Club Registration Process provides, in relevant part, that:

"The Operations Committee will work with you in editing your constitution. After all revisions to the constitution have been made in accordance with constitutional guidelines, the packet will be submitted to the Director of the Office for Student Involvement and then to the Dean of Students.

"Once a club's constitution is approved by the Director of the Office for Student Involvement and the Dean of Students, the packet is to be forwarded to the USG Senate for their recommendations and final approval.

"Upon approval by above-mentioned parties, the club is considered a registered organization of F[ordham] C[ollege] L[incoln] C[enter] and G[abelli] S[chool of] B[usiness]."

Despite this, after the USG approved the SJP chapter, Dean of Students Keith Eldredge rejected the application, saying,

"After consultation with numerous faculty, staff and students and my own deliberation, I have decided to deny the request to form a club known as Students for Justice in Palestine at Fordham University. While students are encouraged to promote diverse political points of view, and we encourage conversation and debate on all topics, I cannot support an organization whose sole purpose is advocating political goals of a specific group, and against a specific country, when these goals clearly conflict with and run contrary to the mission and values of the University.

"There is perhaps no more complex topic than the Israeli-Palestinian conflict, and it is a topic that often leads to polarization rather than dialogue. The purpose of the organization as stated in the proposed club constitution points toward that polarization. Specifically, the call for Boycott, Divestment and Sanctions of Israel presents a barrier to open dialogue and mutual learning and understanding." …

New York state court Nancy M. Bannon held that this violated Fordham's own rules:

"Courts have a restricted role in reviewing determinations of colleges and universities. A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, [or] it fails to abide by its own rules."… As long as the petition alleges specific facts "giving rise to a fair inference" that the determination was arbitrary and capricious, dismissal for failure to state a cause of action is not warranted.

The petition here more than satisfies that standard, as it clearly alleges that Fordham procedurally violated its own rules concerning the recognition of student clubs by permitting a dean to overrule a vote of the USG, and imposed a newly identified factor in considering whether approval is warranted or not, namely whether a group may add to the "polarization" of persons with differing opinions on contested topics of the day….

Generally, the denial of a motion to dismiss the petition in a CPLR article 78 proceeding is followed by the service and filing of an answer and administrative record, or return. However, where "it is clear that no dispute as to the facts exists and no prejudice will result" a court, upon a respondent's motion to dismiss, may decide the petition on the merits.

Under the circumstances presented here, service of an answer is not necessary, as the facts have been fully presented in the parties' papers, and no factual dispute remains….

A determination is arbitrary and capricious where is not rationally based, or has no support in the record. A determination may also be annulled as arbitrary and capricious where the decision maker considers inappropriate factors in coming to his or her decision. In addition, a determination of a university, acting in its administrative capacity, may be set aside where the university does not abide by its own rules….

Here, Fordham did not abide by its own published rules governing the approval and recognition of student clubs, inasmuch as it seemingly imposed an additional tier of review, by a dean, of an approval already rendered by the USG. This deviation from usual practice is particularly notable here, since the USG was only empowered to vote for approval of a club in the first instance where prior approval has already been granted by the Director of the Office for Student Involvement and the Dean of Students. Indeed, the Dean's abrupt change from preliminary approval to rejection was made without a rational explanation or any change in circumstances. In the context of administrative determinations, "[a] change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief," and such an unexplained change necessarily requires the conclusion that the ultimate determination was arbitrary.

Moreover, the ground for overruling the USG, as articulated by Dean Eldredge, was the potential "polarization" of the Fordham community were SJP to be formally recognized. Although the Dean, in determining whether to veto any new club, has discretion to evaluate whether the club will promote Fordham's mission, this discretion is neither unlimited nor unfettered. The issue of whether a club's political message may be polarizing is not enumerated or identified as a relevant factor in any governing or operating rules, regulations, or guidelines issued Joy Fordham, and appears to have been arbitrarily considered by Dean Eldredge after input from others who are critical of SJP's political beliefs. Importantly, consideration of whether a group's message may be polarizing is contrary to the notion that universities should be centers of discussion of contested issues.

"The classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection." Keyishian v Board of Regents 385 US 589, 603 (1967).

Contrary to Fordham's contention, its status as a private university does not mandate dismissal of the petition. Although Fordham is not a public university, and thus not expressly subject to First Amendment limitations on its right to restrict opinions that might be controversial or unpopular, Fordham's own rules, regulations, and guidelines do not empower the Dean of Students to restrict the university's recognition of a student club based on its potential for raising issues or taking political position's that might be controversial or unpopular with a segment of the university community. Indeed, Fordham's 2005 mission statement, in relevant part, provides that:

"Fordham strives for excellence in research and teaching, and guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.

"Fordham affirms the value of a core curriculum rooted in the liberal arts and sciences. The University seeks to foster in all its students life-long habits of careful observation, critical thinking, creativity, moral reflection and articulate expression. "In order to prepare citizens for an increasingly multicultural and multinational society, Fordham seeks to develop in its students an understanding of and reverence for cultures and ways of life other than their own."

In other words, the consideration and discussion of differing views is actually part of Fordham's mission, regardless of whether that consideration and discussion might discomfit some and polarize others.

In his determination, Dean Eldredge does not provide a rational basis for concluding that SJP might encourage violence, disruption of the university, suppression of speech, or any sort of discrimination against any member of the Fordham community based on religion, race, sex, or ethnicity. His only articulated concern was that SJP singled out one particular country for criticism and boycott. Again, this is not an established ground for denying recognition to a student club. To the extent that Dean Eldredge claims authority to reject any club that criticizes a particular country, that same rule could be applied to students protesting or criticizing China's occupation and annexation of Tibet, Russia's occupation of the Crimea, or Iraq's one-time occupation of Kuwait.

Since there is nothing in the record of Dean Eldredge's determination supporting his authority to reject an application of a student club because it criticized the policies of only one nation, the determination must be annulled as arbitrary and capricious. Even if he had such authority, there is nothing in the record of his determination requiring Fordham to apply such a rule consistently. Therefore, it must be concluded that his disapproval of SJP was made in large part because the subject of SJP's criticism is the State of Israel, rather than some other nation, in spite of the fact that SJP advocates only legal, nonviolent tactics aimed at changing Israel's policies. This also renders his determination arbitrary and capricious, since the defense of a particular nation is not a factor countenanced by Fordham's rules, regulations, and guidelines for the approval of student clubs….

In light of the foregoing, it is … ORDERED and ADJUDGED that … the determination of Dean Keith Eldredge dated December 22, 2016, disapproving the application of Students For Justice in Palestine at Fordham University to be recognized as a student club is annulled, and Fordham University is directed to recognize Students For Justice in Palestine at Fordham University as a university-sanctioned club in accordance with the approval of the United Student Government Executive Board and Senate dated November 17, 2016 ….

Not that, if this was at a public university, the First Amendment would certainly ban the Dean from rejecting a student group on the grounds that it's "polarizing"; at a private university, the matter is one of contract and of the state law of nonprofit organizations.

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  1. Seems a little odd. Fordham is a private university with it’s own rules and regulations, and it’s own right to interpret them. Here, the court is judging its own interpretation of Fordham’s rules over Fordham’s own interpretation….

    1. You don’t have that quite right. “Fordham’s own interpretation” would be better stated “Fordham’s current interpretation”, as any change in personnel could easily change who interprets it and how.

      Besides, courts stick their noses into all sorts of private issues, and that is part of their job. It would be a funny court system which was not allowed to review “private” legal disputes.

      1. Re your first paragraph: not terribly dissimilar from administrative law.

        Absent the provision of NY law permitting this review, it would almost certainly be dismissed. I’m not sure what I think of turning private educational rules into de facto law.

    2. How is this different from a contract? Or, even closer, an employee manual? A private party is entitled to follow what rules it wishes, but once you say, I am going to do what is written here, and others rely on that, then I don’t see the problem with a court enforcing it.

      1. If a state allows at-will employment, I don’t think that should be categorically overridden by something in an employee manual. If there is a contract that is different. The treatment of university rules as law appears more akin to administrative law than contract law. IT would be a funny and very different landscape if manuals, rules, and publications were routinely treated as having the force of law in private legal disputes. (Obviously such things can be relevant to legal disputes, but that’s different from treating them as law.)

        1. Manuals and publications are taken as evidence of legally binding promises all the time in court cases.

          1. As I wrote, if there is a contract (ie a legally binding promise) that is different and these things can be, in any event, relevant to legal disputes. Treating them categorically as law is a different animal.

            1. It turns out that lots of things that aren’t strictly contracts can be enforced by a court. Try googling “promissory estoppel”.

              1. That is essentially a non-sequitur. Again, I am not saying something in an employee manual or the like can never be enforced. I’m not even saying that the New York law providing for judicial enforcement of university rules is a bad thing. I am saying that such private rules are generally not enforceable and it would be a very different landscape if they were!

                My specific statement above was that “If a state allows at-will employment, I don’t think that should be categorically overridden by something in an employee manual.” I even used the modifying term “categorically” to show I wasn’t dismissing certain exceptions to the general rule – most notably contract (though there are alternatives like promissory estoppel, but I think tough to demonstrate relevance in the employment hypothetical).

                1. “That is essentially a non-sequitur.”

                  By which you apparently mean not in any way a non-sequitur.

                  Promissory estoppel has application in employment hypotheticals, too, as do other pseudo-contract principles. Treating these long-established principles of law as “law” is not as controversial as you seem to believe.

                  1. You simply don’t get it and argue for the sake of arguing. Treating contract law as law is not controversial.

                    Treating something like an employee manual as a binding and overriding rule, *OUTSIDE of it being part of a contract or the like*, is a different animal. In my very first post I included these caveats.

                    Bringing up promissory estoppel is a non-sequitur. We can play all kinds of “what about…” games. Sure, there very well could be something in the manual relevant to a tort claim. Entertaining that hypothetical would also be a non-sequitur to what I’m arguing.

                    As I originally wrote: Obviously such things can be relevant to legal disputes, but that’s different from treating them as law.

                    As I also wrote (with emphasis): If a state allows at-will employment, I don’t think that should be CATEGORICALLY overridden by something in an employee manual.

                    You must be giving my original post a very selective reading to come away with the opposite.

                    1. “Bringing up promissory estoppel is a non-sequitur. ”

                      By which you apparently continue to mean “totally not a non-sequitur.”

                      Please believe me when I point out that your continuing to argue about this (including your complaint about arguing about this) is greeted by a hearty “whatEVER, dude”.

          2. It’s not true that employee manuals and publications are taken as evidence “all the time.” There are certain states that do, but most of those states are fair weather fans (at best) of the at-will doctrine. The University should put disclaimers on the top of everything they publish to students that the document is not a contract, as that it how it is dealt with in those states. Or else the courts consider how ridiculous it is to require private entities to do so, and just leave those private entities alone to govern themselves.

            As to the dean’s explanation about polarization, it seems to reflect that the pendulum has perhaps begun its swing back against the divest crowd. That objective is, at the very least, an objective that is contested more than it was in the past. Reconsideration of it would not appear to be arbitrary per se.

      2. Because it’s not a contract? It wasn’t negotiated between two parties. Because “arbitrary and capricious” is a standard that doesn’t apply to contracts, and is almost always used in government agencies, which this is not.

        1. “Because it’s not a contract? It wasn’t negotiated between two parties.”

          Neither are contracts of adhesion, which are, as suggested by the name, contracts.
          Some students decide which university to attend based on having only a single option. Some students decide which university to attend based on a choice of several, however, and they don’t get to individually negotiate with the university what the terms of their attendance will be… so they rely on things like manuals and promotional materials prepared by the university.
          Actually holding the schools to the terms of their own creation is not a radical approach. That’s how contracts of adhesion are interpreted, generally.

          1. There’s always a choice.

            1. People who are defrauded had a choice, yes.

  2. In a sane society, an issue like this would never arise, because anyone supporting a cause like this would be deemed a traitor and executed. A club couldn’t be formed by dead people.

    1. RestoreWesternHegemony: Do you really think it reflects well on you and your cause that you keep talking about having your political enemies executed? If that’s what Western hegemony means (as it happens, I don’t think it does, but you seem to), why exactly should we want it?

      1. It does not, but RestoreWesternHegemony’s approach seems to be unfortunately common today across the political spectrum. Rather than engage and debate people we disagree with, we call out “bad speech”, shout down speakers we don’t like, shun our political enemies and boycott their businesses, and in rare cases, call for their execution.

        1. Both sides applies to more than I’d like, but you don’t get to bothsides this one.

          Regularly calling for the death of all who oppose you seems kinda uncommon to me.
          Certainly uncommon on this blog except for him.

          1. “you don’t get to both sides this one.”

            No, I totally do. He is not “calling for the death of all who oppose him” in any meaningful sense, rather his comments are merely a hyperbolic means of “calling out bad speech”.

            1. Deemed a traitor an executed is just hyperbole. When he does it all the time. And wishes for an American Pinochet. Sure.

              Why in the world are you trying to minimize him? It’s not like you guys actually share an ideology…or….hmmmm.

      2. Truthfully, I’m not concerned about reflection; I’m concerned about winning. I don’t think our current state is sustainable. I think the left has to be considered an evil to be eradicated. If the right doesn’t eradicate them first, the West is done. It’s really that simple.

        1. If you’re so concerned about winning, why do you engage in hyperbole that is certain to make your political allies look worse and embolden the people you’re trying to defeat?

          And if this is existential for you, why are you sitting around at a keyboard? Is it because you’re a coward?

          1. Everyone knows that all the best revolutionaries: from Sam Adams, to Bolivar, to Castro, had awesome hashtag skills.

          2. My enemies are already emboldened. I need for people on my side to wake up.

          3. You guys are taking RWH seriously?

            For all I know, he’s a fat, hairy, vodka soaked troll, squatting in an abandoned house near Chernobyl, sitting before a computer typing his crazy divisive political troll chum bait, when he not posing a Russian mail order bride for widowers ID’d by scanning obituaries at funeral home websites.

            I suspect his goal is to demolish the traditions of western civilization. If it isn’t, his posts are then an example of unintended consequences.

            1. No one takes him seriously; it’s more that he’s in such bad taste he’s annoying to be around regardless of what your affiliations are otherwise.

              1. Right. He’s the gross form of parody, as opposed to OBL, who often manages to hit it just right.

                The real question is: is he a righty who is trying on extremism, or a lefty who thinks that’s what’s a conservative really thinks behind their words. Or a Russian troll. Can’t rule that out.

                1. I’m as conservative as they come. Any conservative who doesn’t realize that leftist are his enemies and cannot be reasoned with is not really a conservative.

                2. I’m personally pretty sure it’s Kirkland.

                  1. I still think it’s a puppet operated by a Russian troll farm.

    2. Clearly, you should not be pontificating what would happen in a “sane” society, based on your own lack thereof.

  3. I can see how the court could read the rules as saying Fordham’s Dean only gets one bite at the apple, and has to decide whether to approve a club *before* the matter goes to the student government. But once he approves and the Student government grants recognition, there apparently isn’t a rule allowing the Dean to take it back and un-recognize the group.

    On the other hand, the broader, academic-freedom rationale for the decision seems, at the very least, less of a slam-dunk.

    “Although the Dean, in determining whether to veto any new club, has discretion to evaluate whether the club will promote Fordham’s mission, this discretion is neither unlimited nor unfettered.”

    Well, let me look at Fordham’s home page, to see what’s there, if anything, besides what the court quoted:

    So here’s their Mission Statement:

    https://www.fordham.edu/info/20057/about/2997/mission_statement

    Actually, the court already cited the reverence for other cultures thing, but that could go either way – it could mean denying recognition to a group which doesn’t have the desired reverence. Whatever these slippery Jesuits mean by “reverence” for other cultures, that doesn’t have to include boycotting a nation-state associated with a particular culture.

    “Fordham gives special attention to the study of the living tradition of Catholicism, and it provides a place where religious traditions may interact with each other and with contemporary cultures.”

    Well, that could go various ways. It *could* mean the encouragement of *respectful interaction,* rather than one-sided boycotts in the name of “justice for Palestine,” if the Dean thinks that’s a convenient euphemism for Jew-baiting.

    “Jesuit education is cosmopolitan education. Therefore, education at Fordham is international in its scope and in its aspirations.”

    Well, again that’s not 100% clear, but the Dean could argue that it’s not very cosmopolitan to single out one country for double-standardish boycotts.

    “Fordham is privileged to share a history and a destiny with New York City. The University recognizes its debt of gratitude to the City and its own responsibility to share its gifts for the enrichment of our City, our nation and our world.”

    There’s no denying that NYC’s famous melting pot includes some Jewish people – maybe the Dean could decide that keeping good relations with NYC’s Jewish community includes not encouraging BDS stuff.

    1. You could read it like that (“only one bite at the apple”). But that’s not what it actually says.

      In one part, it says the Dean of Students has to approve the group’s constitution. Then it can go to the USG Senate. However, the Dean of Students also has the right to veto.

      The “veto” is defined as right to reject a decision made by a law making body. By definition, a veto has to occur AFTER the law making body has had its vote. It cannot occur before. Moreover, there do not have to be reasons for a veto.

      To use an analogy, the President can send a budget to Congress with his approval. Congress can then vote on the budget and pass it. But the President has the right to veto the budget afterwards, for any reason. Even if there are no changes, and he approved it to Congress in the first place.

      I think the court misread the rules and language here.

      1. That could certainly be the case. I may have given the court too much credit.

        Back to the University mission statement – these statements are often a mass of educational bafflegab where a judge can find any phrase to his or her liking.

  4. Another loss for bigotry. Thanks, Eugene.

  5. On a completely different subject. The “BDS movement” is a thinly veiled antisemitic hate organization, designed to eliminate the Jewish people in Israel. The predominant drive is the delegitimization and demonization of Israel. The founding goals of the organization deny the Jewish peoples the right of self determination. The BDS movement more closely parallels the Nazi boycott of Jewish businesses in 1933, rather than a student group aimed at Palestinian rights. These reasons are why 26 states have laws aimed against the BDS movement.

    This sort of group is why Fordham put that Veto clause in, and used it. Just like they would use it against a white supremacist group, and for similar reasons why so many states condemn such a movement.

    1. The Israeli-Palestinian issue is such a black hole of partisan blather you scarcely find anyone willing to dial back absurdist rhetoric. On the BDS Movement, it doesn’t hurt to try answering some simple questions for perspective :

      (1) BDS is modeling on anti-apartheid boycotts. If BDS is inherently “anti-semitic”, were those boycotts inherently anti-white? If not, why not?

      (2) BDS is held inherently racist because of statements by a handful of people made decades ago before most current BDS organizations even existed. Given that, were anti-apartheid boycotts racist if there was one objectionable statement by one person at any point during the movements history?

      (3) BDS is held inherently anti-semitic because Israel is nowhere close to the worst human rights offender in the world. Does that mean the anti-apartheid boycotts were anti-white because South Africa was nowhere close to the worst human rights offender in the world?

      I’m just pointing out hypocrisy and bad arguments here, not claiming BDS is necessarily good or bad. Most partisans for Israel or the Palestinians are mainly interested in meaningless symbolic “victories” over real substance – because it relieves them from dealing with the culpability of their side, or the cowardice and folly of the leaders they support.

      1. I too would like to see substantive responses to these questions. (grb, if such don’t materialize, perhaps you could get the ball rolling by taking a stab at the best responses of which you’re aware; I suggest this because you seem at least potentially interested in a reasoned principled approach to the matter, and are certainly more informed on it than I am).

      2. I’m not so sure that Israel is interesetd in “meaningless symbolic victories.” I think it would settle for not being the subject of further acts of terrorism. Mind you, I think that most Palestinians would likewise settle for peace, but I’m not at all sure that their governing authority, such as it is, would do so, except as Israel’s ultimate expense.

        1. “I’m not so sure that Israel is interesetd in ‘meaningless symbolic victories.’ I think it would settle for not being the subject of further acts of terrorism.”

          I think it depends on which persons on the street to happen to stop and ask, and when.
          When all the avenues of approach that are NOT terrorism are rebuffed (whether because of the past terrorism or not) one understands why the terrorism keeps coming to the top of the list of options. (No, understanding is not the same as endorsing. Save it.)

      3. Pretty loaded questions:
        (1) The BDS movement models “itself” on anti-apartheid boycotts in order to deflect legitimate criticism that it is anti-semitic.
        (2) Didn’t Rep. Omar recently try to get her pro-BDS bill passed, which was defeated by the Democratic-controlled house 398-17. Were the numerous Democrats who opposed her bill basing their oppositoin on decades-old comments.
        (3) Nicely-loaded question describing Israel as “nowhere close to the worst human rights offender in the world.” Where exactly would you rank Israeel when compiling a list of “human rights offender”?
        (3)

        1. Thanks WillDD for your substantive response to one of the grb’s three Qs (no sarcasm intended; in this crowd on this topic, .333 seems a decent average)

        2. There was nothing “loaded” about my questions. Saying the BDS movement is anti-semitiv because you say it’s anti-semitic isn’t an argument. It’s a fact their are hundreds of BDS groups whose aims and tactics are similar to those of the anti-apartheid boycott. How do you reject one as inherently evil and not the other? For your second question : Politics. That you bothered to ask it shows the weakness of your case.

          As does your third. It’s kinda of funny that so much of the anti-BDS case is based on the fact other countries are worse that Israel, so protests against them are somehow illegitimate. Presumably no one can adopt any cause except that of (say) North Korea, because the Chinese and the Uighurs are only in second place. There are a myriad of reasons why the Palestinian cause is so prominent, and I bet some of those reason are similar to why the anti-apartheid cause once took hold. But those reason have nothing to do with being anti-white or anti-semitic.

      4. Since you asked.

        1a. Just because something’s methods are modeled on something else, doesn’t mean its the same. You need to take context & motive, as well as ultimate goals into account. The ultimate goals of the BDS movement is the eradication of the state of Israel and the Jewish people within. A boycott to support such goals is reprehensible.

        1b. Remember, Israel is not apartheid. Nearly 20% of Israel’s voting citizens are Arabs. The same was not true about South Africa. What BDS is demanding is that an “occupied territory” get the voting rights within their occupier. Which is absurd. Japan didn’t get to vote in US elections in 1946. Iraq didn’t get to vote in US elections in 2005. Moreover, Gaza doesn’t fit the definition of an occupied country, as there isn’t a single Israeli troop within Gaza. More on this later.

        2. BDS is antisemitic because it’s current international leaders make antisemitic statements, and are closely linked/are with terrorist groups that are antisemitic. In the last two years, 30 financial accounts linked to BDS were shut down in Europe and the US due to their links to terror groups. Its current propaganda uses hate filled rhetoric, demonization and delegitimization against Israel and its Jewish citizens. The maps on its Facebook pages eliminate the state of Israel entirely

        3. It is, ahem, unique that it always seems to be the Jews in Israel that are the target here. Remember, Israel is not apartheid. 20% of its voting citizens are Arabs

        1. 4. By supporting (or arguing for) BDS, what you’re doing is ignoring history & context, and enabling another round of antisemitism to creep into society, rather than stamping it out. Where ever you see BDS make inroads on college campuses, you also see a spike in antisemetic protests and videos. Think of BDS like a version of the KKK. “Oh, it’s OK, it’s just like the Knights of Columbus, they’re just a group of people dressing up in white hoods. Oh, that’s odd, whereever there’s a KKK outfit, suddenly you see a spike in attacks on African Americans”.

          5) Most importantly here, remember the context and the amazing restraint in the Israeli government. In 2005, Israel unilaterally withdrew from Gaza. Not a single troop remained, it was self governing & self ruling. In response, Gaza elected a terrorist government with Hamas, and proceeded to over the next 14 years to lob THOUSANDS (from 2005 to 2015, more than 10,000) of rockets into Israel, indiscriminantly targeting, wounding, and killing, Israeli civilians and children. The motives? Arguments that violence against Jews is a religious obligation that brings Hamas closer to God. Seriously, if the same proportional violence had happened to the US, Gaza would no longer exist. When you support BDS, this is what you support. The indiscriminate targeting, maiming, and killing of Jewish children by terrorist rockets. BDS wants a “one state” solution, where Palestinians, under a Hamas government would rule all of Israel-Palestine. How long do you think the Jewish population would survive that?

          1. “When you support BDS, this is what you support. The indiscriminate targeting, maiming, and killing of Jewish children by terrorist rockets. BDS wants a “one state” solution, where Palestinians, under a Hamas government would rule all of Israel-Palestine.”

            That’s not what they *say* they want. They have 3 goals which seem rather more modest. Do you agree with those goals, and if not, why? It seems hard to make progress when (I assume) each side claims to be the expert on the other’s true position.

            1. That “is” what they want. That is what the so called “right of return” leads to. A Hamas-loyal-Palestinian majority voting in Israeli elections, sweeping out the Jewish parliamentarians into a minority.

              Then take a look at the Hamas Charter, and take a guess what happens to the Jews under a Hamas-run government.

              1. Do I get to say that the Israeli government wants slaughtered Palestinians? I don’t think this, but your broad brush causality logic would seem to require it, given which side has thusfar killed more children of the other’s.

                Unless, of course, it’s that Israelis are just good and Palestinians are just bad, so lets go all in with the double standards.

                1. You can say it. But you would be wrong. Because the evidence points the other way. The simple truth is, if Israel wanted to eradicate the local palestinian population, they could. They have that power. But they don’t.

                  Meanwhile, every other arab county has eradicated it’s native Jewish population since 1945. Hamas has a charter that literally proclaims Jihad against the Jews. Hamas deliberately targets civilians, while hiding its command staff under hospitals filled with human shields of its own people. It is a terrorist organization. If Hamas controlled all of Israel, the consequences would be devastating.

                  But, perhaps, you think, it’s just Israel. Why do I care? Well, consider this then. Israel has Nukes. If Hamas took over Israel, Hamas would have Nukes. One of the largest concentrations of Jews outside Israel is New York City. And we know Hamas doesn’t care about its people nearly as much as killing the Jews.

                  1. Israel not eradicating the Palestinian people is completely separate from their killing more in absolute numbers than the Palestinians have killed of Israel’s.

                    I tend to think Israel had the moral high ground precisely because was largely reacting in an understandable way until about 2016, when Netanyahu has gotten a bit more one state tacit slow eradication in his rhetoric and policies.

                    But we’re not really on the same side – I see that you really do think that one side is good and the other evil, and that any double standards are okay because terrorists and trying to fearmonger 9-11 part II.

                    You’re actually part of the problem. Israel will never be at peace if your dehumanization of the opposition continues to prevail, because how can you negotiate with subhuman scum?

                    1. You’re actually the problem.

                      Negotiation with terrorists doesn’t work. It just encourages more terrorists. And Hamas is a terrorist group. When you sympathize with and help their goals, it just encourages more terrorism. You’re making the same mistake France made in 1938.

                    2. How does your logic end in anything other than Palestinian genocide?

                    3. The United States did not negotiate with Al Queda. This did not result in the genocide of the Afghani people. The most obvious way for this not to result in “genocide” is for the Palestinians to elect a government that renounces terrorism and terrorist attacks, and follows through on that.

                      But so long as terrorist and terrorist rocket attacks continue, negotiation is off the table. Because so long as terrorist attacks continue to “get results” and gain sympathy from the outside world, they will continue to be used.

                    4. Ah. So just an occupation that would make Belgium blush then.

                      No negotiation, just occasional military incursions with a death to vastly higher than the rockets bring is not a viable strategy in the long-term. Plus, of course, settlements that screw with any future attempts at negotiation. Just out of spite, it seems.

                      If you care about Israel more than you care about sticking it to the Palestinians, you’ll stop wallowing in dehumanization of the other side as terrorists unworthy of anything but death.

                    5. “Not a viable strategy in the long term”

                      Perhaps not. But there’s necessarily not a better one. Gaza is unoccupied by Israeli forces, with absolutely zero settlements Self-governing, self-ruling, and it chooses, under its terrorist government, to repeatedly murder Israeli civilians.

                      Meanwhile, Gaza’s “military” arm and terrorist leadership, such as it is, hides under civilian hospitals (in violation of international law, but that’s only enforced against Israelis), hoping Israel dares to actually attack it. It’s a “heads I win, tails you lose” type of situation. Either Gaza’s leadership (the people responsible for these attacks) is safe from counterstrike OR Hamas gets a lot of poor victims to show off to the international community, like you, and to complain about the “uneven death toll”. The palestinian civilians in that hospital… Hamas is more than willing to sacrifice them for its goals.

                      But maybe we can come up with a better plan. What do you think? Ideally Gaza would change from its terrorist leadership, like we ultimately made Germany change from its Nazi leadership. But if it doesn’t? Perhaps resettlement is a better option? What do you think?

                    6. ” The most obvious way for this not to result in “genocide” is for the Palestinians to elect a government that renounces terrorism and terrorist attacks, and follows through on that.”

                      OK. What, hypothetically, is the result if someone who is not the government elects to carry out a terrorist attack? Say, a suicide bomb, so that the actual perpetrator is beyond justice. What actions, if any, are justified against the government and the people who did not have any role in the terrorist attack? Or, for that matter, any other government or people that had no role in the attack.

                  2. “Well, consider this then. Israel has Nukes. If Hamas took over Israel, Hamas would have Nukes. One of the largest concentrations of Jews outside Israel is New York City.”

                    I just positively hate to point out to you that Pakistan has had nukes, sorry, Nukes, since the 1970’s. Of course, that was back before NYC had such a substantial population of Jews…

              2. “That ‘is’ what they want. That is what the so called ‘right of return’ leads to. A Hamas-loyal-Palestinian majority voting in Israeli elections, sweeping out the Jewish parliamentarians into a minority.”

                OK. Now, I’m going to join you in guessing that being the minority in Israel would not be a wonderful, pleasant experience, based in large part on the fact that it appears, at present, that being the minority in Israel is not a wonderful, pleasant experience.
                Maybe should have thought of that before setting up the country in a place where so darn many Arabs lived at the time.

        2. 1 & 2 : There are hundreds of separate groups and organizations who support BDS. For every one where you pick-out a statement calling for Israel’s eradication, I can point to scores of groups where that is not the case. The vast majority of BDS groups share similar aims to those of the past anti-apartheid movement : Economic pressure to achieve political change for what they believe is the cause of justice.

          1b & 3 : You need to be blind to believe Israel’s Arab minority has equal rights and receives equal justice, but that’s not the major issue. That Israel now isn’t a fully apartheid regime depends on the existence of the Palestinian Authority, a cobbed-together body which was supposed to only exist as an interim measure. It has no real autonomy and manages something that is neither a free state or part of Israel. Without it, Israel is exactly the same as South Africa, managing a whole population which is given no political rights.

          There are only three possible directions for Israel : First, they accept all peoples under their control as full citizens, in which case Israel soons cease to be a Jewish state. Second, they accept apartheid as their direction, along with the increasing approbation of the world. Third is two states, Israeli and Palestinian. It’s a wonder so many of Israel’s strongest supporters refuse to face those cold hard facts. Their leaders are only concerned with the moment’s politics and the shortest of short-term gain. No one talks about Israel’s future. Of course the Palestinian leadership is equally blind. That’s why this issue is fought on meaningless ground, such as what international organization admits the Palestinians, or whether Israel’s supporters get anti-BDS laws passed in the U.S. For both sides it’s anything to avoid the hard choices both sides must make.

          1. 1. BDS groups call for the following, among others.
            A. A right of return that would make Israel a Jewish minority state
            B. Pulling down the security barriers between Israel and Gaza that prevent Hamas terrorists from infiltrating and killing Israeli citizens.

            But I answered your questions. Perhaps you’ll answer mine.

            1. Do you agree BDS calls for a right of return to for all Palestinians?
            2. Do you acknowledge this would make Israel a Jewish minority – Arab majority state?
            3. What has happened to the Jewish minority in every other Arab majority state?
            4. Should Hamas gain access to Israeli nuclear weapons? If not, how do you propose stopping this, if Hamas is elected as the government of Israel once Arabs are a majority?
            5. Can you give any specific examples of how Israel’s Arab Citizen population is discriminated against, besides not being forced into the military (but they can volunteer).
            6. How many Arab Israeli citizens are denied the right to vote?
            7. How many Arab Israelis are members of the Knesset
            8. Do you support the Jewish right to return? Why or why not?
            9. How many Jewish people are members of the parliament in any Arab majority country?
            10. If Gaza elects to fire rockets and kill Israeli citizens, is Israel allowed to defend itself? How exactly?
            11. Is Israel allowed to defend its borders against terrorists from Gaza who would infiltrate Israel and commit suicide bombings? If so how? If not, why?
            12. Should Palestinans have the right to return to Egypt and Jordan? Or just Israel?
            13. How many Arabs remained in Israel after the 1948 war? How many Jews remained in Palestine after the 1948 war? Why the difference?

            I’ll wait.

            1. The fact that it is reasonable for Israeli Jews to fear becoming a minority in the country (assuming it is a fact, arguendo) doesn’t change the fact that artificially maintaining their majority by displacing the Arabs who were born there, or descended from people who were born there but displaced is an injustice.

              If the Israeli Jews don’t want to live in an Arab country, perhaps they shouldn’t be living in a country that was full of, and surrounded by, Arabs when it was formed.

              The core problem is that both sides have some wrong in their ledgers. Yes, they do. The “but their side has terrorists!” argument may make it easy to choose a side, but it doesn’t erase the wrongs of the other side.

              1. I love these “both sides have done some wrong” arguments. Like, one time a Jew stole something from a German in 1933, and then the Germans went and killed a few million Jews, but both sides have done some wrong. And really we need to focus on the injustice of that theft in 1933.

                1. “I love these “both sides have done some wrong” arguments.”

                  I bet you do. I notice you didn’t bother to refute it…

    2. “The “BDS movement” is a thinly veiled antisemitic hate organization”

      It is perhaps time to point out that BOTH SIDES of that particular conflict are “semitic” peoples. If you mean “anti-Jewish”, say “anti-Jewish”.

      1. Well, then it would be time to point out that your pedantry is misplaced, because anti-semitic is a word coined to mean anti-Jewish, not “anti-semitic peoples.”

        1. You’re, um, wrong. Sorry.

          1. Google:
            an·ti-Se·mit·ic
            /ˌan(t)ēsəˈmidik,ˌanˌtīsəˈmidik/
            adjective
            hostile to or prejudiced against Jews.

            Language is not a completely ordered system sometimes.

            1. I had always understood that the term “anti-semite” was coined by the 19th century German anti-Jewish agitator Wilhelm Marr, founder of the League of Antisemites.

              https://www.jewishvirtuallibrary.org/wilhelm-marr

              You could say that his linguistic and racial analysis wasn’t fully scientific or accurate, but that’s the term he used, and how the term got introduced into various languages – and he wasn’t criticizing Arabs, just Jews.

              Technically caucasians aren’t always from the Caucasus, either.

              The Romni and Romanians aren’t necessarily Roman.

              Calling people assholes doesn’t mean you’re literally calling them rectums.

              Etc.

            2. “Semitic” means what it means, and has meant the same thing, for a couple of thousand years.

              1. You’re simply flaunting your ignorance here.

  6. This is pretty much a contract dispute. And a pretty arcane one. Why should we care?

    1. There have been complaints VC only cares about what public universities do because government. So they so now track some cases in First Amendment-like issues where private universities (not bound by it) nevertheless violate their own boilerplate mission statements about academic freedom and whatnot. (Would these be some kind of contract, thus enforceable?)

      Havng said that, this does seem like a case on technical issues. Presumably once done right, they can just cancel it. As it is private, it’s up to them to decide if a BDS organization is itself respecting cultures, and government has no role in that analysis.

      1. The Volokh Conspiracy’s dividing line on which campuses to criticize customarily involves partisan rather than public-private lines.

        Conservative-controlled campuses get a vivid pass on censorship, loyalty oaths, speech codes, viewpoint-based discrimination (in everything from admissions to hiring basketball coaches and janitors), rejection of academic freedom, old-timey conduct codes, and suppression of science.

        Liberal-libertarian mainstream schools, however, public and private alike, experience regular ankle-biting.

        Anyone still wonder why our stronger schools decline to accept the Conspiracy’s repeated invitations to emulate our conservative-controlled schools (found mostly in the fourth-tier and unranked sections) by hiring more movement conservatives for faculty positions?

        1. 1) Is banning a BDS group a conservative action or a liberal/libertarian action?

          2) Are Jesuit college administrators on your team because they’re hip and progressive like Pope Francis, or are they on the other team because in theory they believe in some badthink doctrines (which in reality they don’t impose on their students or faculty)?

          So many confusion questions for Kirkland, how will he resolve all these dilemmas?

          I presume the answer involves name-calling.

          1. RAK, the Royal Arse Kisser, is always confused, with or without questions!

        2. You think that’s why but it isn’t. There are plenty of examples where they defend constitutional freedom against the right.

          99% of human problems historically can be traced to use of force to impose one’s will. For this reason, the private actions causing the remaining 1% of problems is largely ignored.

          This isn’t a flaw in their philosophy and concern.

  7. Typo?:

    I presume “Not that, if this was at a public university, the…” should be “Note that, if this was at a public university, the…”

  8. As is often the case through history, the only honorable thing to do is break the rules.

  9. I generally don’t support the BDS movement, or state action targeting the BDS movement, but private universities generally seem to be accorded a shockingly limited right of expressive association.

    1. Some private schools seem to have maintained control of their campuses.

      1. Yes, the opinion of a disgruntled, attention-seeking student as published by the WaPo was interesting, particularly for its conspicuous omission of Ted Kennedy’s 3-Oct-1983 speech at (what was then) Liberty Baptist College.
        Kennedy beings “Actually, a number of people in Washington were surprised that I was invited to speak here — and even more surprised when I accepted the invitation. They seem to think that it’s easier for a camel to pass through the eye of the needle than for a Kennedy to come to the campus of Liberty Baptist College. […] I have come here to discuss my beliefs about faith and country, tolerance and truth in America. I know we begin with certain disagreements; and I strongly suspect that at the end of the evening some of our disagreements will remain. But I also hope that tonight and in the months and years ahead, we will always respect the right of others to differ, that we will never lose sight of our own fallibility, and that we will view ourselves with a sense of perspective and a sense of humor. After all, in the New Testament, even the Disciples had to be taught to look first to the beam in their own eyes, and only then to the mote in their neighbor’s eyes.” The entire speech (both text and video) are available at https://americanrhetoric.com/speeches/tedkennedytruth&tolerance.htm

        The video is interesting, as students didn’t shout-down Kennedy’s remarks. Ah, the good ole days.

        1. Edward Kennedy was one of our betters, leaving clingers like Kopechne behind.

          1. He kept winning Senate races. How many did you win?

            1. Jesse Helms kept winning Senate Races. How many did you win?

              1. How, exactly, does Jesse Helms (or me) have any relevance.

                BTW… I won every Senate race I entered.

                1. The ability to become, in effect, a Senator for life by exercising all the arts of the demagogue wasn’t always celebrated as achieving the American Dream.

                  The American Dream used to be based on doing something productive.

                  1. “Sour grapes! Sour grapes!” cried the fox.
                    –Aesop

                    1. I’m actually the Ghost of Strom Thurmond, posting from beyond the grave.

                      Doomed for a certain term to troll the Net
                      And waste my time replying to retards,
                      Till the foul crimes done in my days of nature
                      Are burnt and purged away.

                      I’ll put my near-half-a-century of Senate service against that of Edward Kennedy, that spring chicken.

                    2. “And waste my time replying to retards,”

                      Ah, so you can keep yourself busy.

                    3. You seem very sensitive to my reference to “retards.”

                    4. “You seem very sensitive to my reference to ‘retards.'”

                      I hate to see you so down on yourself. It’s probably not your fault that you got dropped on your head at an early age.

                    5. Can’t you do better than simply repeat some variant of “I know you are, but what am I?”

                    6. “Can’t you do better than simply repeat some variant of ‘I know you are, but what am I?'”

                      Not if I want you to be able to follow.

                    7. “I know you are, but what am I?”

                      “lol ur stoopid”

                      Repeat as often as necessary.

                      /Pollock’s contribution to public discourse

                    8. “Pollock’s contribution to public discourse”

                      Odd that your name is attached to it, then.

                    9. The crimes which I, Strom Thurmond, did in life must be particularly egregious if I’m expiating these crimes through talking to you.

                    10. You keep choosing to do it, so how is that anyone else’s problem?

  10. Seems to be the right decision from a contract interpretation (which is what this is). If the university wants to keep anti-Semites from forming racially discriminatory hate groups then they need to either pay better attention to what’s going on or amend their rules. Although they would need to be careful about explicitly prohibiting anti-Semites since that would probably expunge the local DNC.

    It also looks like the school could have been a bit more honest with why they were denying approval to an explicitly racist group. Instead of saying:

    There is perhaps no more complex topic than the Israeli-Palestinian conflict, and it is a topic that often leads to polarization rather than dialogue. The purpose of the organization as stated in the proposed club constitution points toward that polarization.

    the school could have said something like “racist student groups are not permitted” and avoided suit altogether.

    1. Keep weakening that brand.

    2. the school could have said something like “racist student groups are not permitted” and avoided suit altogether.

      Banning the College Republicans seems wrong.

    3. Once again the reflex that anything that opposes the Israeli government is “anti-semitic”. What about the slightly less than half of the Jewish population of Israel that opposes their own government?

  11. I can’t access the westlaw cite because it’s out of my subscription. Can someone give me a brief explanation of what the cause of action/basis of suit was by the student group? Is this just breach of contract, or what?

  12. I don’t know if Prof. Volokh is still following these comments, but here’s a report of a federal court decision related to a speaker/employment controversy at a Quaker school:

    https://afriendlyletter.com/friends-central-school-discrimination-lawsuit-fired-teachers-win-the-first-round/

  13. It s like requiring a university to recognize a Friends of Al Queda club.

    You would think a judge in NYC would be more careful with recognizing pro-terrorism groups.

    1. You would think a judge in NYC would be more careful with recognizing pro-terrorism groups.

      We have actual experience with terrorism, so we’re tougher than that.

      1. Yeah, and New York’s response was to declare that Muslims are their friends, neighbors, and countrymen. We learned nothing.

        1. You learned nothing, that’s for sure. How many 9/11’s have their been in NY since, you know, 9/11?

  14. I’m curious if there is some kind of Auer-like deference when NY courts interpret university rules. Sounds right that this case proceeds past a motion to dismiss, but I think the university would have a decent case that the veto authority is rather broad, and exercised for articulable reasons. Maybe still not enough?

  15. I’m most bothered by the court saying “What Fordham’s Mission ACTUALLY is, is X, Y and Z. That’s a little chilling. I’m also bothered by the fact that the operative documents place zero fetters on the dean’s decision to veto a group approval, yet the court invented some. I agree with the philosophical underpinnings of the court’s discussion but think they got this one wrong.

    1. That’s exactly my problem. What business does a civil court have reading a university’s general, aspirationally worded mission statement, and then telling the university what it’s mission is against its will?

      Libertarians will very understandably not be happy with this university’s attempt to squelch a group’s political speech. But the approach the court used to justify intrusion could easily be used to force universities to do things the state’s way in cases where it’s the state that’s squelching alternative speech.

      1. “What business does a civil court have reading a university’s general, aspirationally worded mission statement, and then telling the university what it’s mission is against its will?”

        That’s how terms in a contract of adhesion are interpreted. If they wanted to have the authority to squelch the creation of student groups, they should say, unequivocally, that the dean has the power to squelch the creation of student groups.

        In much the same way as any other writer of contracts of adhesion has to be careful to reserve EXACTLY what powers it reserves to itself if it claims on its face to offer guarantees of customer satisfaction.

        1. The rules said the dean has authority to veto student group proposals. Is there a meaningful difference between “veto” and “squelch?” The court used its interpretation of Fordham’s general mission statement as cabining the Dean’s veto discretion.

          1. The rules also said how and when the dean could veto student group proposals, and the how and when were not absolute discretion by the dean at any time, for any or no reason.

        2. To be more specific, the rules say a new student organization requires the approval of the Dean of Students. So the act of not approving is the equivalent of squelching.

          In overruling the dean, the court used priniciples of administrative law – law used for review of GOVERNMENT agency decision – and the court’s own interpretation of Fordham’s mission statement to conclude that the dean’s disapproval decision was arbitrary and capricious.

          Such a decision gives courts wide powers to overrre actions and decisions of private universities based on judge’s own interpretation of very general, aspirational mission statements.

          The problem is the breadth of the court’s claim to have authority to decide. If a court can overrule decision about a student group on this basis, it can equally well overrule decisions about curriculum, tenure, grades, the quality of academic work, anything a university does.

          1. ” it can equally well overrule decisions about curriculum, tenure, grades, the quality of academic work, anything a university does.”

            Yes. This is desirable. The organization can be held to the promises it makes to its customers, like, oh, any other business can.

            1. And a newspaper would be the same? Interpreting phrases like “All the news that’s fit to print” As terms of a business contract, it follows that if a judge independently decides an article is part of “all the news,” it has to be printed. And if a judge decides it isn’t “fit to print,” then the newspaper’s editors get overruled and out it goes.

              Ergo. With judges at the helm, the newspaper is forced to keep its business promises to its business customers. And this is a good thing? Right? It would seem to follow from your logic.

              1. I’m glad you don’t subscribe to my newspaper.

                The choice of picking up a newspaper (or not picking up a newspaper) on the way to work is not QUITE on the same scale as deciding which university to attend.

  16. Administrative law addresses the way government interprets its own rules. Contract law addresses interpretation of agreements between commercial parties, strangers to each other and each acting for personal profit.

    Neither strikes me as a very good metaphor for the way a university relates or should relate to its students.

    Setting aside what I might personally think about the group involved, and also setting aside the sort of rules so might personally want for a university, I am not comfortable with this level of government intrusion into the private affairs of a university, even one whose behavior I might personally not like. It does not seem to me that the general aspirational principles the court cited as its basis translate into hard decision rules justifying court intrusion, particularly since the rules give the dean a discretionary veto power.

    Much as I am not happy with universities banning student groups whose speech and ideas they feel uncomfortable with, I fear government intrusion into private university affairs, even intrusion to force universities to act in accordance with principles I might agree with, more.

    1. “Neither strikes me as a very good metaphor for the way a university relates or should relate to its students. ”

      How about products liability?

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