The American Civil Liberties Union of Northern California, an affiliate of the national ACLU, has written a letter to the U.S. Department of Education's Office of Civil Rights (OCR). No, it was not just a friendly greeting in the spirit of the season.
But the letter is not unfriendly. Its intent is to provide helpful advice, and its advice is indeed helpful. Whether OCR takes the advice, however, remains to be seen. If it doesn't, ACLU may get even less friendly.
The ACLU letter concerns a July 2012 Complaint filed by two attorneys against the University of California, Berkeley alleging that its Jewish students were harassed and subjected to "a pervasive hostile environment" on the basis of their "shared ancestry or ethnic identity as Jews." ACLU makes clear its strong support for OCR's mission to investigate complaints of discriminatory harassment and hostile educational environments.
But ACLU is equally concerned with First Amendment freedom of expression. The letter notes that the Northern California affiliate has been involved "in a number of instances in which similar claims have arisen as a result of the activities of pro-Palestinian and/or pro-Israeli student groups on campus." It acknowledges that these can be hard cases, but warns that the present Complaint "raises constitutional red flags."
The Complaint, continues the letter, consistently ignores a "paramount constitutional message." "Above all else," the Supreme Court has declared, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content."
The letter notes that the facts and legal claims in the present Complaint were already the basis for a federal lawsuit previously brought by the same attorneys. The claims were dismissed because they involved, in the court's words, "pure political speech and expressive conduct, in a public setting, regarding matters of public concern, which is entitled to special protection under the First Amendment."
Unsatisfied with that conclusion, the attorneys transformed the suit into an OCR Complaint. The discriminatory harassment of Jewish students, they argue, is exemplified by the annual "Apartheid Week," during which students associated with Students for Justice in Palestine and the Muslim Student Association organize a mock checkpoint to simulate Israeli military checkpoints in the West Bank.
But the checkpoint, ACLU points out, is in Sproul Plaza, the "historic center of free speech" at Berkeley. The protest is intended "to convey a political viewpoint," specifically that the Israeli occupation is discriminatory, unjust, and oppressive. Some Jewish students may find these expressive activities "racist and anti-Semitic" but government or university action to prevent or punish them would violate the First Amendment.
"Speech that criticizes the State of Israel," writes ACLU, "or even questions its right to exist as a Jewish State in the region, cannot constitute the basis for government restriction." The ACLU letter acknowledges "that Apartheid Week goes beyond a speech or a leaflet," but the fact that it "involves barbed wire and the depiction of Israeli soldiers using harsh and even coercive methods ... does not alter the constitutional calculus."
The letter is clear that Jewish students, like all students, have a "right to equal educational opportunity" and must be protected from "discriminatory harassment that creates a pervasive hostile academic environment." Indeed, ACLU has long argued that government has a "compelling interest" in equal educational opportunity.
This cannot justify censorship or punishment of political speech, however, unless there is "intentional harassment of specific persons on the basis of race, national origin, or one of the other protected categories." The perception that a message is "deeply offensive or bigoted or hateful does not by itself transform speech into actionable harassment."
ACLU is not expecting OCR to write back soon. In fact, it has not asked OCR to write back at all, but its letter does request prompt action. Investigations of speech have a "chilling effect" on freedom of expression. This is particularly serious when the investigations are prolonged and open-ended.
OCR has been clear that its regulations "are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution." It should conclude the present investigation promptly, writes ACLU, lest its own inaction serve to chill freedom of speech.
At the intersection of equality and liberty lie many hard cases that require careful consideration of complex evidence and subtle balancing of competing rights. But this is not one of them. If I were the OCR I would listen to the ACLU and uphold free expression at Berkeley.