Win for the Brandeis Community!

Judgment of the Court:

This Court was unable to come to any majority opinion, meaning that no single decision or rationale gained the support of a majority of the Justices. When such a situation occurs, we issue a plurality opinion, which has been explained thus: “When a fragmented Court decides a case… the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” (Marks v. United States).

In judgment, this Court finds for the Respondent, the Student Union.
Held by Associate Justices Julia Sferlazzo, Judah Marans, and Matt Kriegsman

We direct the Secretary of the Student Union to hold the election for Racial Minority Senator as soon as possible in accordance with the Constitution.
Held by Associate Justices Julia Sferlazzo, Judah Marans, and Matt Kriegsman, and Chief Justice Rachel Graham Kagan

We further direct the Student Union President to ensure the constitutional review process scheduled for next academic year address the issue of positions that may only be held or voted for by registered racial minority students.
Held by Associate Justices Judah Marans, and Matt Kriegsman, and Chief Justice Rachel Graham Kagan

Associate Justices Julia Sferlazzo, Judah Marans, and Matt Kriegsman find in favor of the Student Union.

Chief Justice Rachel Graham Kagan finds in part for the Petitioners, but agrees in the judgment of this Court.

Associate Justice Jordan Rothman finds in favor of the Petitioners, Gideon Klionsky and Ryan McElhaney.

Concurring Opinion by Associate Justice Julia Sferlazzo:

This case should not have been heard by the UJ. It should have been dismissed. While the RMS, position can help the community to engage in important and meaningful discussions about race, ethnicity, identity, and discrimination I do not believe the UJ provided the best forum. While in actual government the judicial branch does hear these types of cases, as an undergraduate student body, we do not have any superior knowledge or skills to offer. None of the justices have degrees in constitutional laws nor are we scholars of race and sociology. Thus, we cannot provide any more valid arguments or thoughts than the rest of the community. While we are an elected body, the issues that this case brought about far exceeded the scope of our expertise. The trial could not adequate gage student opinion or the needs of the community. A better way of dealing with the issue would have been a series of open forums and town hall meetings. Particularly because in a trial there is always a winner and loser. In the context of this issue, there is no clear, winner, or loser. In issues such as these, we should not be on two sides of a debate. Rather, we should be engaging in discussions so that we can move forward as a collective and unified group. A trial does not, and did not, provide enough room for meaningful discussions growth, learning, or solutions. Furthermore, the much larger problem associated with the trial was not addressed. Clearly, the Brandeis community is in need of some sort of changes and discussions about race in general. There are institutional problems that must be addressed that go beyond the position of racial minority senator.
I would love to attend a school in which there was not a need for a racial minority senator. However, I do not go to such a school. Furthermore, I do not have the power or knowledge to perceive when the need for the position will no longer exist. The position should only be removed or changed when the constituencies of those positions feel they no longer need or want the positions to exist. It is not my place to make that decision. Thus, I believe the position should continue to exist as it currently does.
I would urge both the upcoming student union government, as well as the administration to address these issues in the coming years. The constitutional review in the upcoming academic year would provide an important opportunity to engage in such discussions. I hope that these open forums will happen as a joint venture between the union government and the administration. Furthermore, in the trial it became quite clear that racial minority students felt the position was important. Thus, forums next year should not only focus on if the positions are discriminatory or necessary, but why racial minority students feel they are not well represented by the union. If, in future years, there is a decision to change these elected positions, it should be made in conjunction with real solutions for addressing the issues of race and the needs of racial minority students on this campus. To simply remove or change the position without finding a better solution would be very damaging to the Brandeis community as a whole and exacerbate racial issues on campus.

Associate Justice Julia Sferlazzo

Concurring Opinion by Associate Justice Judah Marans:

This case raises some fascinating and complicated issues regarding jurisprudential theory as it pertains to the interplay between two potentially competing judicial bodies in a school environment. The two bodies in question – the University Board on Student Conduct (UBSC) and the Student Union Judiciary (UJ) – were each designed to oversee a unique set of issues. The UBSC is “a student, faculty and staff panel that hears select cases of alleged student misconduct,” such as, for instance, allegations of discrimination, and was created by official University policy. The UJ is a body consisting only of students that resolves non-disciplinary issues in the Student Union government, such as, for instance, questionable legislation passed by Student Union Senate, and was created by students; it is independent from university administrative matters. The UJ is charged with interpreting the Student Union Constitution, and the UBSC generally rules on alleged violations of the Rights and Responsibilities handbook.

The petitioners challenge the Constitutional validity of the Student Union government positions of Senator for Racial Minorities and Racial Minority Finance Board Member. They allege that the existence of these positions is a form of reverse discrimination and thus violates University policy prohibiting racial discrimination. The petitioners quote section 7.4 of Rights and Responsibilities, which states that conduct is discriminatory when it “has the purpose or effect of unreasonably interfering with a person’s education… [or] participation in extracurricular activities and student organizations.” Because they cannot run for or vote in these elections since they are not registered as racial minorities, they claim that these positions unreasonably and discriminatorily interfere with their participation in the Student Union government.

It appears at first glance that to rule on this claim is out of our jurisdiction. The UBSC, and not the UJ, generally deals with these kinds of claims of violation of University policy. However, art. I, § 3 of the Constitution throws the jurisdictional distinction between these two bodies into disarray. It reads: “This Constitution shall be enacted in accordance with all… University policies…” Therefore if a Student Union matter violates University policy, it can be seen as unconstitutional. In this sense the UJ has the indirect authority to effectively rule on Student Union matters that relate to broader University policy. Accordingly, if the discrimination referred to in Rights and Responsibilities encompasses reverse discrimination, then the positions in question are indeed unconstitutional.

The petitioners are thus asking us to not just reference the discrimination clause in Rights and Responsibilities; they are asking us to take a bold step in actively defining it. They are not just asking us to incorporate a basic and clear-cut rule of University policy and through the vehicle of art. I, § 3 apply it to student union matters; they are asking us to interpret a crucial and complex legal term and claim jurisdiction to change a big part of student life. I would be willing to do the formers and not the latters. The issue of reverse discrimination is one of the great Constitutional issues of our time – in fact on the very day of our trial the Supreme Court heard a landmark case about this issue, in which it, the most supreme judicial body in this country, is going to define something that we, a group of peer-elected undergraduate students, was asked to define – and it is something that I am hesitant to attempt to do here. To define the scope and application of reverse discrimination here is a serious matter, and even though we have the authority to take part in such an undertaking, I will not exercise that authority because I simply do not feel qualified to do so. One of the witnesses at the trial asked this court to admit its limitations, and I hereby do. I do not believe that we necessarily lack the understanding or authority needed to be able to issue a finding such as Chief Justice Kagan’s or to actively rule on the matter as Justice Rothman did, but I acknowledge that it is, I believe, prudent to limit ourselves by refraining from doing either of those.

Indeed one of the fascinating things about the judiciary branch is the concept of judicial self-restraint. It has the ability, within certain limits, to determine its own level of influence. While we do have the jurisdiction to hear this case, whether or not we will act on it is another matter. Even though we do have the authority to issue a statement on the Constitutionality of the positions in question, I will not join Justice Kagan in so doing. And even though we do have the authority to issue a ruling either upholding or dismantling the position, I will not join Justice Rothman in his ruling. But I emphasize that I do so due to an exercise of caution, and not as a result of an analysis of the positions themselves. This court unanimously agrees that we have authority to issue each of the opinions that we published; I dissent in that actually doing so is not the most proper and effective way to deal with this case. As such I am exercising judicial self-restraint.

It really is fascinating that the judiciary branch can (and here actually wanted to, and in fact even requested to) hear arguments on whether or not it should be considering the very case that it decided to give itself chance to consider. To be sure, prior to the trial we even informed counsel that one of the legal issues we wanted discussed was how much judicial-restraint, or lack thereof, we should exhibit. We asked counsel to discuss “the limitations of the UJ’s authority after hearing this case.” And I find that, as the respondent argued, we should limit ourselves significantly.

I did personally agree with our decision to grant certiorari because I believe – even in the face of pressure from an emergency Senate resolution, influential Student Union officials, community leaders, and others alike, to dismiss the case – that the voice of the petitioners deserves the chance to be heard in our adversarial system of justice. While it is true, as Justice Julia Sferlazzo points out, that none of us “have degrees in constitutional laws nor are we scholars of race and sociology,” then let the respondents convince us of that. When on the fence between deciding to hear or to not hear a case, I believe it is important to err on the side of not ignoring or quieting the voice of the petitioners. As discussed above, one of the brilliant things about the judiciary system is that we can grant certiorari to in part hear arguments on whether or not we should even be ruling on the case we decided to hear.

We should have heard the case. But that does not mean however that I cannot admit, after hearing the case, that I am not qualified to, or that I do not believe it is fitting to, rule on the Constitutionality of the positions in question. It is true that the UBSC has no jurisdiction to hear this case. We are the ones who do. But just because we may make a decision about these positions does not mean that we have to. I dissent from Justice Kagan’s opinion in that I do not partake, due to an exercise of judicial self-restraint, in the finding that the positions are unconstitutional. And I clearly dissent from Justice Rothman’s decision to suspend the races for these positions. I concur with Justice Kagan (and Justice Sferlazzo) that we should choose “to respect the official amendment process and the constitutional review procedure that is slated to occur next academic year,” but without doing anything more, including issuing a verdict, as Justice Kagan does, that seems to be a purely theoretical illegality.

In addition, I am concerned that by stating that the positions of Senator for Racial Minorities and Racial Minority Finance Board Member are unconstitutional but without ordering a consequent revision, this court potentially makes itself vulnerable by lessening the primacy of its findings. If the Constitutional review process ultimately decides, by keeping as they stand now the relevant parts of the Constitution, that these positions actually are Constitutional, then that process will be effectively overruling that finding. Thus its publication can weaken the court’s authority by essentially stating that, although we have the prerogative to determine constitutionality of such matters, we do not necessarily have the ultimate authority to do so.

I must emphasize that this is not to say that I either agree or disagree with Justice Kagan’s finding that to allow “any student, regardless of race, to run for these positions… would effectively address the contradiction that currently exists,” or that I agree or disagree with the ultimate validity of Justice Rothman’s ruling. It means that I am exercising judicial self-restraint and will do nothing – either take action or even issue such a statement on the Constitutionality of the positions – other than allow the democratic system to follow its natural course of action. That the judiciary branch has the option to do such a thing is one of its remarkable aspects, and I believe that I am appropriately applying that judicial option.

This does not mean that the trial was a waste of time; it means that, by granting certiorari, we allowed a legitimate intellectual tug-of-war to take place, and that I am in effect ruling in favor of the respondent, as opposed to not ruling at all, in that I was persuaded by the Student Union’s push for us to let the issue resolve itself through a venue other than the UJ. (As such it is irrelevant to analyze any issues with the Senator for Racial Minorities and Racial Minority Finance Board Member regarding potential discrimination. The merits of these positions have no effect on my legal view of this case.)

There is another option, other than relying on the amendment process, to be considered. The Student Union President can see to it that the student body and the administration can team up to create a committee to deal with this issue. That would set a great precedent of an instance of collaboration and balance, sorting out the complicated issues regarding jurisprudential theory discussed above vis-à-vis this particular case.

As such, I concur with the decision to not dismantle the positions and to not suspend the races for their election. However I do so, and I believe that we should not express a finding on the legality of the positions in question, not based on the merits themselves of these positions but instead out of an exercise of caution. As such, although I concur in our judgment to not take action, my view of how it is most proper to exercise our judicial authority here differs from that expressed by each of the justices who did not sign on to this opinion. Justice Kriegsman and I stand in the majority with Justice Sferlazzo in finding for the Student Union.

On a personal note, I feel compelled to say that witnessing the honesty, expressiveness, and courage of both parties to this case was moving. I would also like to say that working with my colleagues on the court this past year has been an invigorating and gratifying experience that I have never before had.

Associate Justice Judah Marans

Joined by: Associate Justice Matt Kriegsman

Opinion Dissenting in Part, Concurring in Judgment by Chief Justice Rachel Graham Kagan:

The Petitioners in this case, Gideon Klionsky and Ryan McElhaney, presented many questions and arguments to this Court that I believe have a great deal of merit. Though many of my fellow Justices have declined to respond to these substantive issues—which is wholly within their rights—I continue to believe that it is the role of this Court to address them directly.

I

Many questions have arisen about the Union Judiciary’s authority to hear a case that in any way references University policy as laid out in Rights and Responsibilities. Pursuant to Article V, Section 1 of the Student Union Constitution, the Union Judiciary “shall have jurisdiction in disagreements…between the Union and a member of the Union, on the constitutionality of any Union Government legislation, decision, or action, [and] on any and all other questions of constitutionality within the Union.” However, while the Student Union Constitution governs the functioning of the Union and all student clubs, unlike the United States Constitution, it is nowhere near the highest authority that these bodies must submit to.

The Constitution itself acknowledges its own limitations in its first Article, entitled “Supremacy.” Section 3 explains, “This Constitution shall be enacted in accordance with all federal, state, and local laws, and University policies, but the Union Government shall not be responsible for the enforcement of such laws and policies.” These are the higher authorities under which the Student Union Constitution exists and is ultimately subsidiary to. This clause also absolves the Student Union of personal responsibility if any of these higher policies are unknowingly violated.

However I believe that Article I, Section 3 does not preclude this Court from examining certain constitutional issues with reference to these higher policies. As the Respondents pointed out, the University Board of Student Conduct (UBSC) is solely responsible for ruling on violations of Rights and Responsibilities. We have not sought to usurp that high undertaking, nor do I believe we have. Instead we have used our understanding of University policy to address a Constitutional question.

The Respondents suggested that Mr. Klionsky and Mr. McElhaney might have brought their case before the UBSC to seek relief, but this court disagrees. As Jess Kent, a member of the UBSC explained, that body provides a mechanism by which the petitioners could seek redress from an individual or group of individuals, not an organization or the Constitution itself. Nor is the UBSC able to address any issues of constitutionality. Because UBSC cases are brought against individuals, the only possible sanctions, as I understand them, are disciplinary ones. If Mr. Klionsky and Mr. McElhaney had brought a case before the UBSC and the individuals had been found responsible for a violation, their personal and academic records might have been compromised and the reason for the case itself—whether or not the positions reserved for racial minority students are constitutional—would remained unaddressed. To the best of my knowledge no mechanism other than the UJ currently exists within this university by which students may challenge a portion of the Constitution, despite the fact that that document is clearly subordinate to University policy. Therefore, I believe that we have the authority to hear and decide on this case.

II

The core issue of this case is one very difficult to discuss and address in any adequate manner. Racial issues are always delicate and in some ways they become even more sensitive on the Brandeis campus. Here such discussions must take place in the atmosphere of tension between our commitment to social justice or inspiring takeover of Ford Hall and the racist incidents—from The Justice to Gravity Magazine—that have too often occurred in recent years.

By all accounts this Court has heard, the racial minority community regularly feels excluded from certain parts of campus life. At some point in the last 20 years (the date itself has been contested and many different reports have been made to this Court) the positions of Senator and F-Board Member for Racial Minority Students were created to give greater voice to minority concerns and opinions. These positions, particularly it seems the Racial Minority Senator (RMS) with its potential for concentrated advocacy, are truly valued in the racial minority community. Before I give my opinion on the constitutionality of the two positions in question, let me first say that I believe very strongly that there is a compelling interest in the continued existence of these two positions.

The case at hand challenges these positions as being discriminatory to students not registered as racial minorities in two ways: such students may neither run for either of these positions, nor vote in either of these elections.

The Petitioners contend that these positions are discriminatory under Section 7.4 of Rights and Responsibilities. Therefore, they allege, a constitutional contradiction emerges between the positions themselves and the supremacy clause (Article I, Section 3), which places the Constitution in a subordinate role to the University policies.

I do not believe that it is discriminatory under Rights and Responsibilities’ Section 7.4 to deny a student the right to vote for the positions of RMS and RM F-Board Member. That section states that conduct may be regarded as discriminatory when it “adversely affects a person’s employment or educational opportunities… [including] participation in extracurricular activities and student organizations.” I think that the right to vote in this particular race does not rise to the level of interfering with Mr. Klionsky or Mr. McElhaney’s “participation in extracurricular activities and student organizations.”

However, I do believe that the prohibition against a non-racial minority running for one of these positions is in conflict with this section of Rights and Responsibilities. While Mr. Klionsky may run for any of five other Senate positions open to him, as many have pointed out to this Court, the RMS position is different than any other. A student wishing to seriously engage on race issues with the student body, including but not limited to the racial minority community, or the administration, would be able speak with special authority on such issues if elected by the racial minority community alone. More than any other person on campus, the RMS can be said to speak for that entire community, not just specific sections or segments.

I hasten to remind the community that the opportunity to run does not in any way mean that a student who is not a racial minority can win without over 50% of the votes from the racial minority community. Thus allowing any Brandeis undergraduate or TYP student to run would only serve to give the racial minority community more choices about who they believed could best represent them.

The Respondent argued during its case that no change to either position is needed because any student, regardless of their actual race, may without challenge register as a racial minority student. Such an incident has even happened in the recent past. This in fact is one of the principle reasons why I feel compelled to decide as I have. Essentially this line of reasoning suggests that because a loophole exists that any student may exploit, the rule is not bad. If anything, this line of reasoning shows that the racial minority community could already face an election where one of the candidates is racially Caucasian and merely lied in order to be classified as a racial minority.

I hope that the Student Union President will bring these concerns to the University Administration and request an objective investigation of these claims. Under Section 7 of Rights and Responsibilities it states, “It is the University’s responsibility to help prevent harassment and discrimination from occurring, to pursue concerns of which it is aware, to objectively investigate concerns, and to take immediate and appropriate action to remedy issues of harassment and discrimination.” Now that students have raised these concerns it is the University’s self-appointed duty to respond and the Student Union’s responsibility to pursue an answer.

For the reasons enumerated above I hope that the Student Union will choose to advocate a position allowing any student, regardless of race, to run for these positions while keeping the voting closed only to those students registered as racial minorities. I believe that such action would effectively address the contradiction that currently exists.

Regardless of the Petitioners’ suggestion that this Court has the ability to strike down a portion of the Constitution, I have always wanted to respect the official amendment process and the constitutional review procedure that is slated to occur next academic year. However, I hope the Student Union will pursue measures necessary to bring these positions in line with the rest of the Constitution and the University’s Rights and Responsibilities. In the meantime the election for RMS should be held as soon as possible.

Therefore I find for the Petitioners, Gideon Klionsky and Ryan McElhaney. In this holding I dissent in part, though concur in judgment with the majority of the Court.

I sincerely hope the Student Union will go farther than this Court has mandated.

Respectfully,

Chief Justice Rachel Graham Kagan

Dissenting Opinion by Associate Justice Jordan Rothman:

Although I agree with my fellow Justices that this court had the authority to hear the recent case before the Union Judiciary, I have different opinions about the hearing than the majority of Justice on the UJ. I therefore would like to humbly submit this dissenting opinion in order to relate these beliefs and fully convey the reasoning behind my dissent in the case Klionsky and McElhaney vs. Student Union

I. I would first like to state that I approached this case without any biases or conflict of interests. Although I may have made public statements as to my opinions about race issues, I have never publicly or privately ruminated over the Racial Minority Senator position. I, like my fellow Justices, only brought my ideological beliefs, lived experiences, and other expertise to trial, and it is upon this background and the evidence presented in court that I based my reasoning in this case.

II. I would first like to agree with my fellow Justices about the fact that we had the authority and standing to hear this recent case. The UJ remains the only effective body that Klionsky and McElhaney could have utilized to seek redress. According to Article VI of the Student Union constitution, we have purview “Between the Union and a member of the Union. On the constitutionality of any Union Government legislation, decision, or action. On any and all other questions of constitutionality within the Union (emphasis added).” The claimants in this trial could not go to the University Board of Student Conduct because there they could not sue the Student Union as a whole, but merely individuals within the institution. Furthermore, because Article I of the Student Union Constitution states “this Constitution shall be enacted in accordance with all federal, state, and local laws, and University policies,” we can certainly take these rules (including Rights and Responsibilities) into account when making our judgments.
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III Perhaps the main difference in opinion between myself and my Brothers and Sisters on the court is in interpreting Rights and Responsibilities. Article 7 Section 4 of that document states, “harassment whether sexual or based on an individual’s protected class status (race, color)…is a form of discrimination and will not be tolerated. It is regarded as harassment when the conduct has the purpose or effect of unreasonably interfering with a person’s…participation in extracurricular activities and student organizations (emphasis added).” In my eyes, in order for the Racial Minority Senator position to be struck down it must do two things. One is that this position must be discriminatory as defined above and two is that the benefits of allowing possible aforementioned discrimination do not outweigh the costs. I believe that the RMS position violates both of these conditions for the following reasons.

A:  The RMS position is clearly discriminatory. For one, it is only accessible to members of the racial minority community, and in essence, bases its main qualifications for office not on the content of one’s character, but on the color of one’s skin. The exclusivity of the position certainly has the effect of “interfering” with one’s “participation in extracurricular activities” because, although a White student can run for other positions in the Union, the RMS position is not (for all intents and purposes) accessible to Caucasians. Furthermore, it seems that this position is also discriminatory because it gives minority students more opportunities to run for office than the rest of the undergraduate community. Whereas Klionsky and McElhaney could only run for 5 senate positions, RM students can run for 6, and this seems to constitute unequal treatment.

B:  But simply establishing that a position is discriminatory does not necessarily mean that it should be eliminated. The aforementioned position must also be demonstrated to be “unreasonable.” For a variety of reasons, I believe the RMS position to be unnecessary. For one, it has been said that without this position, minorities would never get a voice in the SU Senate. This does not seem to be the case, as 11 of the current senators, nearly half of that body, come from racial minority backgrounds. It was also said in court that this position allows a unique avenue for programming on racial minorities issues, and distinctly allows for advocacy on topics important to the racial minority community. This does not seem assured, as really anyone could register to run for the position, and even an affluent White student can be the RM Senator. Overall, it seems that there are many avenues for minorities to gain positions in the Student Union without this Senate seat, and the frameworks of the position (mainly the capacity for anyone to run for it) show the weakness of any argument conveying the unyielding capacity of this Senator to advocate for minority issues.

IV. I would also like to note that there were a lot of other issues brought up in this case that were irrelevant to the constitutional interpretations at issue. Other avenues that the Student Union could take to ameliorate any constitutional contradiction (i.e. amendments and constitutional review) did nothing to address the current constitutional problem at hand. Furthermore, the slippery slope argument that if you agree with an RM Senator, than we should have to create a slew of other positions like GLBT Senators, Conservative Senators, etc. did nothing more than show the apparent ridiculousness of the RMS position, without addressing statutory injustices. Additionally, in the end, the mammoth number of amicus briefs and personal testimony relating the importance of the RMS to racial minority students did little to argue against the fact that this position is discriminatory. These issues and a number of other arguments were not largely factored into my decision, as they were at best only tangentially related to the trial.

V. I also disagree with this court as to what the UJ should do to ameliorate the constitutional contradiction as illustrated by McElhaney and Klionsky’s case. I believe that two parts of the constitution contradict each other. Mainly, I assert that you cannot have a Racial Minority Senator and a requirement that all organizations act in a non-discriminatory fashion. The Student Union Constitution gives the UJ much power in resolving constitutional issues and Article IV Section 10 of that document states “The Union Judiciary shall have the power to specify any and all measures appropriate to the execution of its decisions (emphasis added).” I feel that the only way to be just to all parties involved in this case, and to all communities on campus, is to suspend the RMS position indefinitely until some other mechanism (like an amendment or constitutional review) can correct the constitutional contradiction. This would allow the community, through discussion and democracy, to decide how best to address this issue, and disallow a discriminatory action from continuing. It does not overstep the bounds of the UJ’s power, but merely ensures that others, with the proper authority, are allowed to address the issue while an injustice is not perpetrated in the meantime.

VI. Finally, I would like to say that it has been a pleasure to work with various individuals on this case, and with my colleagues throughout the year.

A. Ryan McElhaney ’10 presented an absolutely fantastic case, and dealt with the criticism and social pressure that his position might have generated with poise and grace. For this he deserves much respect and acknowledgement. I would also like to commend all of the other members of counsel, witnesses, and friends of the court who made this trial an enriching and productive affair. Without everyone’s help, the recent proceedings could never have been as civil and effective as they certainly were.

B. Additionally, I would like to thank former Associate Justice of the Student Union Judiciary Danielle E. Shmuely ’10, Chief Justice Rachel Graham Kagan ‘09 and my current Brothers and Sister on the court for a fantastic academic year. Working with all of you has been an amazing experience, as our interactions have been productive, fun, and enlightening. My colleagues are all bright, passionate, courteous, and completely dedicated to resolving some of our community’s toughest issues. I can think of no other students who could better serve the community than these Justices, and I am extremely proud to have been a member of this court.

Overall, I think any unequal opportunities and distinctions based on race are discriminatory, and therefore believe that the Racial Minority Senator position to be in violation of university policy. I think that reasoning otherwise is valid, but nevertheless desire to convey my dissent in the case Klionsky and McElhaney vs. Student Union.

Humbly Submitted

Jordan Rothman ‘09
Associate Justice, Student Union Judiciary

8 comments on “UJ Finds for Student Union!”

  1. Mike Says:

    I commend Justice Rothman for taking a principled stand on this issue. Despite the presumed unpopularity of his dissenting opinion, I find his decision made the most sense and was clearly based upon a solid reading of the constitution and Rights and Responsibilities. The best part of his opinion is that he actually did his job by offering a resolution to the constitutional conflict.

    I appreciate Chief Justice Kagan’s opinion, given that she also did her best to answer the constitutional conflict. I respect her for trying to interpret the constitution to the best of her ability, even if her interpretation was one I strongly disagreed with.

    Justice Sferlazzo’s opinion, on the other hand, failed to refer to any constitutional provision or even offer a logical interpretation of the constitutional question at hand. She failed at resolving the constitutional conflict, which was part of her job as a justice. At times, I found her “opinion” resembled a seventh grade essay about her feelings on race relations (i.e. very unprofessional).

    Justice Marans’ opinion also failed to settle the constitutional question brought up at trial. He claimed to exercise “judicial restraint”, yet really all he did was “cop out” and play this safe to avoid pissing people off (perhaps there was a political motivation here as well, given he is up for re-election as I write this comment!). He (and by extension Justice Kriegsman who signed onto Marans’ opinion) didn’t do their jobs, which was to interpret the law and issue an opinion based upon their interpretation. Instead, they shirked their responsibility for deciding this difficult constitutional question.

    We need justices who will not shirk their responsibilities and will do the difficult job of settling questions through constitutional interpretation. If a justice can’t do this, then they should not run for this job.

  2. Carrie Says:

    Generally speaking, huzzah!

    Personal reflections to come later.

  3. Gideon Says:

    “Though many of my fellow Justices have declined to respond to these substantive issues…I continue to believe that it is the role of this Court to address them directly.”

    Well put, RGK. After all, we voted for justices so they could address issues directly rather than to pocket-veto them. Thank you for addressing the constitutional issues we raised, including whether the UJ was a possible venue for this hearing (in fact, it’s fairly clear that it’s the only venue for such a hearing in order to address the problems with the SUG Constitution, but those problems having been un-addressed, other venues may need to be investigated).

  4. Jason Paul Says:

    Hooray for the court, and also Hooray for Rachel Graham Kagan, who I am still honored was my ticket-mate in 2005. The fact is that, allowing all students to run for the position while narrowing the electorate, is in fact a better system. Much like on the Congressional district level. If you create a majority-minority district, and they want to Send Steve Cohen as in TN 9 [Memphis] , why can’t they send Steve Cohen. It is the same principal and gives minority students more choices. I am now jealous I didn’t come up with it.

  5. Alex Norris Says:

    I’m confused about two things in the opinions of the four justices who maintained that the UJ had the right to hear this case:
    1. How the UJ can be bound by the Constitution and also able to make changes to it.
    2. How they can maintain that there is no other way for students to bring up Constitutional concerns. Is there not a constitutional amendment process? Is that not more legitimate than asking the UJ to rule on the Constitution itself?

  6. Nikki Says:

    While I understand Justice Rothman argument, I would offer a word of caution on assuming that simply because a non-RMS senator is of a racial background he wishes to be the “voice” or the representative of the people of color on campus or should even have to be. Rothman states “For one, it has been said that without this position, minorities would never get a voice in the SU Senate. This does not seem to be the case, as 11 of the current senators, nearly half of that body, come from racial minority backgrounds.” Being the advocate of the minority community should be a choice, not an assumed role that is “pushed” on to just because happen to be the Black or Latino North Quad senator (for example), especially if didn’t run your campaign around those issues. Just because someone belongs to a certain group doesn’t mean they should be expected to that group’s representive. As much as he cautions the union not, Rothman seems to be making a lot of judgments about the roles people should occupy based on skin color as well.

  7. Judah Says:

    I generally do not post comments here, and especially when they regard Union Judiciary matters. But I feel compelled to respond to Mike’s comment in order to maintain integrity.

    I appreciate what you said. You seem to be an intelligent person and you make good points. Your reaction to the judicial-restraint philosophy is more than valid. Legal scholars have been debating its merits for a long time, and even Supreme Court decisions will often be criticized for what is perceived to be either too much or too little judicial caution. I absolutely agree to disagree. Your difficulty with the intellectual merits of my view of the case as Associate Justice can be a fascinating legal debate.

    What you said that hurt me was that my published opinion might have been politically motivated. If I was so concerned about issuing an opinion that would not upset people during election day in order to try to secure my reelection, then I would have finished my opinion before the polls opened. We released the opinions just when we finished to write them – at the end of the day, when the polls were almost closed! Come on!

    I ran for the UJ, as opposed to for another position, precisely because I didn’t want to deal with “political” issues. I love my position on the UJ because for me it is an intellectual pursuit. I want to be a leader for the Brandeis community in the capacity of someone who strives to look at situations from a legal and objective (as objective as I can be) perspective. I love this position because I can be a leader whose job it is to exercise the skill of separating the political from the intellectual, the social drama from the unprejudiced merits.

    I can defend my judicial understanding of the case in this comment. But I believe that would be unprofessional and unnecessary. That would be me politically defending myself. My opinion itself does so in an academic matter. I encourage everyone to read each of the justice’s opinions. Mine articulates the reasoning for my decision, and it is more subtle and complex than it may seem. There are a few key sentences and paragraphs that you might (or might not) have thoroughly analyzed. If you disagree with my reasoning, then that is more than OK! Then let us engage in a pure intellectual debate on legal philosophy.

    I do not think that I was “copping out” in order to not “piss people off.” I have tried so, so hard to be as honest as I could be. I lost a lot of sleep thinking about this case and writing my opinion. In fact, I was in the minority in agreeing to hear the case. In the face of a significant amount of pressure I did do something unpopular because I thought it was the right thing to do. I write in my opinion: “I did personally agree with our decision to grant certiorari because I believe – even in the face of pressure from an emergency Senate resolution, influential Student Union officials, community leaders, and others alike, to dismiss the case – that the voice of the petitioners deserves the chance to be heard in our adversarial system of justice.”

    On another note, I found out this morning that I won the election, and am really looking forward to continuing to serve on the UJ next year.

    Sincerely,
    Judah

  8. Mike Says:

    Judah, I’m glad you responded. I’ll take your word for it that your decision wasn’t politically motivated. I’m pleased that you chose to hear this case, as it deserved that at the very least. But choosing to hear this case doesn’t at all make up for your inability to decide the constitutional question.

    This wasn’t a “political” issue…it was a legal issue concerning how we as a community are to interpret the conflict in our constitution. Its purpose was also to determine whether the rights of many students on this campus were being violated by their inability to participate in running and voting for the position.

    You are on the judiciary not to involve yourself in “intellectual pursuits”. You are there to interpret laws and make clear-cut decisions. You talk about being a leader for this community, yet you failed to lead in this case by in essence refusing to take a stand on whether the position violated rights or not.

    I read your opinion very clearly, and I believe we do have a very different opinion on the UJ’s appropriate involvement in constitutional questions. Your hands off approach is only allowing discrimination to perpetuate, and passing the discrimination problem off to others in the bogus constitutional review process is just plain irresponsible. Didn’t you get the memo that judges are supposed to protect the peoples rights from the mob of popular opinion? If all judges ruled the way you did, we would have legislatures across this country banning a woman’s right to choose among other cherished rights.

    None of this is to say you’re a bad person Judah. From your comment you seem like a nice guy. I feel that you just need to remember the purpose of a judicial system and why it’s crucial for judges to uphold their constitutional responsibilities, one of which is to settle constitutional questions. My advice: stop making this an intellectual pursuit and start thinking practically.