The marketplace of ideas

We are living in a deeply hypocritical time when far too many people say one thing and do the opposite. Our finest colleges and universities pride themselves on being centers of learning dedicated to academic freedom and the unfettered exchange of controversial and unorthodox ideas; that is until those lofty ideals are tested in the rough and tumble of real life and then these easy platitudes give way to intolerance and censorship.

Take the example of Fordham University. In November, 2015 several undergraduate students applied for recognition of Students for Justice in Palestine at Fordham University (SJP) as a registered student club. They described the group's mission "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 indigenous Palestinian people." It also stated that "SJP is organized around the principles of the call by Palestinian civil society for Boycott, Divestment and Sanctions of Israel."

In November 2016, the United Student Government Executive Committee and Board approved SJP as a campus club. In a written determination, the student government expressed faith that the SJP and its members "will positively contribute to the Fordham community in such a way that is sensitive to all students on campus." The student government "is dedicated to the safety of all students and has faith that Students for Justice in Palestine can function on campus respectfully." Furthermore, SJP "fulfills a need for open discussion and demonstrates that Fordham is a place that exemplifies diversity of thought," and their presence "will help to create a space for academic discussion and promote intellectual rigor on campus." Finally, it stated that it did not believe the presence of SJP "will take away from efforts to promote a safe environment on our campus."

If the story ended there it would be an admirable example of a university living up to its highest ideals. Unfortunately, the students at Fordham were far more enlightened than the administration. On Dec. 22, 2016, Dean Eldredge overturned the decision of the student government. Paying lip service to the fact that students are encouraged "to promote diverse political points of view" and to engage in "conversation and debate on all topics," Eldredge hypocritically declared that "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." He invented a factor that nowhere appears in Fordham's rules regarding the approval of student clubs. He stated that there is perhaps "no more complex topic than the Israeli-Palestinian conflict" which often leads to "polarization" rather than dialogue. He claimed that SJP's proposed constitution "points toward that polarization" and the call for BDS "presents a barrier to open dialogue and mutual learning and understanding."

In April 2017, represented by the Center for Constitutional Rights, the students filed a lawsuit in New York state court seeking to reinstate the decision of the student government approving SJP as a student club. After almost two-and-a-half years of litigation, Judge Nancy M. Brannon issued a detailed 21-page decision granting the students' petition. Awad et al. v. Fordham University, No. 153826/2017 (Aug. 6, 2019). She readily found that the students' petition "more than satisfies that standard, as it clearly alleges that Fordham procedurally violated is own rules concerning the recognition of student clubs by permitting a dean to overrule the vote of the student government, 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."

Procedurally, Judge Brannon held that Fordham had seemingly imposed an additional tier of review, by a dean, of an approval already granted by the student government. Moreover, even if the dean had discretion to evaluate whether a proposed club will promote Fordham's mission, such discretion "is neither unlimited nor unfettered." She held that: "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 by 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."

Judge Brannon cited a landmark 1967 Supreme Court decision on the subject of academic freedom, which held that the "classroom is peculiarly the 'marketplace of ideas,'" and the "Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas, [rather] than through any kind of authoritarian selection." Keyishian v. Board of Regents, 385 U.S. 589 (1967).

Contrary to Fordham's contention, the judge found that its status as a private university -- not expressly subject to First Amendment limitations on its right to restrict controversial or unpopular opinions -- did not mandate the dismissal of the students' lawsuit. "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 positions that might be controversial or unpopular with a segment of the university community." Consequently, the court held that "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."

Judge Brannon rejected Eldredge's argument that SJP should not be approved because it "singled out one particular country for criticism and boycott," since that was not an established ground for denying recognition to a student club. After all by that logic, the judge pointed out, 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."

The judge concluded that since the dean's "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," the determination was "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."

Accordingly, Judge Brannon annulled Eldredge's decision and ordered Fordham to recognize SJP as a university-sanctioned club. It was a defeat for hypocrisy and a win not only for the students who had so tenaciously sought recognition of SJP but also for the student government, which demonstrated it was far more faithful than the administration to Fordham's own mission to guarantee "the freedom of inquiry required by rigorous thinking and the quest for truth" and "to foster in all its students life-long habits of careful observation, critical thinking, creativity, moral reflection and articulate expression." Sadly, it took a three-and-a-half year struggle to force Fordham to live up to its own promise "to prepare citizens for an increasingly multicultural and multinational society" and "to develop in its students an understanding of and reverence for cultures and ways of life other than their own." 