Government files motion to dismiss Princeton’s DACA lawsuit

The Department of Homeland Security filed a motion last week to dismiss the lawsuit Princeton University, a Princeton undergraduate and Microsoft Corp. had filed to block the rescission of the DACA.

“Even if Plaintiffs’ challenge were somehow justiciable, the assumption underlying it would compel dismissal,” said the motion to dismiss, which was filed November 22. “This case should be dismissed.”

The DHS argued that the plaintiff’s legal argument was based upon an incorrect reading of the Constitution and other federal laws; furthermore, Princeton and Microsoft did not have legal standing to sue in the case, the government claimed.

“The Rescission Policy does not regulate them, require them to do (or refrain from doing) anything, or restrict them in any way,” the motion to dismiss said. “The unavoidable reality that any enforcement of immigration laws will inevitably have some unintended or derivative effects does not provide carte blanche to challenge such enforcement decisions whenever there is a disagreement about federal immigration policy.”

Princeton and the other plaintiffs filed the suit earlier this month in Washington, D.C. district court, claiming that the Trump administration had violated procedural law and civil rights by planning to end the Obama administration’s DACA policy.

The DACA program, or Deferred Action for Childhood Arrivals, allowed undocumented immigrants who came to the country as minors and fulfilled other requirements to obtain protection from deportation. The Trump administration announced in September that the program would be phased out, although President Trump called on Congress to pass DACA as a law.

The plaintiffs are required to file a response to the motion to dismiss by December 15. A motion on preliminary matters in the case will be held on January 31 in the district courthouse in Washington.

Princeton made errors in reporting 2017 We Speak Survey

The recently released We Speak report used potentially misleading techniques to report some data and contained errors with basic arithmetic, a review by the University Press Club has found.

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Undergraduate students reported 116 rapes in the 12 months preceding the 2017 survey, among the roughly half of the student body that responded. More than 500 undergraduates reported experiencing sexual misconduct in the same period, including sexual assault, stalking, dating violence and sexual harassment.

These results were similar to those found in past years, but a change in reporting techniques altered how some statistics associated with rape and sexual assault were reported, including whether the perpetrator was another Princeton student and whether victims were drinking before their assault.

Respondents were given the option on this year’s survey to decline to answer further questions after reporting that they had been raped, which had not been an option in previous years, and people who did not respond to further questions were included in the results.

For example, the share of undergraduates who reported that their rape was committed by another Princeton undergraduate is 20 percent lower in the 2017 report than in the 2016 report. The University used the same language when reporting the statistic in each report.

“Was the person a student at Princeton?,” the survey asked referring to a respondent’s rapist. “Yes, and undergraduate student,” one of the answers, is reported as the chosen answer 82 percent of the time on the 2016 survey, and only 61 percent of the time in the 2017 survey.

A decline in the share of rapes that were committed by other students could be interpreted as a good thing. A slightly closer look at the data, though, reveals that the drop might not have happened. Of the students who responded to the question, three in four reported being raped by another Princeton student, which would be not be significant change.

Princeton added the option to decline to answer follow-up questions because recounting details of sexual assault was overly traumatic for many people, Jed Marsh, the University’s vice provost for institutional research, told the University Press Club.

Marsh said that the change in reporting would not mislead anyone who was reading the report.

The We Speak survey was originally pitched as a centerpiece of the University’s efforts to seriously combat sexual assault and harassment on campus soon after the Department of Education found that Princeton was in violation of Title IX for neglecting issues of sexual misconduct on its campus.

The reported proportion of rapes that occurred in University-owned dorms also dropped from last year. According to the 2017 report, 32 percent of respondents said they were raped in an University-owned dorm room; however, that number rises to 58 percent if one removes respondents who did not answer the question.

(Either number would be a decrease from what was reported in the 2016 survey, but it would only be a small decrease if one excludes students who did not answer from calculations.)

A pie chart in this year’s report representing the “involvement of alcohol” in rape said that 54 percent of victims had been drinking before their assault. It lumped victims who had not been drinking and who had not answered the question into the same category: “Neither or unknown.”

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There are two problems with this chart that make the data misleading. The first is that the survey said that 59 percent, not 54 percent, of rape victims reported either drinking and using drugs or just drinking before being attacked. This chart leaves out the five percent of rape victims who reported both drinking and using drugs before being assaulted.

Marsh said that the chart was only supposed to show the data for rapes where the victim indicated only drinking alcohol (as opposed to drinking and doing drugs), but that is not marked on the report. The chart’s header spoke only of “involvement of alcohol.”

Another issue is with the reporting of “Neither or unknown.” A reasonable person, reading the graph without seeing any of the detailed information in the report, would not know that respondents who did not answer the question were lumped in with people who were not drinking before being assaulted.

One is led to believe that only a slim majority of rape cases involved alcohol, which is probably  not accurate. About three in four respondents who answered the question indicated that they had been drinking before being raped, which is a nearly identical statistic to the 2016 report.

There is no evidence that everyone who declined to answer the question had not been drinking, which the pie chart suggests.

Part of the idea behind the We Speak surveys was that numbers would be comparable across all three surveys, to track any trends. The 2017 report echoed that sentiment, saying that the survey and its results were “largely comparable” with past versions

Marsh said in his interview with the Press Club that questions about the events surrounding rape and sexual assault should not, in fact, be viewed as comparable between the different surveys.

Because there was no data on whether the group that declined to answer further questions was statistically representative of the respondents as a whole, Marsh did not want to exclude them from the report, he said.

“The best way to read the follow-up details section is to say that we know at least this many people experienced this behavior,” Marsh said. The phrase “at least” never appeared in the section of the We Speak with the follow-up details.

In addition to potentially misleading reporting techniques, some of the data that Princeton reported was simply incorrect.

A one-page infographic released on the Title IX Office’s website said that “1 in 5” undergraduate women experienced sexual misconduct. This is a mistake. It should have said “1 in 4” or, more accurately, “1 in 3.7,” since 27 percent of undergraduate women who responded to the survey reported experiencing sexual misconduct.Screen Shot 2017-11-27 at 2.32.25 PM

(Marsh said that the infographic was fixed after the University Press Club requested a comment on the mistake, but the infographic on the Title IX Office’s site still has the incorrect “1 in 5” statistic, as of press time.)

Many members of the University community relied upon the University’s infographic for the most important findings of the 322-page report. The Daily Princetonian copied the University’s infographic onto its front page, and used the incorrect “1 in 5” statistic in its article on the report.

The Undergraduate Student Government included an announcement of the 2017 report’s release in one of its emails to the undergraduate student body, but included the infographic from last year, not this year.

“Thank you for alerting me of the error in my last email,” Myesha Jemison, USG President, wrote in an email. USG later sent out an email with the infographics from both this year and last year.

In the past two years, Princeton’s support for the We Speak survey has become less vocal, and the University has not addressed the link between alcohol and sexual assault on campus, even after the link was highlighted in the year of the first survey.

University President Christopher Eisgruber was alarmed when the first edition of the We Speak report, released in 2015, showed a high correlation between alcohol and the 143 cases of rape against Princeton undergraduates reported on the survey.

“We need to find ways to reduce the harms and risks that result from the misuse of alcohol on this campus,” Eisgruber wrote in a letter to the university community after the report was released.

Princeton’s Faculty-Student Committee on Sexual Misconduct, which Eisgruber had convened after the 2014 settlement with the Department of Education, made a series of recommendations for improving the We Speak survey and lowering the rates of sexual misconduct on campus.

Not a single recommendation explicitly mentioned alcohol, although greater cooperation with the eating clubs was proposed, and the committee said that they wanted to wait for the second iteration of the survey to make more substantive recommendations.

Last November, Princeton released the results of the second round of the We Speak survey, which again showed a close connection between drinking and rape committed against Princeton students by Princeton students. That year, 98 rapes were reported on the survey.

Eisgruber did not release a statement after the 2016 report was released.

The committee on sexual misconduct that was created after the first We Speak survey released a new report, which included nine specific recommendations for Princeton to reduce the incidence of sexual harassment and assault. Not a single one of the nine specifically mentioned alcohol, even though almost eight in ten undergraduate rape victims reported that they had been drinking before their assault.

One recommendation mentioned closer cooperation with the eating clubs, but the We Speak report showed that alcohol was not limited to Prospect Avenue. A majority of respondents who were drinking in the hours before their rape had done so in University-owned dorms, and most were drinking hard liquor, which is not widely available in the eating clubs.

The 2017 report had its problems with reporting data, but adjusting the data to match the reporting techniques of previous years revealed a similar correlation between drinking and rape on campus, and most of the people who reported drinking before being raped did so in University-owned dorms.

Eisgruber did not release a statement to accompany this year’s report. The committee on sexual misconduct is expected to release another set of recommendations in the spring.

“The President is as committed to this as he was the first time the survey happened,” Marsh said. He said that Eisgruber would have had less an impact if he had written a letter after each report was released.

More than 100 Princeton undergraduates are victims of traumatic violent crimes every year, and these are overwhelmingly committed by other Princeton undergraduates, usually in Princeton-owned dorms. Princeton has a responsibility to its students to take reasonable steps to stop these rapes.

The We Speak surveys were created with the goal of increasing transparency and demonstrating that the University could hold itself accountable on something that virtually everybody agreed was a crisis Princeton needed to address.

More than two years later, it seems like Princeton has faltered in fulfilling that promise.

Following Hotovely talk, AJP publishes statement on free speech

The Alliance for Jewish Progressives (AJP) has just released a statement regarding the CJL’s postponement of Tzipi Hotovely’s talk, which continued after Princeton Chabad decided to sponsor the event. You can read our live coverage of yesterday’s protest and speech. The press release reads as follows:

FOR IMMEDIATE RELEASE: 11/7/2017

 Alliance of Jewish Progressives’ Statement Regarding the Equal Protection of Free Speech

The Alliance of Jewish Progressives

PRINCETON, NJ., November 7, 2017. The Alliance for Jewish Progressives at Princeton University (AJP) has always been and will continue to be in fervent support of free speech. We recognize that silencing of oppositional voices from both the left and the right is a real and frustrating issue on college campuses. However, we want to make clear that that is not—and has never been—our purpose.

On Sunday evening, we, the Alliance of Jewish Progressives at Princeton University, published an open letter to the Center for Jewish Life Princeton Hillel (CJL), criticizing its unbalanced censorship policy with respect to Israel-related speakers. The CJL’s Israel policy states that “the CJL will not, however, sponsor groups or speakers that, as a matter of policy or practice, foster an atmosphere of incivility, intend to harm Israel, or promote racism or hatred of any kind.”

For the past three years, the CJL has repeatedly used its Israel policy to subject AJP’s progressive events to intense and often covert scrutiny. As a result, the CJL refused to sponsor proposed events with left-wing speakers, including feminist activist Penny Rosenwasser, Israeli filmmaker Shimon Dotan, and the Israeli non-profit Breaking the Silence. The CJL initially chose not to apply the same standard of scrutiny to MK Tzipi Hotovely’s visit, and this was the focus of AJP’s protest.

We disagree with this policy and its potential for unqualified censorship and want to point out the CJL’s hypocrisy in applying its policy only to left-wing speakers. By drawing attention to this policy over the past few days, we have tried to highlight its failures, not to increase censorship on campus. We are now calling for a revision of the CJL’s Israel policy that will allow for open discourse within the campus Jewish community.

Over the past two days, members of the American and Israeli media have mischaracterized our protest as an obstruction to free speech. On the contrary, our intention was neither to censor MK Tzipi Hotovely nor to cancel the event, but to highlight the CJL’s systematic silencing of leftist voices on campus through uneven application of its ostensibly neutral Israel policy.

According to The Times of Israel, MK Hotovely said that the cancellation of her talk at Princeton reveals “a deep and severe crisis of values” and that “a liberal dictatorship is ruling here.” MK Hotovely clearly misunderstands the intricacies of the Princeton Jewish community and the aims of our protest. Our Hillel’s response to the concerns of progressive Jewish students does not constitute a “liberal dictatorship.”  Rather, the events of the past two days show the CJL’s commitment to more equitable standards of inclusivity and diversity.

We, members of AJP, are progressive Jewish students who are deeply committed to our Jewish communities. We are the proud recipients of Jewish education through American institutions such as Jewish summer camps, Jewish day schools, Hebrew schools, and local synagogues. We are dedicated to working with our Hillel to promote nuance and critical thinking in these American Jewish institutions. Every official AJP meeting begins with a Jewish text study, and we draw our progressive values directly from Jewish tradition. In Yevamot 87b, we learn that “Silence is equivalent to consent,” “יבמות פז ע״ב) “ושתיקה כהודאה דמיא). Our Jewish values and our commitment to open discourse on campus are the source of this week’s protest.

Ultimately, Chabad at Princeton picked up the sponsorship for the event, and MK Hotovely spoke to a full lecture hall of students — including many members of AJP— as planned, but without CJL sponsorship. We listened politely as MK Hotovely denied the existence of Palestinian history and reiterated her recent statements that Reform and Conservative Jews have “emptied Judaism of substance.”

We appreciated the opportunity to engage in respectful disagreement and lively discussion with MK Hotovely and look forward to continuing the conversation in the future. However, such a conversation will be possible only if the CJL protects the free speech of both right- and left-wing members of the Jewish community. We are proud that our community is committed to free and balanced discourse on campus. We hope to see this commitment endure.

We invite respectful questions and comments on our Facebook page, The Alliance of Jewish Progressives.

LIVEBLOG: Hotovely talk continues despite CJL cancellation, students protest

Update- 10:00 am

The Alliance for Jewish Progressives (AJP) commended the CJL for postponing the talk, despite Chabad’s decision to continue the event, in a letter to the editor published last night in the Daily Princetonian.

“AJP appreciated the opportunity to engage in respectful protest and a lively discussion with Hotovely, but wants to reaffirm that the CJL made the right decision in choosing not to sponsor Hotovely’s talk without proper scrutiny under its Israel policy,” the letter states. “With this decision the CJL showed its commitment to balanced discourse on campus. Thank you to the CJL staff. We hope to see this commitment endure.”

7:06 pm

“The people that are calling themselves refugees are not refugees.”

“Keeping them in refugee campus is ridiculous. 70 years? get over it.”

6:50 pm

“To help Palestinians, change the regimes that abuse and abolish human rights, that don’t give those children an education. Fight their leadership, don’t fight Israeli leadership. Israeli leadership is willing to give everyone equal rights…”

Asking about Hotovely’s views on education, one student asked how a discussion can begin if some say “some people don’t people have history and this is our land.”

“Why is Israel the only country being singled out for this?” Hotovely said. “How come you challenge this question to the only Jewish state in the world?”

6:38 pm

Value, Hotovely said, is “the major word I want to talk about in my lecture.” She asked audience members to share problems of the 21st century.

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6:26 pm

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Yair Lapid’s Tweet, in English: “The cancellation of the speech by Hotovely shows ‘progressive’ liberals are only interested in hearing themselves.”

6:15 pm

“This conflict is not about land,” Hotovely said. “After the year 2000, the Israelis realized this was not about land.”

6:11 pm

Hotovely said she hadn’t heard of plans by government to make a database of American Jewish college students, raised as a question by a student.

Here’s a link to an article about it from last month: https://www.haaretz.com/israel-news/.premium-1.817448

6:01 pm 

Hotovely began by inviting audience members to ask her questions before she speaks. A few, paraphrased, include:

What role, if any, American Jews should play in giving their opinions about Israeli-Palestinian issues?

I came here to get the other side of an argument I’ve only heard one side of…how do you promote dialogue in your everyday work and policy?

I wanted to ask specifically about the demographics of voting in the state of Israel…if the citizens in the West Bank were to be given the right to vote.

5:50 pm 

Rabbi Eitan Webb has opened the event:

“You all know this event was on again, off again, on again.”

“I wanted to see the land that god has given to the Jewish people.”

“Conversations are how we learn.”

“President Eisgruber writes that the emphasis on independent thinking is at the heart of a liberal arts education.”

“We bend over backwards to give free speech to all and it is an honor to make sure this right is upheld to all.”

“I think this is a great pride to academic freedom we came today in order to speak, in order to create a dialogue.”

5:42 pm

There has been a bit of coverage in Israel-centric newspapers (mostly conservative ones) of the event today, particularly the CJL withdrawing its sponsorship last night in response to student protests.

Jerusalem Post: http://www.jpost.com/Diaspora/Princeton-Hillel-director-cancels-Deputy-Foreign-Ministers-talk-on-campus-513541

Times of Israel: https://www.timesofisrael.com/princeton-hillel-cancels-hotovely-speech-after-dovish-jewish-groups-protest/

Chabad announced today that it would sponsor the speech after the CJL dropped out, so the speech is on, as planned. Multiple CJL administrators are in attendance. The speech hasn’t started yet, as it looks like they’re trying to make room to let more people–many of them protestors–inside.

5:33 pm

Speech is about to start. Among the groups here, there are four PSafe officers in the room, a couple aides and security staff for the MK, a couple photographing, a guy in an APES sweatshirt, at least one person from ODUS.

PSafe had its Operations Support Unit’s truck parked outside Lewis Library, blue and red lights flashing.

5:10 pm

Last night, the Princeton Alliance for Jewish Progressives (AJP) circulated a letter of protest objecting to a public talk scheduled for today by Tzipi Hotovely, an Israeli political and member of Knesset, hosted by the University’s Center for Jewish Life. A few hours later, after the Daily Princetonian published the signed letter, the CJL cancelled the event.

This afternoon, Chabad announced that it would sponsor the event. Hotovely will now speak at the original location and time, Lewis 138 at 5:30 pm.

Rabbi Eitan Webb at Chabad, in an email sent this afternoon, stated:

“As a firm believer that every person is entitled to speak, and that dissent and debate are meant to be done in person with even more speech and not by preventing speech, I am glad and honored to be tonight’s sponsor.”

Last night, the CJL stated it would “indefinitely postpone the program” until “we can properly vet the program in the CJL. In the AJP letter, students claimed that the talk violates the CJL’s own official policy on Israel-related events to not “sponsor groups or speakers that, as a matter of policy or practice, foster an atmosphere of incivility, intend to harm Israel, or promote racism or hatred of any kind.”

Further, the letter stated that the CJL’s Israel Policy has “previously served as a thinly veiled method to exclude left-wing voices” by refusing to co-sponsor AJP-proposed events.

Students protesting the talk gathered in a Frist classroom at 4:30 pm this afternoon to make posters: “I believe in Palestinian History- Why don’t you?”, “If this is Judaism, I am not a Jew”, “MK, Hotovely, I respectfully disagree.”

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Students are now gathered outside Lewis 138.

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Princeton sues government over DACA, but expert doubts case is strong

Princeton University, a Princeton senior and the Microsoft Corp. filed a lawsuit in federal court Friday against the Trump administration for rescinding the executive order that created the DACA program. The plaintiffs claimed the administration’s actions violated their rights to due process and equal protection.

A Princeton professor of constitutional theory told the University Press Club that Princeton was likely on shaky legal ground.

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“The general rule in constitutional law is that a president has complete discretion to issue executive orders and to rescind executive orders from previous presidents,” said Stanley Katz, a professor in the Woodrow Wilson School and the editor of the Oxford International Encyclopedia of Legal History.

Katz noted that he had not had time to read the exact text of the lawsuit, so he could provide a general analysis of the legality of the Trump administration’s actions, but not a detailed analysis of the plaintiffs’ specific arguments.

DACA, Deferred Action for Childhood Arrivals, is a policy that grants work permits and protection from deportation to undocumented immigrants who came to the United States before the age of 16 and did not have a criminal record. President Barack Obama started the policy in 2012 through executive action.

President Donald Trump announced on September 5 that he was rescinding the executive action that created DACA, although he urged Congress to pass DACA as a law and instituted a six-month waiting period before he would end the program.

According to the lawsuit, the Trump administration’s actions violated the Fifth Amendment rights to due process and equal protection of the University, Microsoft and Maria de la Cruz Perales Sanchez, the Princeton senior who is a plaintiff in the suit.

“The Due Process Clause imposes limits on federal government decisions that deprive individuals of liberty or interests protected by the Fifth Amendment,” the lawsuit asserts. “Rescission will, without due process of law, deprive the University of several interests cognizable under the Constitution.”

The plaintiffs also argued that the Trump administration broke the Administrative Procedure Act, a federal law that governs how the executive branch makes regulations.

“Defendants’ disregard for the reasonable reliance of Perales Sanchez and hundreds of thousands of other vulnerable young people, and others affected by DACA’s rescission is the hallmark of arbitrary and capricious action and an abuse of discretion,” the lawsuit asserts.

Princeton and Microsoft have a legal interest in the matter that allows them to be plaintiffs in the suit because of the investments they have made in DACA recipients, the lawsuit asserted. Princeton has enrolled at least 21 DACA recipients, and at least 45 are employed at Microsoft and its subsidiaries.

“As a result of the rescission of the program, Princeton will suffer the loss of critical members of its community,” the lawsuit asserted. “Similarly, Microsoft will lose employees who fill critical positions in the company’s workforce and in whom the company has invested.”

University President Christopher Eisgruber has repeatedly spoken in favor of preserving DACA since Trump’s election. At other times, however, Eisgruber has said that the University should remove itself from political discussions to protect the integrity of its academic mission.

“I must be cautious about signing petitions and especially about announcing any view as the official position of the University,” Eisgruber wrote in the Daily Princetonian in June about the debate over the Paris Climate Accords and climate change. “There have been and will be other issues where I have more latitude to speak as president.”

Microsoft’s President and Chief Legal Officer, Brad Smith, is a Princeton graduate. It is unclear if that connection inspired Princeton and Microsoft to file a joint lawsuit.

“We filed together because this is an issue that both Princeton and Microsoft have cared deeply about,” University Vice President for Communications Dan Day wrote in an email. “Filing together helps make the point that rescission of the DACA program would have harmful effects on both universities and companies.”

Day did not say whether the University has any other significant connection or partnership with Microsoft.

Princeton Advocates for Justice, a coalition of mostly progressive student groups on Princeton’s campus that has lobbied the University to more vocally support DACA, responded positively to the lawsuit.

“PAJ applauds the University’s lawsuit and calls on Princetonians to stand up for DACA recipients and all undocumented people in the Princeton community and beyond,” said Nicholas Wu, the president of Princeton Advocates for Justice.

The lawsuit was announced in a statement on Princeton’s website that was posted Friday afternoon. Princeton posted links to the announcement on its Instagram, Facebook and Twitter pages.

The plaintiffs are represented by the Chicago-based law firm Jenner & Block. The firm also filed an amicus brief Wednesday in favor of the University of California’s lawsuit against the Trump administration’s DACA repeal.