DOE investigation raises First Amendment questions amidst pro-Palestine protests on campus.

BY ERICA MUNISAR, EDITOR-IN-CHIEF

Editor’s Note: Fourth Estate uses language in accordance with AP style guidelines. For more information on the use of the “Israel-Hamas war”, please visit the AP Stylebook.

Editor’s Note: This article was updated on March 11 to reflect various statements made by Students For Justice in Palestine towards Israel and the Oct. 7 Hamas attack.

The full letters from the Department of Education, Virginia Attorney General Jason Miyares and Students For Justice in Palestine at George Mason University can be read below. A full transcript of the Feb. 7 Student Town Hall can be seen on Fourth Estate.

Since Dec. 22, George Mason University is currently under federal investigation for “Title VI – National Origin Discrimination Involving Religion” alongside 15 other pending investigations from previous years. In response, President Dr. Gregory Washington has attributed the recent investigation to his approval of pro-Palestine protests during a recent Student Town Hall on Feb. 7. 

The investigation has raised discussion about free speech and the First Amendment, particularly in Virginia universities’ decisions to allow or disallow pro-Palestine protests as shown by letters from the Department of Education, Virginia Attorney General Jason Miyares and Students for Justice in Palestine at Mason, or SJP Mason.

During a Feb. 7 Student Town Hall hosted by University Life, nine out of 11 questions referenced the Israel-Hamas war and campus protests. At the Town Hall, Washington addressed concerns and shared a letter addressed to him by the Department of Education.  

“Dear President Washington: The U.S. Department of Education, Office for Civil Rights (OCR) received a complaint on November 29, 2023, against George Mason University (University). The complaint alleged that the University discriminated against students on basis of national origin (shared Jewish ancestry) by failing to respond appropriately to incidents of harassment in October and November 2023,” Dan Greenspahn, Supervisory Attorney for the U.S. Department of Education Office for Civil Rights said.

Washington responded to the claim in his presentation by first addressing reports of antisemitism on campus. “We had more than 70 incident reports that came to our offices [which] were about instances of antisemitism… We’ve had now two confirmed assaults on students. Those were both to students of Jewish descent,” Washington said.

Washington then claimed that Mason is under federal investigation for allowing student protests. “We have received now hundreds of letters and calls, mostly angry, that we are allowing student protests and we are allowing our students to use hateful language… The reality of the situation is right now the university is under investigation by the Department of Education because we’ve allowed the protests to continue,” Washington said.

“Look, I have been asked on numerous occasions to stop the student protests. Even when you’re protesting against me, I still support it because I support freedom of speech,” Washington said. 

Washington then claimed that other universities have shut down pro-Palestine protests over face coverings or experienced pushback due to allegations of hateful language. 

He explained Mason’s new Concealment of Identity Policy, requiring students wearing face coverings to show ID to authorized officers if requested, is a method to enable protests without shutdowns. “That’s our way of meeting the spirit of the law while simultaneously allowing you to protest, and not doing what other institutions are doing when students show up in face masks and shut the whole protest down… You will see that we are actually supporting First Amendment speech more than you think.”

However, details as to how the Concealment of Identity Policy will be efficiently enforced within protest settings remain unclear as of Feb. 18. 

Washington said that pushback against pro-Palestine protests is due to perceptions of the language used during the protests. “There’s a reason why people are angry and you’re seeing such a pushback [with shut down protests by other institutions]… When our students marched across campus and you use slogans like ‘from the river to the sea,’ we have other students who see that as the annihilation of their culture…,” Washington said.

In another letter provided during the Student Town Hall, Virginia Attorney General Jason Miyares supported this sentiment: “Virginia College and University Presidents… groups like ‘Students for Justice in Palestine’ have repeatedly held demonstrations in Virginia where students chant ‘from the river to the sea, Palestine will be free.’ This statement is a call for the complete destruction of Israel and a denial of its right to exist… The First Amendment does not protect speech that is directed to inciting or producing imminent lawless action, and which is likely to incite or produce such action,” Miyares said.

On Nov. 8, SJP Mason made a post claiming what their chants mean, further alleging that “zionists have fallen for typical racist, orientalist tropes and attempted to twist our messaging.”

On Nov. 2, SJP Mason claimed in a post that the organization does not discriminate on the basis of race, religion, national origin and more according to their community guidelines.

In a post on Oct. 9, SJP Mason defended the Oct. 7 Hamas attack, claiming that it was led by “Palestinian resistance fighters” and stating “We as Students for Justice in Palestine at George Mason call for a free Palestine, from the river to the sea, and support all forms of resistance which helps the Palestinian people inch closer to that reality.” 

Organizations such as Mason Student Government, members of Mason Student Government, Democrats at Mason and other student organizations had liked the Oct. 9 post. The full statement, which was shown at the Town Hall can be viewed below.

SJP Mason additionally demanded a boycott of Israeli Culture Week in a post on April 25. SJP Mason does not capitalize Israel in their published statements.

The investigation of Mason and Student Town Hall follows the holding of 13 protests by SJP Mason since Oct. 10, including one protest during President Joe Biden’s visit to Sci-Tech campus, where Biden’s speech was interrupted by at least 14 pro-Palestine protestors who were not confirmed as official members of SJP Mason. In their most recent protest on Feb. 8, SJP Mason made funding allegations towards Washington which were unproven.

Along with the protests, The Office of The President and Office of the Vice President published eight letters relating to the Israel-Hamas war on the following dates: Oct. 10, Oct. 17, Oct. 25, Nov. 2, Nov. 13, Nov. 14, Nov. 28 and Nov. 28 [Nov. 13 is not available online, so it is shared below]. “In my leisure, I call in my letters for Palestinian self-determination, for Palestinian state. I support that, all right? I also support Israeli and Jewish safety and defense. I support both,” Washington said during the Student Town Hall.

The letters do not address all reports of incidents on campus.

On Oct. 30, a post went viral on X, gaining 2.9 million views after two unidentified women ripped up a flyer of kidnapped Israeli children in the Johnson Center. Mason responded to the situation with a statement on social media, however, Fourth Estate could not locate a published letter from the University regarding the incident. The incident is reported as “Pending” in the Daily Crime and Fire Log.

On Nov. 1, an unidentified individual distributed antisemitic fliers to students in the Johnson Center pertaining to the media. Fourth Estate could not locate a published response from the University. The incident is not reflected in the Daily Crime and Fire Log.

On Nov. 11, SJP Mason reported receiving alleged racist and Islamophobic remarks from counter-protestors. Fourth Estate could not locate a published response from the University. The incident is not reflected in the Daily Crime and Fire Log.

On Nov. 14, a fight broke out between a pro-Palestine protest and counter-protest in which three individuals were detained. During the protest, a flag representing “Lehi or the Stern Gang” according to Oxford, was flown over the third-floor balcony by a masked individual. The flag was not addressed in the Nov. 14 letter. The fight is reported as “Cleared by Arrest” in the Daily Crime and Fire Log.

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LETTERS PROVIDED AT FEB. 7 STUDENT TOWN HALL

Letters shared from Mason regarding federal investigation of antisemitism and pro-Palestine protests.

BY ERICA MUNISAR, EDITOR-IN-CHIEF

During a recent Student Town Hall on Feb. 7, University Life physically shared documents and letters from the following: A Letter from Supervisory Attorney for the U.S. Department of Education Office for Civil Rights Dan Greenspahn; a letter from Virginia Attorney General Jason Miyares; a statement from Students For Justice in Palestine at George Mason University; and letters from the Office of the President on Oct. 10, Oct. 17, Nov. 2, Nov. 28 and Nov. 28.

As of Feb. 18, there are eight letters from the Office of The President and Office of the Vice President regarding the Israel-Hamas war which were released on the following dates: Oct. 10, Oct. 17, Oct. 25, Nov. 2, Nov. 13, Nov. 14, Nov. 28 and Nov. 28 [Nov. 13 is not available online, so it is shared below].

Not all letters were physically shared at the Student Town Hall. Additionally, not all eight letters have been publicly shared online.

The documents pertain to an ongoing federal investigation of George Mason University for “Title VI – National Origin Discrimination Involving Religion.”

 

Letter written from Dan Greenspahn, Supervisory Attorney for the U.S. Department of Education Office for Civil Rights to President Dr. Gregory Washington:

“Re: Case No. 11-24-2106

George Mason University

Dear President Washington:

The U.S. Department of Education, Office for Civil Rights (OCR) received a complaint on November 29, 2023, against George Mason University (University). The Complainant alleged that the University discriminated against students on the basis of national origin (shared Jewish ancestry) by failing to respond appropriately to incidents of harassment in October and November 2023.

OCR enforces Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. Section 2000d et seq., and its implementing regulation, at 34 C.F.R. Part 100, which prohibit discrimination on the basis of race, color, or national origin, including shared ancestry or ethnic characteristics, in any program or activity receiving federal financial assistance from the Department of Education. Because the University receives federal financial assistance from the Department of Education, OCR has jurisdiction over it pursuant to Title VI.

Because OCR determined that it has jurisdiction and that the complaint was timely filed, OCR is opening the complaint for investigation. OCR will investigate the following issue:

Whether the University responded to alleged harassment of students based on their national origin (shared Jewish ancestry) in a manner consistent with the requirements of Title VI.

Please note that opening an investigation in no way implies that OCR has made a determination on the merits of the complaint. During the investigation, OCR is a neutral fact-finder, collecting and analyzing relevant evidence from the Complainant, the University, and other sources, as appropriate. OCR will ensure that its investigation is legally sufficient and fully responds to the allegation in accordance with the provisions of the Case Processing Manual. Please open this link for additional information about OCR’s Complaint Processing Procedures.

When appropriate, a complaint may be resolved before the conclusion of an investigation if the university expresses an interest to OCR in resolving the allegation(s) and OCR determines that it is appropriate to resolve them because OCR’s investigation has identified concerns that can be addressed through a resolution agreement. In such cases, OCR obtains a resolution agreement signed by the university. This agreement must be supported by the evidence obtained during the investigation, and it must be consistent with the applicable statute(s) and regulation(s). Additional information about this voluntary resolution process may be found in OCR’s Case Processing Manual.

Attached is a request for data necessary to investigate this complaint. OCR requests that the University submit this information within 25 calendar days of the date of this letter (i.e., by January 16, 2023). We prefer that you submit information electronically, if feasible. [Footnote: ‘If your submission cannot be sent via email, OCR can set up a secure site for you to upload your submission. You may contact us for more information about this option.’] If any item in our request is unclear, or if you experience any difficulty complying with this request, please contact us as provided below prior to the expiration of the 25-day period. Please be aware that OCR may need to make additional requests for information in the future. If OCR needs to conduct an on-site investigation, we will notify you in advance.

Please be advised that the University must not harass, coerce, intimidate, discriminate, or otherwise retaliate against an individual because that individual asserts a right or privilege under a law enforced by OCR or files a complaint, testifies, assists, or participates in a proceeding under a law enforced by OCR. If this happens, the individual may file a retaliation complaint against the University with OCR.

Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. If OCR receives such a request, OCR will seek to protect, to the extent provided by law, personally identifiable information that, if released, could reasonably be expected to constitute an unwarranted invasion of personal privacy.

We look forward to your cooperation during the resolution of this complaint. If you have any questions, please contact Sharon Goott Nissim, the OCR attorney assigned to this complaint, at 202-245-7261 or sharon.nissim@ed.gov.

Sincerely,

Dan Greenspahn

Team Leader, Team 1

District of Columbia Office

Office for Civil Rights”

 

Letter written from Virginia Attorney General Jason Miyares to Virginia College and University Presidents on Nov. 16, 2023:

“Virginia College and University Presidents:

The barbaric terrorist attack against Israel on October 7th was without excuse or justification. Since then, we’ve seen tensions rise on our campuses in Virginia amid a spasm of antisemitic protests, chants, and rage. Countless Virginia students of Jewish background feel threatened and unsupported in today’s climate on our college campuses.

This is unacceptable.

Concerned students and parents are urging us to act with decisiveness and moral clarity. Our Virginia universities should do more to address antisemitism.

First, groups like ‘Students for Justice in Palestine’ have repeatedly held demonstrations in Virginia where protestors chant ‘from the river to the sea, Palestine will be free.’ This statement is a call for the complete destruction of Israel and a denial of its right to exist. Conveniently, these protestors never explain what would happen to the eight million Jews who live between the river and the sea, leading to the inescapable conclusion that the protestors are calling for a second Holocaust against innocent men, women, and children.

These slogans and chants mostly have been met with silence from university leaders, a silence both agitators and the most vulnerable have noticed. The Anti-Defamation League reports a 388% increase in antisemitic incidents compared to the same period last year. Across the country, Jewish students have been threatened in person and online.

The First Amendment does not protect speech that is directed to inciting or producing imminent lawless action, and which is likely to incite or produce such action. See ‘Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)’. I strongly recommend that you review your policies to ensure that you are taking those steps necessary to protect your students and others in your campus community from unlawful incitement beyond the bounds of the First Amendment.

Second, the right to freedom of speech does not shield individuals who commit crimes from prosecution. If you have demonstrators who commit assaults or acts of vandalism, they can and should be held criminally accountable. You can do this by working with law enforcement and your jurisdiction’s Commonwealth’s Attorney. If students are threatened, you can inform them of how they can obtain protective orders. In addition, students are, of course, subject to student codes of conduct. Of note, pursuant to § 18.2-422 of the Code of Virginia, it is unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing. There are exceptions to this prohibition including but not limited to wearing a mask for a bona fide medical purpose. I urge you to confirm there is sufficient security at any demonstrations to promote student safety and to ensure that Virginia’s criminal laws are followed.

Third, consistent with their existing policies, public universities may apply different rules to demonstrations that are initiated by individuals who are not affiliated with their institutions. Some Virginia universities require a school-affiliated sponsor for a non-student to demonstrate on campus; others have created a limited public forum regulating the time, place, and manner of demonstrations. Such rules can help you promote a safer campus environment for your students.

Fourth, I encourage you to remember your own First Amendment voices. In 2017, virtually every college president in Virginia rightly condemned the “Unite the Right” rally in which bigots marched through campus shouting antisemitic statements. We weekly confront the equivalent of multiple “Unite the Right” rallies across this nation, including in Virginia. Your deafening silence in 2023 following your unhesitating condemnation in 2017 has not gone unnoticed.

We need leaders with moral clarity, not leaders who shirk the responsibility of calling out bigotry and antisemitism. I urge you to help demonstrate that, in Virginia, we oppose antisemitism and anti-religious bigotry in all its forms.

Finally, on October 31st, Governor Glenn Youngkin issued an Executive Order instructing the Secretary of Education to coordinate with college and university presidents to promote the safety of, and provide resources for, Jewish and Muslim students, including mental health resources. In February, I created the first Antisemitism Task Force to monitor, gather information, educate, and investigate instances of antisemitism in the Commonwealth. As you consider more counseling and mental health support for students who are affected by anti-religious hatred, my Task Force stands ready to assist.

Now is not the time for moral equivalency or half measures. Now is the time for moral courage and leadership.

Thank You,

Jason S. Miyares

Attorney General”

 

Statement by Students For Justice in Palestine at George Mason University on the Current Situation in Palestine, Oct. 9, 2023:

“George Mason University’s Students for Justice in Palestine stands in support of the liberation of the Palestinian people and supports the right to resist for Palestinians living under the zionist occupation. On October 7th, 2023, Palestinian resistance fighters began mobilizing from Gaza into surrounding occupied areas, reclaiming land and seizing settlements considered illegal and a violation of international laws. This mobilization is in response to decades of colonial violence against the Palestinian people – including the never-ending siege on Gaza, the consistent brutal attacks committed against Palestinians, both by the iof and by settlers, and the iof’s habitual desecration of Al-Aqsa mosque. The iof’s bombing of Gaza in response to the resistance is unceasing and barbaric, carrying out several massacres, leveling homes on residents’ heads, and leaving entire families martyred in a pathetic attempt to restore its broken ‘prestige’ due to historic resistance advances.

As university students, it is crucial to have a genuine understanding of the true nature of decolonization. Decolonization is not just a term studied within the confines of a classroom, and it is not just a term analyzed through political theory and social literature. Rather, it is a term that entails resistance in the face of a colonizer. Decolonization entails the struggle for liberation of a colonized people from the grasp of their colonizers. This struggle for the much-sought after liberation from the colonizer is not meant to be metaphysical – but material. It has been clear from the start of this occupation that the Palestinian people year for a material end to their colonial suffering – not for the continued proliferation of metaphysical discourses and acknowledgements of their colonized existence.

As this happens, it is our obligation to our principles that dictates we must not fall into the trap of distinguishing between armed resistance fighters and non-combatants, as every Palestinian has a role in the current state of affairs. Every martyr must be mourned, and every zionist strike must be seen for the crime that it is. We will not allow the occupier or western media to dehumanize us by creating distinctions between colonized people whose remaining existence on their lands is ‘militant.’ Just like the United States, the occupation and their allies labeled the ANC and Nelson Mandela as ‘terrorists’ for resisting Apartheid South Africa. They will always label those who resist their colonial and imperialist interests as ‘terrorists.’ This does not, however, make it true.

Every Palestinian is a civilian even if they hold arms. A settler is an aggressor, a soldier, and an occupier even if they are lounging on our occupied beaches. As the iof calls up thousands of reserves, it is clear that all settlers are soldiers. There exists a colonizer and the colonized, an oppressed and the oppressor. The people cannot be dissociated from resistance, because we are in a constant state of resistance. This struggle has been imposed on the Palestinian people. To resist is to survive, and to resist is a right.

We as Students for Justice in Palestine at George Mason call for a free Palestine, from the river to the sea, and support all forms of resistance which helps the Palestinian people inch closer to that reality. We call on all those who identify as ‘allies’ to the Palestinian liberation movement to take similar action. Peace cannot exist without justice, and justice for the Palestinian cannot prevail without action.

With steadfastness and confrontation,

GMU SJP”

 

Letter from President Dr. Gregory Washington on Nov. 13:

“Dear students,  

Given the recent event with George Mason University’s all-campus listserv and feedback it generated from some students, I am writing to update you myself on what happened and why certain decisions were made. 

The incident involved issues with one of our listservs, where individuals were inadvertently enabled to respond to a listserv that is not supposed to allow for responses. Nonetheless, nine email responses to my original email were sent to the listserv, which every student, faculty, and staff member in our community received – more than 49,000 in all. 

Based on a rigorous after-action analysis, we attribute this primarily to system configuration and human error that allowed responses intended for me to be sent to all 49,000-plus recipients. We removed those responses from our server, and the listserv was shut down until we could pinpoint the malfunction. 

Responses to emails to broad-distribution listservs about any issue, especially campus security enhancements, cannot be accommodated, as our listservs are dedicated to outbound campus information communications purposes only. Allowing responses of any kind to a 49,000-recipient listserv would quickly overwhelm our inboxes, and render useless a critical channel to share vital and trusted information for our community. In addition, if we were to allow one set of responses to a listerv message, we would need to allow others the chance to respond, and this is just not the purpose of our listserv. 

Our removal of these emails did not hinder anyone’s free speech, nor was it intended to. Those messages were simply not supposed to be there and were removed. We continue to provide students with ample opportunities to exercise their free speech rights even when they use speech that others deem as hateful and demeaning. 

Warmest regards, 

Gregory Washington 

President”