Agency’s final determination reaffirms that political speech is protected
The US Department of Education’s Office for Civil Rights (DOE) definitively denied two appeals challenging the dismissals of Title VI Complaints filed against University of California (UC) Berkeley and UC Santa Cruz. The original complaints, filed by Israel advocacy organizations in 2012 and 2011 respectively, alleged that Palestine activism and scholarly lectures critical of Israeli policy created an anti-Semitic hostile climate for Jewish students. The DOE dismissed the complaints in August 2013, emphasizing that the activity complained of was political speech, protected by the First Amendment.
The denial of the Berkeley and Santa Cruz cases is the final agency determination, and it reaffirms what the DOE emphatically stated in its original dismissals, that student demonstrations and other programming in support of Palestinian rights:
constitute expression on matters of public concern directed to the university community. In the university environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience. In this context, the events that the complainants described do not constitute actionable harassment.
The complainants appealed the UC Berkeley and UC Santa Cruz dismissals in October 2013 and the DOE issued notices denying the appeals on June 6, 2014. The denials were not publicized by the complainants, but disclosed to Advancing Justice – Asian Law Caucus via a Freedom of Information Act (FOIA) request.
A similar complaint was filed against UC Irvine in 2007 and dismissed by the DOE in August 2013. The FOIA documents obtained did not contain information indicating that the Irvine dismissal was appealed. A complaint with similar allegations was filed against Rutgers University in 2011. The DOE dismissed the complaint in July, 2014 and FOIA records indicate that the decision was appealed. The appeal is believed to be pending.
The original Berkeley and the Santa Cruz complaints, along with the appeal letters, were riddled with false allegations, and premised on the theory that criticism of Israel is anti-Semitic.
Palestine Solidarity Legal Support and partners have expressed to the DOE that the complaints have a chilling effect on students’ speech activities related to Palestine, and that the DOE must make clear to organizations that file politically-motivated complaints that the First Amendment unequivocally protects the activities that were targeted in these complaints, including holding demonstrations, distributing flyers, street theatre and other activities that expressed criticism of Israeli state policy and support for Palestinian rights.
While there continue to be threats of Title VI complaints against other universities, PSLS is confident that the DOE recognizes these claims as attempts to silence certain speech on Israel/Palestine, and that the dismissals will discourage the continued abuse of important civil rights laws to deter Palestine activism on campuses.