Even for a private institution, Fordham must show that it has acted on a “rational interpretation of the relevant evidence” and “substantially adhered to its own published rules and guidelines.” The question is how a name change satisfies either of those prongs.
Fordham has blocked the group as a risk for “polarization” in “advocating political goals of a specific group, and against a specific country.” Yet, the group has noted that there are pro-Israel groups on campus. When this rationale was criticized, the university said that it was really opposed the group because of a history of the group in causing “disruptive conduct on campus” at chapters at other schools.
This was a familiar rationale. In Healy v. James, 408 U.S.69 (1972) the Supreme Court held that Central Connecticut State College violated the first amendment in refusing to recognize a campus chapter of Students for a Democratic Society. Like Fordham, the college cited the role of other chapters in violent protests on other campuses. The university determined that the group “would be a disruptive influence at the college.” Eight justices rejected the argument and Justice Lewis Powell Jr. held that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”
The university filed an opposition to a motion for a preliminary injunction last month that stated:
[W]hile Petitioners were denied official club status by the University, they were not precluded from promoting awareness and discussion of the Israeli-Palestinian conflict and/or the complex issues arising therefrom. …
[The club can’t show the required “irreparable harm” because] Petitioners have other alternatives to a pro-Palestinian club without the SJP moniker. Instead, they insist on being affiliated with SJP, a decision that was not supported by the University. …
A proposed University sanctioned club is one of many different ways to pursue conversation about the Israeli-Palestinian conflict. While an SJP affiliated club is Petitioners [sic] preferred vehicle to facilitate the conversation, it is certainly not the only method by which one can invoke dialogue and discussion on the topic. … Petitioners simply cannot do so with the financial and other support of the University under the moniker of their choosing.
That seems weak and transparent. The university has been accused of opposing the group based on the content of its views. It has also dismissed the interest in being treated the same as other political groups. It was a position condemned by over 100 faculty members.
As many on this blog know, I favor open free speech forums. I think having pro-Israel and pro-Palestinian groups enriches a campus. All groups must adhere to free speech principles and any violent or disruptive conduct should result in discipline (including the withdrawal of recognition and support by the university). The difference is that the status is based on conduct rather than content.