Megan Ann Forbes, Esq.
Associate Director, Investigations
Office of Institutional Equity
Division of Student Anti-Discrimination and Discriminatory Harassment
Dear Ms. Forbes:
I am writing in advance of the upcoming mandated[1] “interview” of my client Layla Saliba, by representatives of the Office of Institutional Equity (“OIE”). Now in her final weeks of her final semester of graduate school,[2] Layla will participate, but uncomfortably so, in what many in and out of the University community consider to be little more than an institutional political parse to please various funders and politicians through the control of the market place of ideas by dictating what is and what is not correct political speech.[3] In advance of this examination I take this opportunity to submit this mini brief of sorts in opposition to both the process and its guiding “Policies and Procedures” as being in clear violation of Layla’s rights to speech, association and due process[4] under the Constitutions of New York and the United States.
By way of introduction, I am the great grandson of an anti-Zionist woman born in Russia/Lithuania/Latvia some 150 years ago who felt the sting of targeted state repression and pogroms based on faith, ethnicity and beliefs. Her son, my grandfather, also an anti-Zionist Jew, was a Narodnik who fought the Czar and who along with his anti-Zionist brother was placed on a ship by their mother to escape the death warrants of the Czar and who found safety in Africa. My father, an anti-Zionist Jew, who spoke fluent Yiddish and German was a wounded hero of World War II who helped to liberate concentration camps. Although the precise number is not known, most of my European ancestry was disappeared during the Holocaust. I am an anti-Zionist Jew[5] who has fought on behalf of Palestinian justice for some 50 years and will do so to my final breath. This introduction is proffered not to draw praise or even understanding, but simply to remind Columbia that opposition to Zionism and the anti-Semitic policies of Israel [6] is neither new nor unwarranted.
Today in the worldwide Jewish community, there are hundreds of thousands, perhaps millions, of Jews who are anti-Zionist and who oppose the on-going genocidal policies of the “nation-state” of Israel. That millions across the globe, including Jews, have taken to the streets of righteous protest against the most recent strain of Israeli genocide is neither dangerous nor criminal. To the contrary, over the last 18 months or so with great pride in our young we have seen university students and faculty play a much-needed role in that protest.[7]
From the standpoint of the age-old marketplace of ideas, that on-campus protest, be it by published word or the shout of march may, at times, make others, including Jews or Zionists, uncomfortable is of no real-world, real-time academic consequence. At its core, peaceful protest reflects a necessary benchmark of academic growth and empowerment of a university’s diverse student body and faculty as to the fundamental rights of free speech, assembly and protest.
In the United States we instill upon our gender and identity free sons and daughters of all races, backgrounds, faiths (or not) and aspiration, the cornerstone notions of freedom and justice and urge them in the name of these ideals to pursue and to protect our historical journey and fundamental narrative of unfettered speech and active protest. In the best of worlds, we summon them not to sit in silence as mere passing witness to abhorrent activity, be at home or abroad …. as silence is but a verb’s throw away from complicity. It is an experience we Jews and others learned in the run-up to the Reich and the genocide of World War II where, tragically, silence among the many empowered the evil of the few. But yet, today, when that constitutionally protected activity rubs up against majoritarian values or the unbounded bribe of money, there is often a price imposed upon student dissidents by those who remain dependent upon the “largesse” of the powerful in their thirst to silence dissent.
That Columbia targets Layla Saliba for but the words of her pen and the echo of her protest speaks volumes about its palpable dread not of actual threats or intended and imminent violence,[8] but mere speech; even speech that may at times prove unpopular or painful to others. It’s called speech.[9] That Columbia has apparently elected to break bread with the meaningless metaphor of candles and incense purchased through the billons gifted it by the powerful and elite, is an appalling choice. That it seeks to punish those who refuse to go silently unto the night for little more than dissent says it has lost its academic way and mission. That it deigns to dictate “good” speech from the “bad” is an unambiguous censorship tramp antithetical to the heart and long march of American history. And a damming indictment of the absence of what should otherwise be an enlightened call to a diverse university experience built of divergent even, at times, disquieting words.[10]
Layla Saliba is a wonderful, principled young Palestinian-American student who has lost more than a dozen family members to Israeli genocide in Gaza. That she refuses to join those persons and institutions who choose to sit on the sidelines as mere bystanders to the war crimes of our time is indeed a mitzva with roots tracing back the millennium; one that Columbia should respect and applaud, not seek to silence or to punish.
With this by way of introduction we submit the following for consideration by the OIE on the eve of Layla’s appearance before it in what I and countless others consider to be very much a “star chamber”[11] like proceeding; one intended to impermissibly safeguard the financial interests of Columbia at the expense of its students’ constitutional rights by abetting the government in its evident aim to silence and punish disfavored speech for its own political ends. See, NRA of Am. v. Vullo, 602 U.S. 175 (2024).[12]
Shame, shame, Shandra.
Once the bastion of independent intellectual inquiry Columbia cowers at the feet of the North Country Harvard neo-con in milkmaid apron, pretending to care about ‘anti-Semitism’[13] and bends the knee to a tyrannical charlatan who could not get admitted to the University with a loaded pistol and a blank check. And for what? A few gold coins and a non-aggression promise from a man who breaks his word like a warthog breaks wind-- often and loudly. With apologies to Mr. Franklin, one who trades independence for riches more often than not ends up penniless in chains.
Columbia has decided to live on its knees rather than die on its feet and what did it pay for that privilege? The price to have the jackboot lifted just a bit from the University’s throat is the freshly minted “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students” (the Policy).[14]
Kafkaesque in scope and Orwellian in implementation the new Policy stands as a grim harbinger of a world where the thought police are real and saying prohibited words can have devastating consequences. Reduced to its essence, the policy subjects Columbia students to discipline if they say or write certain words or combinations of words. Certain speech is prohibited, not based on where or when it is uttered, but based on the ideas sought to be communicated. The words themselves are bad. And that is not the worst of it. The Policy does not specify which words are prohibited. That would smack too much of an attempt at authoritarian control. No, rather than prohibit certain words outright, the Policy imposes an elaborate matrix worthy of Franz himself that will be applied on a case-by-case basis. The message to students is clear: do your letters and memorize your math tables and stay far away from the line separating intellectual inquiry and debate from prohibited speech.
The Orwellian twist to this madness is, of course, that the Policy is being imposed in the name of academic freedom.[15] The temerity of the Policy’s authors to disguise their lupine authoritarianism in the ovine cloak of academic freedom brings to mind another sad chapter in Columbia’s history. In 1933, months after the opening of Dachau, the beginning of Nazi book burnings, and the granting of dictatorial powers to Adolf Hitler, President of Columbia, Nicholas Murray Butler, invited German Ambassador to the United States, Hans Luther, to speak at the University. Butler rebuked calls from the student body to cancel the speech by claiming that to do so would be contrary to academic freedom. President Butler’s response deserves to be quoted in full, not only because it highlights yet another example of Columbia doing the absolute wrong thing in the name of virtue, but it is a classic example of the unmitigated hubris and arrogance of an Ivy League President:
Such an eloquent defense of a well-mannered Nazi. Oh, how far we have come. In 1933, the President of the University was confident that Columbia’s company of scholars could handle the ravings of a Nazi apologist. But, 92 years later, Columbia students cannot tolerate a ‘Free Palestine’ chant. Lest we be accused of historical revisionism (after all, 1933 was early days in the Third Reich); let us jump to 1936 when Hitler’s ambitions were now well known.
In June 1936, President Butler expelled Robert Burke, President-elect of his class, for his participation in a protest against Columbia’s involvement in celebrating the 550th anniversary of Heidelberg University. Burke and other students had been critical of the ceremony because of its close involvement with the Nazi regime and the attendance of Nazi propaganda minister Joseph Goebbels.[17]
Quashing debate in the name of freedom is worthy of Orwell who showed us that those who assign meaning, those who control the debate, write history. There is no more glaring example of Orwell’s teaching than the recasting of the word ‘anti-Semitism’. Anti-Semitic utterances are prima facie Prohibited conduct. So, when the word anti-Semitic gets redefined to include not just the denigration of Jews but also the criticism of the nation state of Israel anyone daring to engage in such debate must now contend with the Policy and its possible disciplinary consequences. Columbia is now in the business of prohibiting its students from questioning and criticizing the policies and actions of a country. Every other country in the world, including this one, is fair game, but Israel is off limits.
Could a Columbia student write an op-ed critical of the investments made by the Holy See without being branded anti-Catholic, of course, Indeed, could that same op-ed argue that Vatican City should not exist as a separate country without fear of discipline from the Columbian overlords? But to question Israel’s creation or its continued existence in its present form becomes a punishable offense.
Anti-Zionism is not anti-Semitism no matter what the Columbia Task Force says. Can anti-Semitism be disguised as criticism of Israel? Of course it can. Just as Islamophobia can lurk within the criticism of Hamas. Thirty-six Jewish professors from Columbia challenged the Task Force’s August, 2024 Report on this and other grounds. Instead of engaging in an honest public debate, the authors of the Report accused the Columbia 36 of being anti-Semitic.[18] The University explicitly accepted this broad definition of anti-Semitism in its capitulation to the Trump administration.[19]
Those surprised that Columbia capitulated so readily to the threats and bullying of the federal government misunderstand the relationship between the University and the government. For decades Columbia has been part of the broad federal family. Columbia was not crushed by some outside apparatus; it is part of the apparatus. Columbia did not surrender its independence to some jackbooted thugs or faceless bureaucrats. Columbia did not cave in to the government; Columbia is the government. A brief historical excursion proves the point.
Columbia University never misses the chance to be on the wrong side of history. On October 1,1917 it fired two faculty members for alleged ‘disloyalty’ regarding U.S. involvement in World War I. Both were vocal opponents of the war. There were, of course, no hearings regarding their views.[20] In the 1950s, while publicly boasting how the University protects its faculty from the intimidations of the House un-American Activities Committee (HUAC), then President Grayson Kirk capitulated to the pressure and terminated a well-regarded 17-year professor who had been labeled a “communist” because she had the temerity to suggest that the United States should not use chemical weapons. The professor was never publicly accused of being a communist by the University. Instead, the President
quietly changed the employment criteria so as to disqualify her. The University managed to serve up a “communist” to HUAC without damaging its progressive, liberal brand.[21]
The pattern repeats itself in the 1960s. While publicly championing civil rights, the University evicted hundreds of mostly African American tenants from their Harlem homes so the school could build “Gym Crow”, a segregated facility with separate entrances for the mostly white college students and the mostly black Harlem residents. When confronted with this design flaw, instead of fixing it, the University obfuscated and temporized and outright lied creating such resentment in the community that the project was halted.[22]
Again, in the 1960s, when its policies supporting the Vietnam War were challenged, the University deliberately misinformed its faculty, students and the public about its long-term membership in the Institute for Defense Analyses (IDA). This, of course, led to the 1968 protest and the months-long crisis thereafter.[23]
Student demonstrations on Columbia’s campus date back to the College’s earliest years, but escalated during the late 1960s. In February 1967, eighteen members of SDS staged Columbia’s first sit-in in Dodge Hall - in protest of CIA recruitment on campus. Still other demonstrations centered around opposition to the University’s unauthorized submission of student class rankings to Selective Service Boards, military recruitment on campus, and University involvement in the Institute for Defense Analyses (IDA).[24]
And, yet again in the 1980s, when its investments propping up the apartheid regime in South Africa were challenged, instead of recognizing the moral imperative and divesting immediately it took weeks of protests to finally yield a reluctant change in policy. And, even then, after publicly announcing a divestiture policy the University dithered and took years to fully divest.[25]
At least since the 1950’s, and likely before, Columbia has been on the federal government’s payroll and in the fold. Columbia receives a substantial and continuous funding stream from the federal government.[26] The federal government dictates important admissions and hiring policies at Columbia.[27] The federal government has directed curriculum changes at Columbia.[28] And, significantly, the federal government can and has threatened Columbia’s very existence by altering its tax status.[29] Columbia is ‘independent’ of the federal government only as a matter of myth and PR. Columbia is on the team.
The essential element of the Policy, its DNA, if you will, is the definition of Prohibited Conduct, Discrimination, and Discriminatory Harassment. These must be clear and sharp and unambiguous, so as to give Columbia students ample notice of what is expected of them. The Policy, as written, falls woefully short of this objective. For example, the definition of Discrimination states:
“Treating individuals less favorably” could range from the petty to the profound. I don’t choose to hang out with you because of your nationality is far different than I won’t sit in the same class with you. Both could be considered treating someone less favorably. But are both covered; are either? Even within the same section, two standards are referenced- one is treat ‘less favorably’, the other is treat ‘differently’. There is overlap between the two, but surely, they are not the same. Which is the standard?
Another example from the Discriminatory Harassment definition: “Subjecting an individual to unwelcome conduct, whether verbal or physical”. How is a speaker to know a comment is unwelcome before it is uttered? A classroom discussion on Israeli policy spills into the hallway after class. This type of continued engagement would normally be applauded at a university, but it also could be ‘unwelcome’ in the hallway even if perfectly appropriate in the classroom.
The Policy under which the University threatens discipline of Layla Saliba seeks to serve two masters and, in the end, serves neither well. In order to appease the likes of Stefanik and Trump the Policy seeks to discipline those who would question and criticize Israel’s relentless assault on Gaza. Yet, true to its historical pathology, in the same document Columbia seeks to maintain the myth that it is a champion of academic freedom. What results is a mass of contradiction that defies interpretation. A glaring example is the Policy’s savings clause: “Nothing in this policy may be construed to abridge academic freedom principles of free speech or the University’s educational mission.” The explanatory footnote however states, “the fact that the Prohibited Conduct includes speech in a public setting or speech that is also motivated by political or religious beliefs does not relieve the University of its obligations to respond if the Prohibited Conduct creates a hostile environment.”[31]
The clause states academic freedom and expression are sacrosanct, i.e. “Nothing in the policy may be construed” yet the explanatory footnote strongly suggests that everything in the Policy can be construed to trump academic inquiry and expression. The Policy is clearly a limitation on academic freedom and expression. As long as Columbia pretends it is not, the Policy will elude understanding and fair application.
The Policy creates a strict dichotomy- either speech thought to be offensive by at least one person on campus is Prohibited Conduct or it is an expression of academic freedom and inquiry. The dichotomy may be strict but the line between a spirited academic debate and an expellable offense is far from clear. Indeed, by its very terms, the Policy states that the line will be determined on a ‘case by case’ basis. Violation of disciplinary rules, like criminal laws, can result in the loss of property, opportunity, and sometimes, liberty. Because of this, Columbia’s disciplinary rules must give students notice of two things: what conduct (in this case, speech) is prohibited and what are the consequences for engaging in
Prohibited Conduct. The Policy neither defines what is prohibited nor does it clearly state the consequences for engaging in Prohibited Conduct. It was not sloppy or lazy drafting-- it was an impossible task from the outset. Prohibiting speech that makes others uncomfortable simply cannot be reconciled with any working notion of academic freedom.
The drafters of the Policy have forgotten or ignored the writings of the great legal thinker molded at Columbia Law School 100 years ago, William O Douglas. Having served 37 years on the Supreme Court, Justice Douglas wrote hundreds of opinions, but the following is especially applicable to this case:
In reading the Policy’s inclusion of ‘denigrating jokes’ as an example of Discriminatory Harassment, one cannot help but recall the now famous anecdote involving Winston Churchill’s exchange with MP Bessie Braddock. When she accused him of being ‘disgustingly drunk’, he replied, “My dear you are ugly and what’s more, you are disgustingly ugly. But tomorrow I shall be sober and you will still be disgustingly ugly.” Were young Winston a Columbia man, would his genius retort have subjected him to discipline under the Policy? One would hope not, but it could have, and that is the point. Vague standards yield uneven results and stifle inquiry and debate. The campus may be quieter and even more harmonious, but the genius will wither.
Layla Sabila did not write the Op Ed in question, but she, like hundreds perhaps thousands of other Columbia students read it. Efforts to punish the author of the communication has a direct impact on those who would receive the communication. By its terms, the Op Ed is not Prohibited Conduct as defined by the Policy because it did not and does not “interfere with or limit the ability of any individual to participate in or benefit from Columbia’s services, activities, or privileges.”[33] Moreover, the speech did not occur in a setting with a captive audience. Anyone who did not want to be subjected to the ideas in the Op Ed simply could have chosen not to read it.[34]
Yet another fatal flaw in the foundational definitions in the Policy is their dependance on the subjective reaction of the audience. The same speech can be lively debate or Prohibited Conduct depending on whether it offends or makes the listener uncomfortable. This type of construct has been rejected by the courts and makes an already muddled set of rules even more unpredictable.
Whether one intends to offend is incapable of objective determination. What offends one person may have no effect on another. Coates v. City of Cincinnati, 402 U.S. 611 at 614 (1971) (finding unconstitutionally vague an ordinance criminalizing conduct “annoying to persons passing by” because “[c]onduct that annoys some people does not annoy others”); Baggett v. Bullitt, 377 U.S. 360, 368 (1964)(invalidating on vagueness and overbreadth grounds an oath requiring teachers to forswear an “undefined variety” of behavior considered “subversive” to the government). Culpability under the Policy hinges on the subjective reactions of others and therefore fails to give the ordinary student notice of what the University permits and what it forbids.
A criminal statute is unconstitutionally vague in violation of due process for either of two reasons: first, if “it fails to give ordinary people fair notice” of what is proscribed; and, second, if it is “so standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). Because of the severity of consequences, Columbia’s Policy must meet or exceed these minimum standards. It does not.
Not long ago, Justice Gorsuch, another Columbia trained jurist, reminded us that “vague laws invite arbitrary power.” Sessions v. Dimaya, 138 S. Ct. 1204, 12 23(Gorsuch, J., concurring). This is especially true where the law or rule seeks to punish expression. The Policy’s vagueness chills protected speech. The Policy deserves exacting scrutiny because it threatens First Amendment freedoms. While the vagueness doctrine is “an outgrowth not of the First Amendment, but of the Due Process Clause,” Kincaid v. Williams, 553 U.S. 246 at 304, (2009) the Supreme Court applies “a more stringent vagueness test,” requiring greater statutory precision, where “the law interferes with the right of free speech or of association.” Hoffman Estates v. The Flipside, Hoffman Estates, 455 U.S. 489 at 499. The reason why the test is stricter in the First Amendment context is “to ensure that ambiguity does not chill protected speech.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2309−10 (2012); Hoffman Estates, 455 U.S. at 499, (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.”).
This country was born of disagreement – vociferous, boisterous, and often violent disagreement with government policy. It is in our national DNA. Our founders, particularly James Madison, understood that America is not a debating society; it is a street fight, and they made ample room in the First Amendment for loud, contentious confrontation between the citizenry and their government. In 1789, it was a bodacious experiment; but more than anything else, it is what sets us apart from the rest of the world. Even a cursory review of our history shows that every major policy advancement came not from polite conversation but from years, sometimes decades, of citizens coercing their government to change course. Civil rights, women’s rights, labor rights were not achieved in the salons of polite society; they were achieved through citizens confronting government policy and forcing change. Power does not yield by polite debate. Madison understood this; our Constitution reflects this; Columbia would do well to keep it mind as it molds leaders for tomorrow.
Very truly yours
__________________
Stanely L. Cohen, Esq.
[1] Although, by little more than academic sleight of hand, the OIE has on several occasions told Ms. Saliba that she need not participate in this investigation, given that it will nevertheless proceed in her absence and determine whether she has violated any of the University protocols which deign to dictate the acceptable parameters of thought, peaceful assembly and speech among its students and faculty, on and off campus, this option is little more than a choice without choosing.
[2] A paradox to say the least. While Layla is about to graduate from the Columbia School of Social Work, the first such school in the United States, and which was established to train students “to actively build a community with an unwavering commitment to social justice and human rights,” and in doing so to hone the skill-set of its graduates to advocate for those in need, even against powerful institutional inequality, that on the eve of graduation, she finds herself to be the target of an investigation into little more than the propriety of her voice against injustice.
[3] While OIE believes that its “Anti-Discrimination and Discriminatory Harassment Polices and Procedures for Students” represents an impartial primer for notice to Columbia students as to the content neutral boundaries of campus discourse, as noted infra equal application of unconstitutional rules and regulations does not make them any the less onerous.
[4] Though New York law generally holds that the relationship between a private university and its students "is essentially a private one such that, absent some showing of State involvement, its disciplinary proceedings do not implicate the full panoply of due process guarantees"[Rensselaer Soc'y of Eng'rs v. Rensselaer Polytechnic Insts., 260 A.D.2d 992, 994 (3rd Dept. 1999)], nevertheless, the requisite clear divide between government and university is markedly absent here where on matters of speech, association and protest Columbia has long been wed to and advanced official State policy. Having thus met her “threshold showing of State involvement” [see, Cavanagh v. Cathedral Preparatory Seminary, 284 A.D.2d 360 (2d Dept. 2001)] Layla Saliba is entitled to her ‘full panoply of due process’ guarantees in advance of and at her upcoming disciplinary proceedings. See, discussion, infra.
[5] Parenthetically it should be noted that in Judaism as a Koehn I am a direct descendent of Aaron and Moses. See, Shtetl Haredi Free Press, ‘Satmar Hasidic Jews are certainly not antisemitic’: Nadler invokes Haredi anti-Zionism on floor of Congress (Dec 5, 2023) (“U.S. Representatives Jerry Nadler, Jamie Raskin, and Dan Goldman — all Jewish Democrats … [argued] against the pro-Israel resolution which … states that all anti-Zionism is antisemitism. That is either intellectually disingenuous or just factually wrong, Nadler said in remarks given on the House floor. I can assure you that Satmar Hasidic Jews are certainly not antisemitic.”
[6] It simply beggars’ imagination that while a community of largely immigrant Eskenazi Jews in and out of Israel is deemed to be Semitic, hundreds of millions of Arabs including the historically distinct body of Palestinians who have never left their birthland are somehow not.
[7] That some on both “sides “of any given protest may, at times, cross the line from fully protected speech to words brigaded in action cannot in itself constitutionally justify the blanket suppression or the sculpted carve of written or spoken words due to the cheap, convenient talisman of “discomfort.”
To be sure, speech, even the unpopular and that of discomfort has long been the linchpin of freedom. In the 17th Century, Baruch Spinoza, excommunicated from the Jewish community for his views wrote “Everyone is by absolute natural right the master of his own thoughts, and thus utter failure will attend any attempt in a commonwealth to force men to speak only as prescribed by the sovereign despite their different and opposing opinions.” Ludwig Josef Johann Wittgenstein, a Jew at birth, and professor at Cambridge University penned “The limits of my language means the limits of my world.” Jacques Derrida, famed French Algerian philosopher wrote” The first problem of the media is posed by what does not get translated, or even published in the dominant political languages.” This past century, legendary philosopher and writer Simone Beauvoir penned “I am too intelligent, too demanding, and too resourceful for anyone to be able to take charge of me entirely. No one knows me or loves me completely. I have only myself."
[8] See, Brandenburg v. Ohio, 395 U.S. 444 (1969).
[9] That the First Amendment was designed by the framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs is beyond dispute. See, Mills v. Alabama, 384 U.S. 214, 218-219 (1966). It embraces the freedom to distribute information and materials to all citizens, a freedom "clearly vital to the preservation of a free society." Martin v, Struthers, 319 U.S. 141, 146-147 (1943).
[10] Thus, why does the call to arms by Patrick Henry and John Paul Jones during the U.S. revolutionary war of "Give me liberty or give me death!" and “I have not yet begun to fight!” occupy honored patriotic pedestals in the annals of American history, but yet the call to intifada chanted by millions across the world is, in itself, deemed by partisan denialists to be but an incitement to “anti-Semitic” lawlessness. And how is it that “The Battle Cry of Freedom” and “Dixie” were revered rousing anthems to those of the North and South in the US Civil war, but yet saying or writing the phrase “From the River to the Sea … Palestine will be Free” can be twisted to become words of hate and used as a palpable ploy to suspend or to expel a principled student from their studies? What next … “To the barricades”?
[11] As noted in our submission to the OIE of April 9,2024 the “star chamber” was a controversial 16th century judicial process of the English Courts where accused were held to task by arbitrary and secretive proceedings where typically they had no advance notice of what was specifically alleged or by whom and no meaningful opportunity to prepare for or to produce exculpatory evidence on their behalf. See, generally United States v. Ju Toy, 198 U.S. 253, 268 (1905) (Brewer, J., dissenting) (asking where Chinese immigrants landing in California who had to appear and give affirmative testimony in Washington D.C. to establish lawful admission … “if this be not a star-chamber proceeding of the most stringent sort, what more is necessary to make it one?”).
To be sure, the notion students can be compelled to appear before an "investigative" chamber in an evidentiary vacuum lest their fate and future be decided without advance notice of precisely what it is that they allegedly did, and when and where, and denied an opportunity to see beforehand the “evidence” of the allegations, and with no chance to cross examine or to introduce exculpatory evidence themselves, surely presents a process which stands as a very dark star chamber-like proceeding.
[12] On behalf of a unanimous Court, Justice Sotomayor wrote “Six decades ago, this Court held that a government entity’s threat of invoking legal sanctions and other means of coercion against a third party to achieve the suppression of disfavored speech violates the First Amendment. Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Id. (internal citations and quotations omitted). Although directed at the State itself, an agreement by a “private actor” to further these impermissible ends in response to a government edict, or in exchange for a government benefit is no less pernicious. See, also, Khalil v. Trs. of Columbia Univ. in the City of New York, 2025 U.S. Dist. LEXIS 65372 [*6](S.D.N.Y. 2025)(leave granted to amend complaint as “this case raises serious questions as to whether two branches of government violated the First Amendment by leveraging the threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression of disfavored speech.”)(internal citations and quotations omitted).
[13] See.
[14] See, Columbia University, “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students, Sept 23, 2024.
[15] In announcing what could only be described as the University’s capitulation to the Trump administration, Columbia’s acting President stated the following: “For Columbia and great universities like it, nothing could be more sacrosanct than academic freedom and free expression. These core tenets are the necessary preconditions for the discovery and discourse that enable us to push forward the frontiers of knowledge and deepen our capacity for understanding, and they have guided and defined our university for 270 years. Through centuries of lively debate, disagreement, and productive discourse, our commitment to free inquiry remains the cornerstone of our community and an indispensable foundation for our academic mission.”
[16] “Dr. Butler Refuses to Bar Nazi Envoy”, New York Times, Nov 20, 1933, p.6.
[17] See.
[18] See.
[19] See.
[20] See.
[21] “Although Columbia University presidents and trustees maintained during the cold war that the university protected its professors from McCarthyism, the case of Gene Weltfish proves otherwise. In 1952, Weltfish was called in front of the House un-American Activities Committee, and a few months later the university dismissed her under a shady rule recently created by University President Grayson Kirk and the trustees. Although she did have ties to communist groups, Weltfish denied any personal sympathies with communist causes and distinguished herself in the Anthropology department with her academic work. Her case shows how, when faced with a professor who spoke publicly about views that aligned with communism, the University gave into the same sort of McCarthyist tendencies it publicly criticized. Worst still, President Kirk did so under the guise of “academic freedom,” stating that Weltfish’s dismissal protected academic freedom…. Weltfish serves as a case study of hushed academic censorship, cloaked in the guise of budgetary and productivity rules. Her dismissal raises questions of the meaning of academic freedom during the McCarthy era, specifically at Columbia, which purported to protect freedom in academic pursuits.” Gilana Keller, Behind the Lion Curtain: McCarthyism at Columbia in the 1950s, The Current, Fall 2012.
[22] See.
[23] In 1959, Columbia joined the five-year old Institute for Defense Analyses (IDA), and University president Grayson Kirk became Columbia’s representative on the IDA board. IDA served as a forum where leading research universities and government agencies that funded military y research could discuss issues of mutual interest. Although IDA did not issue contracts for military research and development, participating members were given de facto priority. Columbia acknowledged its membership in IDA when questioned by SDS in the mid-1960s, but proved less forthcoming about the extent of defense-related secret research conducted at the University.
[24] See
[25] On April 4, 1985, seven students at Columbia University, members of the Coalition for a Free South Africa (CFSA), chained closed the doors to Columbia’s administrative building, Hamilton Hall, and sat on the steps, blockading the entrance. They were there to protest the University’s investments in corporations that operated in Apartheid South Africa. Soon after, a march coordinated by other members of CFSA passed by Hamilton Hall. When the marchers saw the small blockade on the steps, they rushed to join in. Within two hours, the seven initial protesters had seen their number grow to more than 250. The first major successful protest in favor of college divestiture had begun.
[26] See.
[27] See.
[28] See.
[29] See.
[30] Columbia University, “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students, Sept 23, 2024, p.7.
[31] Id. at p.8.
[32] See, also, An Almanac of Liberty New York: Doubleday, Douglas, William O., p. 363 (1954)(“The most important aspect of freedom of speech is freedom to learn. All education is a continuous dialogue- questions and answer that pursue every problem to the horizon. That is the essence of academic freedom and scientific inquiry”.).
[33] Columbia University, “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students, Sept 23, 2024, p.7.
[34] Id. at p.6.
Associate Director, Investigations
Office of Institutional Equity
Division of Student Anti-Discrimination and Discriminatory Harassment
Dear Ms. Forbes:
I am writing in advance of the upcoming mandated[1] “interview” of my client Layla Saliba, by representatives of the Office of Institutional Equity (“OIE”). Now in her final weeks of her final semester of graduate school,[2] Layla will participate, but uncomfortably so, in what many in and out of the University community consider to be little more than an institutional political parse to please various funders and politicians through the control of the market place of ideas by dictating what is and what is not correct political speech.[3] In advance of this examination I take this opportunity to submit this mini brief of sorts in opposition to both the process and its guiding “Policies and Procedures” as being in clear violation of Layla’s rights to speech, association and due process[4] under the Constitutions of New York and the United States.
By way of introduction, I am the great grandson of an anti-Zionist woman born in Russia/Lithuania/Latvia some 150 years ago who felt the sting of targeted state repression and pogroms based on faith, ethnicity and beliefs. Her son, my grandfather, also an anti-Zionist Jew, was a Narodnik who fought the Czar and who along with his anti-Zionist brother was placed on a ship by their mother to escape the death warrants of the Czar and who found safety in Africa. My father, an anti-Zionist Jew, who spoke fluent Yiddish and German was a wounded hero of World War II who helped to liberate concentration camps. Although the precise number is not known, most of my European ancestry was disappeared during the Holocaust. I am an anti-Zionist Jew[5] who has fought on behalf of Palestinian justice for some 50 years and will do so to my final breath. This introduction is proffered not to draw praise or even understanding, but simply to remind Columbia that opposition to Zionism and the anti-Semitic policies of Israel [6] is neither new nor unwarranted.
Today in the worldwide Jewish community, there are hundreds of thousands, perhaps millions, of Jews who are anti-Zionist and who oppose the on-going genocidal policies of the “nation-state” of Israel. That millions across the globe, including Jews, have taken to the streets of righteous protest against the most recent strain of Israeli genocide is neither dangerous nor criminal. To the contrary, over the last 18 months or so with great pride in our young we have seen university students and faculty play a much-needed role in that protest.[7]
From the standpoint of the age-old marketplace of ideas, that on-campus protest, be it by published word or the shout of march may, at times, make others, including Jews or Zionists, uncomfortable is of no real-world, real-time academic consequence. At its core, peaceful protest reflects a necessary benchmark of academic growth and empowerment of a university’s diverse student body and faculty as to the fundamental rights of free speech, assembly and protest.
In the United States we instill upon our gender and identity free sons and daughters of all races, backgrounds, faiths (or not) and aspiration, the cornerstone notions of freedom and justice and urge them in the name of these ideals to pursue and to protect our historical journey and fundamental narrative of unfettered speech and active protest. In the best of worlds, we summon them not to sit in silence as mere passing witness to abhorrent activity, be at home or abroad …. as silence is but a verb’s throw away from complicity. It is an experience we Jews and others learned in the run-up to the Reich and the genocide of World War II where, tragically, silence among the many empowered the evil of the few. But yet, today, when that constitutionally protected activity rubs up against majoritarian values or the unbounded bribe of money, there is often a price imposed upon student dissidents by those who remain dependent upon the “largesse” of the powerful in their thirst to silence dissent.
That Columbia targets Layla Saliba for but the words of her pen and the echo of her protest speaks volumes about its palpable dread not of actual threats or intended and imminent violence,[8] but mere speech; even speech that may at times prove unpopular or painful to others. It’s called speech.[9] That Columbia has apparently elected to break bread with the meaningless metaphor of candles and incense purchased through the billons gifted it by the powerful and elite, is an appalling choice. That it seeks to punish those who refuse to go silently unto the night for little more than dissent says it has lost its academic way and mission. That it deigns to dictate “good” speech from the “bad” is an unambiguous censorship tramp antithetical to the heart and long march of American history. And a damming indictment of the absence of what should otherwise be an enlightened call to a diverse university experience built of divergent even, at times, disquieting words.[10]
Layla Saliba is a wonderful, principled young Palestinian-American student who has lost more than a dozen family members to Israeli genocide in Gaza. That she refuses to join those persons and institutions who choose to sit on the sidelines as mere bystanders to the war crimes of our time is indeed a mitzva with roots tracing back the millennium; one that Columbia should respect and applaud, not seek to silence or to punish.
With this by way of introduction we submit the following for consideration by the OIE on the eve of Layla’s appearance before it in what I and countless others consider to be very much a “star chamber”[11] like proceeding; one intended to impermissibly safeguard the financial interests of Columbia at the expense of its students’ constitutional rights by abetting the government in its evident aim to silence and punish disfavored speech for its own political ends. See, NRA of Am. v. Vullo, 602 U.S. 175 (2024).[12]
Shame, shame, Shandra.
Once the bastion of independent intellectual inquiry Columbia cowers at the feet of the North Country Harvard neo-con in milkmaid apron, pretending to care about ‘anti-Semitism’[13] and bends the knee to a tyrannical charlatan who could not get admitted to the University with a loaded pistol and a blank check. And for what? A few gold coins and a non-aggression promise from a man who breaks his word like a warthog breaks wind-- often and loudly. With apologies to Mr. Franklin, one who trades independence for riches more often than not ends up penniless in chains.
Columbia has decided to live on its knees rather than die on its feet and what did it pay for that privilege? The price to have the jackboot lifted just a bit from the University’s throat is the freshly minted “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students” (the Policy).[14]
Kafkaesque in scope and Orwellian in implementation the new Policy stands as a grim harbinger of a world where the thought police are real and saying prohibited words can have devastating consequences. Reduced to its essence, the policy subjects Columbia students to discipline if they say or write certain words or combinations of words. Certain speech is prohibited, not based on where or when it is uttered, but based on the ideas sought to be communicated. The words themselves are bad. And that is not the worst of it. The Policy does not specify which words are prohibited. That would smack too much of an attempt at authoritarian control. No, rather than prohibit certain words outright, the Policy imposes an elaborate matrix worthy of Franz himself that will be applied on a case-by-case basis. The message to students is clear: do your letters and memorize your math tables and stay far away from the line separating intellectual inquiry and debate from prohibited speech.
The Orwellian twist to this madness is, of course, that the Policy is being imposed in the name of academic freedom.[15] The temerity of the Policy’s authors to disguise their lupine authoritarianism in the ovine cloak of academic freedom brings to mind another sad chapter in Columbia’s history. In 1933, months after the opening of Dachau, the beginning of Nazi book burnings, and the granting of dictatorial powers to Adolf Hitler, President of Columbia, Nicholas Murray Butler, invited German Ambassador to the United States, Hans Luther, to speak at the University. Butler rebuked calls from the student body to cancel the speech by claiming that to do so would be contrary to academic freedom. President Butler’s response deserves to be quoted in full, not only because it highlights yet another example of Columbia doing the absolute wrong thing in the name of virtue, but it is a classic example of the unmitigated hubris and arrogance of an Ivy League President:
The gentleman to whom you refer is the official diplomatic representative to the Government of the United States on the part of the government of a friendly people and is entitled to be received throughout our country with the greatest courtesy and respect. Whenever he is invited to be the guest of Columbia University and whenever he accepts such invitation, the gentleman will receive a welcome appropriate to his distinguished position. Columbia University has been for more than a century and three quarters a home and center of academic freedom. It does not ask what a man’s opinions may be but only whether he is intelligent, honest and well-mannered in their presentation and discussion. There is no subject which a company of scholars such as that assembled on Morningside Heights, is not prepared to have presented to it by a man or woman of high intelligence and good manners, and to hear fully discussed and debated. Nothing would be more unbecoming than for Columbia University to permit itself to fall victim to the illiberal theories and practices now observable in many parts of the world and so sharply criticized not only throughout the United States but in other countries as well. Any cause which must rest for its support upon persecution rather than upon reason is already lost.[16]
Such an eloquent defense of a well-mannered Nazi. Oh, how far we have come. In 1933, the President of the University was confident that Columbia’s company of scholars could handle the ravings of a Nazi apologist. But, 92 years later, Columbia students cannot tolerate a ‘Free Palestine’ chant. Lest we be accused of historical revisionism (after all, 1933 was early days in the Third Reich); let us jump to 1936 when Hitler’s ambitions were now well known.
In June 1936, President Butler expelled Robert Burke, President-elect of his class, for his participation in a protest against Columbia’s involvement in celebrating the 550th anniversary of Heidelberg University. Burke and other students had been critical of the ceremony because of its close involvement with the Nazi regime and the attendance of Nazi propaganda minister Joseph Goebbels.[17]
Quashing debate in the name of freedom is worthy of Orwell who showed us that those who assign meaning, those who control the debate, write history. There is no more glaring example of Orwell’s teaching than the recasting of the word ‘anti-Semitism’. Anti-Semitic utterances are prima facie Prohibited conduct. So, when the word anti-Semitic gets redefined to include not just the denigration of Jews but also the criticism of the nation state of Israel anyone daring to engage in such debate must now contend with the Policy and its possible disciplinary consequences. Columbia is now in the business of prohibiting its students from questioning and criticizing the policies and actions of a country. Every other country in the world, including this one, is fair game, but Israel is off limits.
Could a Columbia student write an op-ed critical of the investments made by the Holy See without being branded anti-Catholic, of course, Indeed, could that same op-ed argue that Vatican City should not exist as a separate country without fear of discipline from the Columbian overlords? But to question Israel’s creation or its continued existence in its present form becomes a punishable offense.
Anti-Zionism is not anti-Semitism no matter what the Columbia Task Force says. Can anti-Semitism be disguised as criticism of Israel? Of course it can. Just as Islamophobia can lurk within the criticism of Hamas. Thirty-six Jewish professors from Columbia challenged the Task Force’s August, 2024 Report on this and other grounds. Instead of engaging in an honest public debate, the authors of the Report accused the Columbia 36 of being anti-Semitic.[18] The University explicitly accepted this broad definition of anti-Semitism in its capitulation to the Trump administration.[19]
Those surprised that Columbia capitulated so readily to the threats and bullying of the federal government misunderstand the relationship between the University and the government. For decades Columbia has been part of the broad federal family. Columbia was not crushed by some outside apparatus; it is part of the apparatus. Columbia did not surrender its independence to some jackbooted thugs or faceless bureaucrats. Columbia did not cave in to the government; Columbia is the government. A brief historical excursion proves the point.
Columbia University never misses the chance to be on the wrong side of history. On October 1,1917 it fired two faculty members for alleged ‘disloyalty’ regarding U.S. involvement in World War I. Both were vocal opponents of the war. There were, of course, no hearings regarding their views.[20] In the 1950s, while publicly boasting how the University protects its faculty from the intimidations of the House un-American Activities Committee (HUAC), then President Grayson Kirk capitulated to the pressure and terminated a well-regarded 17-year professor who had been labeled a “communist” because she had the temerity to suggest that the United States should not use chemical weapons. The professor was never publicly accused of being a communist by the University. Instead, the President
quietly changed the employment criteria so as to disqualify her. The University managed to serve up a “communist” to HUAC without damaging its progressive, liberal brand.[21]
The pattern repeats itself in the 1960s. While publicly championing civil rights, the University evicted hundreds of mostly African American tenants from their Harlem homes so the school could build “Gym Crow”, a segregated facility with separate entrances for the mostly white college students and the mostly black Harlem residents. When confronted with this design flaw, instead of fixing it, the University obfuscated and temporized and outright lied creating such resentment in the community that the project was halted.[22]
Again, in the 1960s, when its policies supporting the Vietnam War were challenged, the University deliberately misinformed its faculty, students and the public about its long-term membership in the Institute for Defense Analyses (IDA). This, of course, led to the 1968 protest and the months-long crisis thereafter.[23]
Student demonstrations on Columbia’s campus date back to the College’s earliest years, but escalated during the late 1960s. In February 1967, eighteen members of SDS staged Columbia’s first sit-in in Dodge Hall - in protest of CIA recruitment on campus. Still other demonstrations centered around opposition to the University’s unauthorized submission of student class rankings to Selective Service Boards, military recruitment on campus, and University involvement in the Institute for Defense Analyses (IDA).[24]
And, yet again in the 1980s, when its investments propping up the apartheid regime in South Africa were challenged, instead of recognizing the moral imperative and divesting immediately it took weeks of protests to finally yield a reluctant change in policy. And, even then, after publicly announcing a divestiture policy the University dithered and took years to fully divest.[25]
At least since the 1950’s, and likely before, Columbia has been on the federal government’s payroll and in the fold. Columbia receives a substantial and continuous funding stream from the federal government.[26] The federal government dictates important admissions and hiring policies at Columbia.[27] The federal government has directed curriculum changes at Columbia.[28] And, significantly, the federal government can and has threatened Columbia’s very existence by altering its tax status.[29] Columbia is ‘independent’ of the federal government only as a matter of myth and PR. Columbia is on the team.
The essential element of the Policy, its DNA, if you will, is the definition of Prohibited Conduct, Discrimination, and Discriminatory Harassment. These must be clear and sharp and unambiguous, so as to give Columbia students ample notice of what is expected of them. The Policy, as written, falls woefully short of this objective. For example, the definition of Discrimination states:
Treating individuals less favorably because of their actual or perceived membership in, or association with, a Protected Class, or having a neutral policy or practice e that has a disproportionate and unjustified adverse impact on actual and/or perceived members or associates of one Protected Class more than others, constitutes Discrimination. Discrimination includes treating an individual differently on the basis of their actual or perceived membership in, or association with, a Protected Class in the context of an educational program or activity without a legitimate, nondiscriminatory reason so as to deny or limit the ability of the individual to participate in or benefit from Columbia’s services, activities, or privileges.[30]
“Treating individuals less favorably” could range from the petty to the profound. I don’t choose to hang out with you because of your nationality is far different than I won’t sit in the same class with you. Both could be considered treating someone less favorably. But are both covered; are either? Even within the same section, two standards are referenced- one is treat ‘less favorably’, the other is treat ‘differently’. There is overlap between the two, but surely, they are not the same. Which is the standard?
Another example from the Discriminatory Harassment definition: “Subjecting an individual to unwelcome conduct, whether verbal or physical”. How is a speaker to know a comment is unwelcome before it is uttered? A classroom discussion on Israeli policy spills into the hallway after class. This type of continued engagement would normally be applauded at a university, but it also could be ‘unwelcome’ in the hallway even if perfectly appropriate in the classroom.
The Policy under which the University threatens discipline of Layla Saliba seeks to serve two masters and, in the end, serves neither well. In order to appease the likes of Stefanik and Trump the Policy seeks to discipline those who would question and criticize Israel’s relentless assault on Gaza. Yet, true to its historical pathology, in the same document Columbia seeks to maintain the myth that it is a champion of academic freedom. What results is a mass of contradiction that defies interpretation. A glaring example is the Policy’s savings clause: “Nothing in this policy may be construed to abridge academic freedom principles of free speech or the University’s educational mission.” The explanatory footnote however states, “the fact that the Prohibited Conduct includes speech in a public setting or speech that is also motivated by political or religious beliefs does not relieve the University of its obligations to respond if the Prohibited Conduct creates a hostile environment.”[31]
The clause states academic freedom and expression are sacrosanct, i.e. “Nothing in the policy may be construed” yet the explanatory footnote strongly suggests that everything in the Policy can be construed to trump academic inquiry and expression. The Policy is clearly a limitation on academic freedom and expression. As long as Columbia pretends it is not, the Policy will elude understanding and fair application.
The Policy creates a strict dichotomy- either speech thought to be offensive by at least one person on campus is Prohibited Conduct or it is an expression of academic freedom and inquiry. The dichotomy may be strict but the line between a spirited academic debate and an expellable offense is far from clear. Indeed, by its very terms, the Policy states that the line will be determined on a ‘case by case’ basis. Violation of disciplinary rules, like criminal laws, can result in the loss of property, opportunity, and sometimes, liberty. Because of this, Columbia’s disciplinary rules must give students notice of two things: what conduct (in this case, speech) is prohibited and what are the consequences for engaging in
Prohibited Conduct. The Policy neither defines what is prohibited nor does it clearly state the consequences for engaging in Prohibited Conduct. It was not sloppy or lazy drafting-- it was an impossible task from the outset. Prohibiting speech that makes others uncomfortable simply cannot be reconciled with any working notion of academic freedom.
The drafters of the Policy have forgotten or ignored the writings of the great legal thinker molded at Columbia Law School 100 years ago, William O Douglas. Having served 37 years on the Supreme Court, Justice Douglas wrote hundreds of opinions, but the following is especially applicable to this case:
a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Terminiello v. City of Chicago, 337 U.S. 1,4(1949) (internal citation omitted).[32]
In reading the Policy’s inclusion of ‘denigrating jokes’ as an example of Discriminatory Harassment, one cannot help but recall the now famous anecdote involving Winston Churchill’s exchange with MP Bessie Braddock. When she accused him of being ‘disgustingly drunk’, he replied, “My dear you are ugly and what’s more, you are disgustingly ugly. But tomorrow I shall be sober and you will still be disgustingly ugly.” Were young Winston a Columbia man, would his genius retort have subjected him to discipline under the Policy? One would hope not, but it could have, and that is the point. Vague standards yield uneven results and stifle inquiry and debate. The campus may be quieter and even more harmonious, but the genius will wither.
Layla Sabila did not write the Op Ed in question, but she, like hundreds perhaps thousands of other Columbia students read it. Efforts to punish the author of the communication has a direct impact on those who would receive the communication. By its terms, the Op Ed is not Prohibited Conduct as defined by the Policy because it did not and does not “interfere with or limit the ability of any individual to participate in or benefit from Columbia’s services, activities, or privileges.”[33] Moreover, the speech did not occur in a setting with a captive audience. Anyone who did not want to be subjected to the ideas in the Op Ed simply could have chosen not to read it.[34]
Yet another fatal flaw in the foundational definitions in the Policy is their dependance on the subjective reaction of the audience. The same speech can be lively debate or Prohibited Conduct depending on whether it offends or makes the listener uncomfortable. This type of construct has been rejected by the courts and makes an already muddled set of rules even more unpredictable.
Whether one intends to offend is incapable of objective determination. What offends one person may have no effect on another. Coates v. City of Cincinnati, 402 U.S. 611 at 614 (1971) (finding unconstitutionally vague an ordinance criminalizing conduct “annoying to persons passing by” because “[c]onduct that annoys some people does not annoy others”); Baggett v. Bullitt, 377 U.S. 360, 368 (1964)(invalidating on vagueness and overbreadth grounds an oath requiring teachers to forswear an “undefined variety” of behavior considered “subversive” to the government). Culpability under the Policy hinges on the subjective reactions of others and therefore fails to give the ordinary student notice of what the University permits and what it forbids.
A criminal statute is unconstitutionally vague in violation of due process for either of two reasons: first, if “it fails to give ordinary people fair notice” of what is proscribed; and, second, if it is “so standardless that it invites arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). Because of the severity of consequences, Columbia’s Policy must meet or exceed these minimum standards. It does not.
Not long ago, Justice Gorsuch, another Columbia trained jurist, reminded us that “vague laws invite arbitrary power.” Sessions v. Dimaya, 138 S. Ct. 1204, 12 23(Gorsuch, J., concurring). This is especially true where the law or rule seeks to punish expression. The Policy’s vagueness chills protected speech. The Policy deserves exacting scrutiny because it threatens First Amendment freedoms. While the vagueness doctrine is “an outgrowth not of the First Amendment, but of the Due Process Clause,” Kincaid v. Williams, 553 U.S. 246 at 304, (2009) the Supreme Court applies “a more stringent vagueness test,” requiring greater statutory precision, where “the law interferes with the right of free speech or of association.” Hoffman Estates v. The Flipside, Hoffman Estates, 455 U.S. 489 at 499. The reason why the test is stricter in the First Amendment context is “to ensure that ambiguity does not chill protected speech.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2309−10 (2012); Hoffman Estates, 455 U.S. at 499, (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights.”).
This country was born of disagreement – vociferous, boisterous, and often violent disagreement with government policy. It is in our national DNA. Our founders, particularly James Madison, understood that America is not a debating society; it is a street fight, and they made ample room in the First Amendment for loud, contentious confrontation between the citizenry and their government. In 1789, it was a bodacious experiment; but more than anything else, it is what sets us apart from the rest of the world. Even a cursory review of our history shows that every major policy advancement came not from polite conversation but from years, sometimes decades, of citizens coercing their government to change course. Civil rights, women’s rights, labor rights were not achieved in the salons of polite society; they were achieved through citizens confronting government policy and forcing change. Power does not yield by polite debate. Madison understood this; our Constitution reflects this; Columbia would do well to keep it mind as it molds leaders for tomorrow.
Very truly yours
__________________
Stanely L. Cohen, Esq.
[1] Although, by little more than academic sleight of hand, the OIE has on several occasions told Ms. Saliba that she need not participate in this investigation, given that it will nevertheless proceed in her absence and determine whether she has violated any of the University protocols which deign to dictate the acceptable parameters of thought, peaceful assembly and speech among its students and faculty, on and off campus, this option is little more than a choice without choosing.
[2] A paradox to say the least. While Layla is about to graduate from the Columbia School of Social Work, the first such school in the United States, and which was established to train students “to actively build a community with an unwavering commitment to social justice and human rights,” and in doing so to hone the skill-set of its graduates to advocate for those in need, even against powerful institutional inequality, that on the eve of graduation, she finds herself to be the target of an investigation into little more than the propriety of her voice against injustice.
[3] While OIE believes that its “Anti-Discrimination and Discriminatory Harassment Polices and Procedures for Students” represents an impartial primer for notice to Columbia students as to the content neutral boundaries of campus discourse, as noted infra equal application of unconstitutional rules and regulations does not make them any the less onerous.
[4] Though New York law generally holds that the relationship between a private university and its students "is essentially a private one such that, absent some showing of State involvement, its disciplinary proceedings do not implicate the full panoply of due process guarantees"[Rensselaer Soc'y of Eng'rs v. Rensselaer Polytechnic Insts., 260 A.D.2d 992, 994 (3rd Dept. 1999)], nevertheless, the requisite clear divide between government and university is markedly absent here where on matters of speech, association and protest Columbia has long been wed to and advanced official State policy. Having thus met her “threshold showing of State involvement” [see, Cavanagh v. Cathedral Preparatory Seminary, 284 A.D.2d 360 (2d Dept. 2001)] Layla Saliba is entitled to her ‘full panoply of due process’ guarantees in advance of and at her upcoming disciplinary proceedings. See, discussion, infra.
[5] Parenthetically it should be noted that in Judaism as a Koehn I am a direct descendent of Aaron and Moses. See, Shtetl Haredi Free Press, ‘Satmar Hasidic Jews are certainly not antisemitic’: Nadler invokes Haredi anti-Zionism on floor of Congress (Dec 5, 2023) (“U.S. Representatives Jerry Nadler, Jamie Raskin, and Dan Goldman — all Jewish Democrats … [argued] against the pro-Israel resolution which … states that all anti-Zionism is antisemitism. That is either intellectually disingenuous or just factually wrong, Nadler said in remarks given on the House floor. I can assure you that Satmar Hasidic Jews are certainly not antisemitic.”
[6] It simply beggars’ imagination that while a community of largely immigrant Eskenazi Jews in and out of Israel is deemed to be Semitic, hundreds of millions of Arabs including the historically distinct body of Palestinians who have never left their birthland are somehow not.
[7] That some on both “sides “of any given protest may, at times, cross the line from fully protected speech to words brigaded in action cannot in itself constitutionally justify the blanket suppression or the sculpted carve of written or spoken words due to the cheap, convenient talisman of “discomfort.”
To be sure, speech, even the unpopular and that of discomfort has long been the linchpin of freedom. In the 17th Century, Baruch Spinoza, excommunicated from the Jewish community for his views wrote “Everyone is by absolute natural right the master of his own thoughts, and thus utter failure will attend any attempt in a commonwealth to force men to speak only as prescribed by the sovereign despite their different and opposing opinions.” Ludwig Josef Johann Wittgenstein, a Jew at birth, and professor at Cambridge University penned “The limits of my language means the limits of my world.” Jacques Derrida, famed French Algerian philosopher wrote” The first problem of the media is posed by what does not get translated, or even published in the dominant political languages.” This past century, legendary philosopher and writer Simone Beauvoir penned “I am too intelligent, too demanding, and too resourceful for anyone to be able to take charge of me entirely. No one knows me or loves me completely. I have only myself."
[8] See, Brandenburg v. Ohio, 395 U.S. 444 (1969).
[9] That the First Amendment was designed by the framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs is beyond dispute. See, Mills v. Alabama, 384 U.S. 214, 218-219 (1966). It embraces the freedom to distribute information and materials to all citizens, a freedom "clearly vital to the preservation of a free society." Martin v, Struthers, 319 U.S. 141, 146-147 (1943).
[10] Thus, why does the call to arms by Patrick Henry and John Paul Jones during the U.S. revolutionary war of "Give me liberty or give me death!" and “I have not yet begun to fight!” occupy honored patriotic pedestals in the annals of American history, but yet the call to intifada chanted by millions across the world is, in itself, deemed by partisan denialists to be but an incitement to “anti-Semitic” lawlessness. And how is it that “The Battle Cry of Freedom” and “Dixie” were revered rousing anthems to those of the North and South in the US Civil war, but yet saying or writing the phrase “From the River to the Sea … Palestine will be Free” can be twisted to become words of hate and used as a palpable ploy to suspend or to expel a principled student from their studies? What next … “To the barricades”?
[11] As noted in our submission to the OIE of April 9,2024 the “star chamber” was a controversial 16th century judicial process of the English Courts where accused were held to task by arbitrary and secretive proceedings where typically they had no advance notice of what was specifically alleged or by whom and no meaningful opportunity to prepare for or to produce exculpatory evidence on their behalf. See, generally United States v. Ju Toy, 198 U.S. 253, 268 (1905) (Brewer, J., dissenting) (asking where Chinese immigrants landing in California who had to appear and give affirmative testimony in Washington D.C. to establish lawful admission … “if this be not a star-chamber proceeding of the most stringent sort, what more is necessary to make it one?”).
To be sure, the notion students can be compelled to appear before an "investigative" chamber in an evidentiary vacuum lest their fate and future be decided without advance notice of precisely what it is that they allegedly did, and when and where, and denied an opportunity to see beforehand the “evidence” of the allegations, and with no chance to cross examine or to introduce exculpatory evidence themselves, surely presents a process which stands as a very dark star chamber-like proceeding.
[12] On behalf of a unanimous Court, Justice Sotomayor wrote “Six decades ago, this Court held that a government entity’s threat of invoking legal sanctions and other means of coercion against a third party to achieve the suppression of disfavored speech violates the First Amendment. Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” Id. (internal citations and quotations omitted). Although directed at the State itself, an agreement by a “private actor” to further these impermissible ends in response to a government edict, or in exchange for a government benefit is no less pernicious. See, also, Khalil v. Trs. of Columbia Univ. in the City of New York, 2025 U.S. Dist. LEXIS 65372 [*6](S.D.N.Y. 2025)(leave granted to amend complaint as “this case raises serious questions as to whether two branches of government violated the First Amendment by leveraging the threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression of disfavored speech.”)(internal citations and quotations omitted).
[13] See.
[14] See, Columbia University, “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students, Sept 23, 2024.
[15] In announcing what could only be described as the University’s capitulation to the Trump administration, Columbia’s acting President stated the following: “For Columbia and great universities like it, nothing could be more sacrosanct than academic freedom and free expression. These core tenets are the necessary preconditions for the discovery and discourse that enable us to push forward the frontiers of knowledge and deepen our capacity for understanding, and they have guided and defined our university for 270 years. Through centuries of lively debate, disagreement, and productive discourse, our commitment to free inquiry remains the cornerstone of our community and an indispensable foundation for our academic mission.”
[16] “Dr. Butler Refuses to Bar Nazi Envoy”, New York Times, Nov 20, 1933, p.6.
[17] See.
[18] See.
[19] See.
[20] See.
[21] “Although Columbia University presidents and trustees maintained during the cold war that the university protected its professors from McCarthyism, the case of Gene Weltfish proves otherwise. In 1952, Weltfish was called in front of the House un-American Activities Committee, and a few months later the university dismissed her under a shady rule recently created by University President Grayson Kirk and the trustees. Although she did have ties to communist groups, Weltfish denied any personal sympathies with communist causes and distinguished herself in the Anthropology department with her academic work. Her case shows how, when faced with a professor who spoke publicly about views that aligned with communism, the University gave into the same sort of McCarthyist tendencies it publicly criticized. Worst still, President Kirk did so under the guise of “academic freedom,” stating that Weltfish’s dismissal protected academic freedom…. Weltfish serves as a case study of hushed academic censorship, cloaked in the guise of budgetary and productivity rules. Her dismissal raises questions of the meaning of academic freedom during the McCarthy era, specifically at Columbia, which purported to protect freedom in academic pursuits.” Gilana Keller, Behind the Lion Curtain: McCarthyism at Columbia in the 1950s, The Current, Fall 2012.
[22] See.
[23] In 1959, Columbia joined the five-year old Institute for Defense Analyses (IDA), and University president Grayson Kirk became Columbia’s representative on the IDA board. IDA served as a forum where leading research universities and government agencies that funded military y research could discuss issues of mutual interest. Although IDA did not issue contracts for military research and development, participating members were given de facto priority. Columbia acknowledged its membership in IDA when questioned by SDS in the mid-1960s, but proved less forthcoming about the extent of defense-related secret research conducted at the University.
[24] See
[25] On April 4, 1985, seven students at Columbia University, members of the Coalition for a Free South Africa (CFSA), chained closed the doors to Columbia’s administrative building, Hamilton Hall, and sat on the steps, blockading the entrance. They were there to protest the University’s investments in corporations that operated in Apartheid South Africa. Soon after, a march coordinated by other members of CFSA passed by Hamilton Hall. When the marchers saw the small blockade on the steps, they rushed to join in. Within two hours, the seven initial protesters had seen their number grow to more than 250. The first major successful protest in favor of college divestiture had begun.
[26] See.
[27] See.
[28] See.
[29] See.
[30] Columbia University, “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students, Sept 23, 2024, p.7.
[31] Id. at p.8.
[32] See, also, An Almanac of Liberty New York: Doubleday, Douglas, William O., p. 363 (1954)(“The most important aspect of freedom of speech is freedom to learn. All education is a continuous dialogue- questions and answer that pursue every problem to the horizon. That is the essence of academic freedom and scientific inquiry”.).
[33] Columbia University, “Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students, Sept 23, 2024, p.7.
[34] Id. at p.6.
 |
| Stanley L. Cohen is lawyer and activist in New York City. |
No comments