In a major victory for the Palestine solidarity movement, a judge in New York annulled Fordham University’s decision to deny club status to Students for Justice in Palestine (SJP) in a decision released last Monday, ordering the Jesuit school to formally recognize SJP as an official group on campus after a four-year battle.
As the first major legal victory for the free speech of Palestine activists on college campuses, the ruling strongly discourages private institutions—which by nature have greater latitude than public institutions to stifle activism—from suppressing speech simply because that speech criticizes Israel. Given the climate of rampant backlash against pro-Palestine politics, the ruling affirms activists’ all-too-often-violated right to criticize Israel and advocate for the basic rights of a dispossessed people.
“Justice Bannon’s principled decision reasserts the judiciary’s role to ensure that voices of marginalized communities will be heard,” said the petitioners’ legal co-counsel, Alan Levine. “Nothing could be more important at this moment.”
In fall 2015, we—that is, Fordham SJP’s founding members, of which I was one before leaving the group in 2017—submitted application materials to form a chapter of SJP, among the 200 in the United States advocating on college campuses for the basic rights of Palestinians. As citizens of a country that financially, diplomatically, and militarily enables Israel’s settler colonialism and apartheid, we felt we had a unique responsibility to act in solidarity with Palestinians. “There was no other area where people could discuss this conflict on Fordham’s campus,” Ahmad Awad, Fordham SJP’s co-founder and then-president, said in an appearance on Democracy Now!
After 364 days of delays and questions from the administration about our intentions, Fordham’s student government finally voted on our application in November 2016. Despite an attempt by a few professors and Fordham’s Jewish Student Organization to sway the vote against us, the student government approved SJP for club status. “This chapter of Students for Justice in Palestine at Fordham fulfills a need for open discussion and demonstrates that Fordham is a place that exemplifies diversity of thought,” its statement read. “[SJP’s] presence will help to create a space for academic discussion and promote intellectual rigor on campus. We do not believe that the presence of Students for Justice in Palestine will take away from efforts to promote a safe environment on our campus.”
But on the afternoon of December 22, the last day of final exams before winter break, Dean of Students Keith Eldredge e-mailed the group to say that he was exercising his never-before-used veto power to overrule the student government’s vote and deny the organization club status, writing, “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 added that our unwavering support for boycott, divestment, and sanctions (BDS)—a nonviolent movement initiated in 2005 by Palestinian civil society to put economic pressure on the state of Israel to restore basic rights to Palestinians—“presents a barrier to open dialogue and mutual learning and understanding” and fosters “polarization rather than dialogue.”
Fordham’s decision tracks with a nationwide phenomenon some people call the “Palestine exception to free speech,” what advocates describe as a disproportionate effort across American institutions to punish advocacy for Palestinian rights.
After months of enormous public pressure failed to change the school’s decision, we were left with no choice but to file a lawsuit with the invaluable help of Palestine Legal and the Center for Constitutional Rights. “This experience has underscored how difficult it is to talk about Palestinian freedom in America without facing serious suppression,” Awad, SJP’s president, wrote in the New York Daily News. “I was devastated to discover that Fordham would prohibit SJP—and, even worse, do so not because of any bad behavior, but simply because of what it represents on paper.”
Because Fordham is a private university, its students aren’t legally protected by the First Amendment’s free speech guarantees. But students at private universities are protected against “arbitrary and capricious” behavior.
And last week, after more than two years in court, Justice Nancy Bannon ruled that Fordham’s refusal to grant SJP club status met the standard for an arbitrary and capricious action in failing to provide a rational basis for its decision, considering inappropriate factors when making its decision, and violating its own policies on free speech and the club application procedure. Fordham’s arguments were resoundingly rejected. “It must be concluded that [Dean Eldredge’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,” Justice Bannon wrote in a momentous ruling.
His only articulated concern was that SJP singled out one particular country for criticism and boycott. Again, this is not an established ground for denying recognition to a student club. To the extent that Dean Eldredge claims authority to reject any club that criticizes a particular country, that same rule could be applied to students protesting or criticizing China’s occupation and annexation of Tibet, Russia’s occupation of Crimea, or Iraq’s one-time occupation of Kuwait.
Private institutions have made a habit out of simultaneously proclaiming to uphold free speech while cracking down on Palestine activism. When Fordham College Republicans invited the right-wing, racist political strategist Roger Stone to campus nearly a year after the SJP ban, Fordham president Joseph McShane, S.J., denounced Stone’s “demeaning” opinions, but said he would nevertheless allow Stone’s talk to proceed. The club has “every right to invite Mr. Stone, and he has every right to share his opinions,” he wrote.
But this ruling forces private institutions to choose one or the other. If they choose both to defend free speech and repress Palestine activism, as Fordham did, activists can win by claiming their institution is acting arbitrarily and capriciously. Because it’s unlikely that a large institution would explicitly renounce free speech—especially in light of the vigorous opposition to Fordham’s decision from free speech organizations—Justice Bannon’s ruling both protects free speech principles and gives Palestine activism stronger footing.
Ironically, Fordham’s initial decision to ban SJP ultimately handed a major victory to the Palestine solidarity movement. The stark injustice of the ban sparked a sustained opposition that broadened the movement’s support among people who may never have been interested in Palestine in the first place. Fordham’s intransigence hardened SJP’s resolve to fight back, forcing the group to pursue a legal strategy whose result now provides a bulwark against the discretionary power of private institutions. As such, the victory SJP won in court for the broader movement is far more significant than had Fordham simply defied pro-Israel pressure and approved SJP four years ago.
Just before the fourth and final original petitioner graduated this past May—leaving the future of the lawsuit in doubt—a rising junior at Fordham, Veer Shetty, stepped up to join the case. As the inaugural leader of the soon-to-be university-sanctioned iteration of Fordham SJP, Shetty knows that the real work begins now. “We want to build on this amazing momentum that was created in part by the tireless efforts of our lawyers and supporters,” Shetty told The Nation. “We as a new club will be equally tireless in our efforts to fight for the rights and dignity of the Palestinian people.”