When is a hostile campus environment protected by the First Amendment?

I'm an alumnus of the University of California.  The Davis campus, specifically.  I can't say that I am active in alumni affairs and I really pay very little attention to what happens at the U.C. system.  I know it's dominated by liberals and much of what makes news about the system is not something I support.

Something that happened recently, however, did get my attention.  There is an organization, founded in the Palestinian Arab territories and spreading throughout the world, that is a thinly veiled alter ego of various Islamic extremist groups (Hamas, primarily).  This organization, known as "BDS" (for boycotts, divestment and sanctions against Israel) has been operating in Europe for some time and it is now making a strong public push throughout the United States, primarily on college campuses.

When BDS first starting making news I didn't know what it was.  I did a bit of research into it, which caused me to do a lot more research, which then led to a full blown legal study that is memorialized in a 128 page scholarly paper that I recently published.

After publishing the paper, which demonstrates that BDS activity in the United States is in violation of a number of federal laws, I thought I'd let the paper filter its way through the system and perhaps it would result in enforcement of the laws that are being violated.

But in early February of this year, the BDS movement made a very public and very hate-filled splash at my alma mater.

At first I thought "par for the course at the U.C. system, it's been populated by anti-Semites for a long time, even when I was a student."

Then I thought a bit more, reflected upon how they enforce a strict policy of not  allowing anything that offends just about every other minority constituency and further noted that the BDS movement, which is affiliated with exceedingly intolerant extremist Islamic groups (those who do things like throw alleged homosexuals from 10 story buildings and then stone the victims to ensure that they are dead), clearly is not in line with the U.C. policy on offensive speech and conduct.  I wondered how the U.C. system could countenance the presence of a group that would, if it is allowed to fulfill its objectives, leave every U.C. campus filled with corpses of anyone who wasn't a straight, observant Muslim?

After finishing those thoughts and reflections, I penned a letter to the U.C. Davis administration.  I'm quite sure that they will not respond to my letter (it's a rare day when a conservative voice gets a fair hearing in any forum related to California's government), so I thought that I would post the letter here as an open letter to the U.C. system.

Below is the letter, sent on February 2, 2015, and followed up with a more detailed letter to the General Counsel of the U.C. system, Charles Robinson, on February 4, 2015.  I'm not posting the letter to Mr. Robinson here, simply because it's a more technical elucidation of the legal principles set out in the letter below.

February 2, 2015

Dear Chancellor Katehi, Provost Hexter and Vice Chancellor de la Torre:

As an alumnus of U.C. Davis (class of 1986), I was ashamed and horrified to see the recent attack on the Alpha Epsilon Pi fraternity at U.C. Davis.  While I’m sure that no one can definitively prove who was behind the racist attack at this point, I think that we can all comfortably presume that the attack is connected to the recent vote by the Associated Students of U.C. Davis to support an illegal boycott of Israel that is promoted by affiliates of a group known as “BDS”, which vote was opposed by the Alpha Epsilon Pi fraternity.

Not only am I an alumnus of U.C. Davis, I am the son of a holocaust survivor. There are no words to express the concern I feel in seeing symbols of a movement that slaughtered so many of my family (not to mention millions of my people) used as part of an attack on a fraternal organization with a Jewish foundation.  I know that you have condemned this attack, but condemning the attack is not enough.

When I was a student at U.C. Davis, I participated in the anti-apartheid protests that were promoted by the very same Associated Students who now support BDS.  Not long after I began participating in the anti-apartheid protests, a gathering of prominent anti-apartheid activists, including Desmond Tutu, came to U.C. Davis to speak to students on the quad.  I went to this rally and experienced something that I believe will help you to understand the real nature of the BDS threat.  

On the stage surrounding Mr. Tutu were signs condemning Israel and Zionism.  I confronted one of the organizers and said that as a Jew and Zionist, I didn’t understand the connection they were making.  The response I got was an angry and derogatory diatribe against Jews and Israel.  I was told that if I supported Israel, I was not welcome at the rally or as a participating in the anti-apartheid movement.  I approached  the University’s administration shortly after the rally to complain that it was a breeding ground for anti-Semitism and was told that there was nothing that could be done.  Even in the mid-1980s, anti-Israel rhetoric and hate speech was present and tolerated on the U.C. Davis campus.

In the 30 years since that occurred on your campus, things have become ever more hostile for Jewish students at Davis.  When it comes to anti-Semitism, there has been, to be charitable, a look-the-other-way attitude on the part of the University administration.  If the hostility directed at Jewish students were to have been directed at any other group, especially another minority group such as, for example, gay students or African American students, the instigators would undoubtedly have been quickly removed from the campus community.

The BDS movement on campus is the instigator of the racist attack against Alpha Epsilon Pi and has created a hostile environment for Jews on campus.  This is not a matter of protected First Amendment speech.  The BDS movement, which operates in apparent affiliation with designated terrorist groups, acts in violation of numerous laws, including, but not limited to, the anti-boycott provisions of federal law and anti-terrorism statutes.   I am the author of a legal study on this very issue and urge you to review my paper, “The BDS Movement: That Which We Call A Foreign Boycott, By Any Other Name, is Still Illegal”, which is available at the Social Science Research Network website at the following link:  http://papers.ssrn.com/abstract=2531130.  This paper demonstrates the true nature of BDS and provides a detailed explanation of the numerous federal laws that are violated by BDS activity.

Those who promote BDS on your campus do not benefit from the protections of the First Amendment.  You have an obligation, as stewards of the campus community and its Jewish members, to ensure that those who foment hate are not allowed a platform on your campus.  As we recently saw in Europe, the hate that is spread by BDS is simply a prelude to extremist violence.  Inaction in the face of this threat is tacit endorsement of their agenda and aims.

It is time to right a historic wrong at U.C. Davis and eliminate Antisemitism operating under the guise of civil rights advocacy. 

  

This isn't my first rodeo...

Over the years, I've had a few blogs and they've all ended up being a bit too much of a venue for venting.  Perhaps it's age, perhaps it's changing interests, perhaps it's Fortuna spinning me in another direction.*  Whatever it is, I feel the desire to have a new blog.

This blog will, hopefully, be an outlet for my thoughts on politics, law and society.  I already do quite a bit of scholarly research and writing on these topics (see the link to my papers that are available on the SSRN website) and have even gone so far as to become involved in a Supreme Court case as Amicus Curiea and likely will do so again in the near future.  I've also had some of my papers published in law journals, so this blog is intended to be a place to write about topics that don't rise to the level of a scholarly paper or legal brief.

Dry stuff to some, for sure, but if you're interested in hearing a conservative voice on a variety of topics, this is a good place to visit.

Please note, however, that what I say on this blog has nothing to do with my commercial activities as a lawyer.  I serve my clients, zealously, in that capacity.  When I write on this blog, it is as a private legal scholar with no connections whatsoever to my commercial legal practice or the clients I serve in that practice.

*I've found that quotes from "A Confederacy of Dunces" are always appropriate.