The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Montclair State University student government orders Students for Justice in Palestine to "cease and desist" "political propaganda"


Fortunately, the student government and the University General Counsel, prodded by the Foundation for Individual Rights in Education, rescinded the restriction. FIRE reports, with links to the original documents (which I have read):

On September 22, MSJP members handed out pamphlets at the group's registered table in the MSU's student center. The pamphlets described the group's values, planned activities, and views on the Israeli-Palestinian conflict. Upon receiving complaints about the overtly political and "offensive" nature of the pamphlets, SGA Attorney General Demi M. Washington sent a "Letter of Sanction" to MSJP, condescending to the group, "Must I remind you, you are a cultural organization and not a political one."

In no uncertain terms—and in complete violation of the group's First Amendment rights—Washington warned MSJP that its political expression was unwelcome and unacceptable on MSU's campus:

Montclair State is a university that unites students regardless of race, religion, ethnicity, nationality, gender or sexual preference. We do not take positions in political issues….

We have strict rules from the government on how to run the organization while remaining in non-profit status…. Part of the list of things we cannot be associated with is any political or lobbyist organization.

MSJP didn't receive only a reprimand from Washington; her letter imposed a five percent fine on the group's fall semester budget as well as an order that the group cease all "political propaganda." Washington's letter also warned that, unless MSJP focused its events solely on Palestinian culture rather than politics, the group's charter would be revoked.

On October 3, FIRE sent a letter demanding that these sanctions be reversed and reminding the MSU administration and the SGA that such unfair treatment of a student group, based on the political nature of its speech, is unconstitutional viewpoint discrimination at a public university bound by the First Amendment.

In her letter to MSJP, Washington claimed that the school's tax-exempt status forbid the SGA, as well as student organizations, from partaking in political speech. As our letter pointed out, this argument is flatly wrong:

MSU and the SGA have created a forum for a diverse collection of student groups with a wide array of viewpoints, and, in light of these and similar precedents, the speech of these groups does not jeopardize either MSU's or the SGA's tax-exempt status. Indeed, Internal Revenue Service training materials have likewise drawn a distinction between "the individual political campaign activities of students" and those of their university. The agency has noted that "[t]he actions of students generally are not attributed to an educational institution unless they are undertaken at the direction of and with authorization from a school official."

FIRE's letter noted that Washington's argument is not only incorrect, but potentially insincere as well:

FIRE is concerned that Washington's justification is disingenuous and pretextual. Fearing that any political speech by a student organization would jeopardize the tax-exempt status of either MSU or the SGA strains credulity. Expressly partisan student groups (e.g., College Democrats, College Republicans, and a host of issue-driven groups) are recognized and funded at tax-exempt colleges and universities (and under tax-exempt student governments) across the country. Additionally, even a cursory review of MSJP's chartering documents reflects its intention to engage in cause-based activism—yet no objections were raised during the organization's chartering process….

Recognizing that the actions taken against MSJP appeared to be in response to the group's controversial message rather than any violation of school policy, SGA President Kristen Buck responded with a letter on October 8 rescinding all allegations and sanctions against MSJP. Buck reaffirmed that "the SGA recognize [sic] that persons and organizations on the University's campus have the right to express their views and those who disagree with those views have a right to express their contrary views." …

Note that the Supreme Court has held (in Board of Regents v. Southworth (2000) that university student governments may not discriminate based on viewpoint when making student activity fee funds generally available to student groups. A student government could impose viewpoint-neutral though content-based restrictions on such funding, but as FIRE points out, the restriction here was likely based on the group's viewpoint—unless, as seems highly unlikely, student government was indeed refusing to fund any ideological advocacy by student groups.