West Virginia University smears Jewish student in defending Muslim-prompted probe: free speech group

What started with a cafeteria worker's complaint about a Jewish student handing out an Alan Dershowitz book, "The Ten Big Anti-Israel Lies," threatens to become full-blown litigation between West Virginia University and the pro-Israel student as each demands the other correct and stop spreading purported falsehoods about the situation.

WVU general counsel Stephanie Taylor "respectfully" asked student Eliyahu Itkowitz's advocates at the Foundation for Individual Rights and Expression to "reconsider and correct" its claim that WVU investigated Itkowitz for passing out the book "and send corrections to any media outlets with which you shared these incomplete claims," in a letter WVU shared with Just the News.

WVU has "confirmed in writing" to Itkowitz's adviser that handing out the book is constitutional and allowed by university policy, according to Taylor. 

She said its investigation was limited to allegations of "following, recording, and confronting a specific individual – conduct which, if substantiated, could have reasonably constituted harassment regardless of the student’s viewpoints."

In the telling of the civil liberties group, that refers to cafeteria worker Hannah Harper's confrontation in January with Itkowitz, with Harper claiming Itkowitz had been banned from the dining hall for handing out the "anti-Muslim" book in December and Itkowitz recording Harper when she called campus police, who could find no evidence Itkowitz wasn't allowed there.

The university's response "ignores key facts in the case while cherry-picking several allegations that are willfully stripped of context," making it incorrect "both as to specific facts as well as the broader story," FIRE program counsel Jessie Appleby told Just the News.

"From presenting a distorted timeline" to portraying Itkowitz "filming his interactions with dining hall employees to protect against further false allegations as akin to stalking, WVU’s response needlessly maligns Itkowitz’s character," Appleby wrote in an email.

Asked whether the group was accusing WVU of defaming Itkowitz, a FIRE spokesperson said Taylor's letter "repeated the most damaging allegations previously made against Eli. Those allegations were already detailed in FIRE's letter, as well as why we believe them to be untrustworthy."

FIRE settlement for student suspended for off-campus 'meme rap' 

Litigating a single First Amendment case can be pricey before even considering potential settlement amounts. The University of Oregon spent around three quarters of a million, not including the past six months, defending against and recently settling one censorship lawsuit by a conservative professor – three-quarters of that on its own lawyers.

Chappaqua Central School District paid FIRE $70,000 through its insurer earlier this month to drop the civil liberties group's lawsuit on behalf of an unnamed "LGBTQ student" suspended by the New York district for "hate speech" – a "freestyle rap" he made at a friend's house, similar to the off-campus profane rant of a cheerleader the Supreme Court protected in 2021.

The settlement also binds the district's policy committee to "recommend review" of the hate-speech definition in the code of conduct this summer to reconcile it with Regulation 7025 on student freedom of speech. FIRE said it worked with the district to craft a SCOTUS-compliant First Amendment regulation after suing.

The LGBTQ student used the words "faggot" and "twink," which gay men can use as terms of endearment, in freestyle verses "purposefully mimicking" the style of "meme rap" by performing "over-the-top parodies" of rap's favorite subjects, FIRE said.

Unbeknownst to the student, his friend combined his verses with another person's verses that "contained violent imagery" and uploaded the combined song to SoundCloud, prompting three complaints but no disruption to the school, the lawsuit claimed.

'Overly simplified account' that mischaracterizes WVU notice of allegations

Itkowitz told Jewish News Syndicate he only started handing out the Dershowitz book "after passing repeated anti-Israel demonstrations by the Muslim Students Association on my way to class," but WVU’s Office of Student Rights and Responsibilities "responded to me with constant investigation and intimidation" for protesting no differently than MSA had done.

The complaint by Harper, the cafeteria worker, said she recognized Itkowitz because of MSA warnings, apparently referring to a social media blast that showed his picture, claimed he "verbally harassed our Muslim sisters" and told members to report such people to campus police if they felt "uncomfortable."

MSA took credit for an earlier WVU investigation of a pro-Israel counter-protester at its own demonstrations that, according to FIRE, only ended when the student graduated.

WVU's Taylor told FIRE's Appleby on Monday, "We value and respect" FIRE's First Amendment campus advocacy, and WVU is "committed to protecting expressive rights, even in difficult or contentious circumstances," but that FIRE gave an "overly simplified account that does not reflect the actual sequence of events or the University’s handling of the matter."

Her letter fleshes out allegations against Itkowitz that FIRE recounted in its letter to WVU, including that a hijab-wearing Sodexo employee – Harper – overheard Itkowitz tell a friend last fall that WVU lets "f—ing terrorists work here," though FIRE claimed Harper only asserted this in her second complaint in January.

Later that fall," Itkowitz coordinated with a local rabbi to distribute" the Dershowitz book as community service for an "unrelated underage drinking citation" and gave a copy to Harper. When he returned to the dining hall in January, she "mistakenly believed he was prohibited," told a manager, then repeatedly told a "visibly upset" Itkowitz to stop following and recording her.

WVU initiated a "formal investigation" after a "preliminary review" of Harper's subsequent "harassing conduct" report against Itkowitz, "a process consistent with best practices and aligned with what FIRE itself recommends," Taylor said.

A lengthy footnote contradicts "the implication in your letter" that WVU "immediately" issued a notice of allegations to Itkowitz, but Taylor acknowledged "there was a miscommunication from our former dining services vendor" to Itkowitz on his access to the cafeteria.

The university issued temporary "mutual no-contact orders" to both students, not just Itkowitz as FIRE implied, which are "supportive, non-punitive measures," Taylor said. WVU fully exonerated Itkowitz, "as the available evidence did not conclusively support a finding that the elements of harassment were met under the applicable standard."

The notice of allegations was not based on "merely a private conversation and handing out a book," as FIRE suggested, but alleged "conduct occurring over several months," Taylor said, adding in a footnote that FIRE mischaracterized the contents of the notice.

These included "statements made loudly enough to be overheard by others" – FIRE disputes any witnesses corroborated Harper's claims about what Itkowitz said – "the use of profanity directed at the employee, repeated filming despite objections, and a perception by the Sodexo employee that she was being targeted and followed due to her religion," Taylor said.

Given that FIRE acknowledged it "may not have access to the full record," it's troubling that the group made "public accusations – such as characterizing the University’s conduct as 'unlawful' – without first requesting or reviewing additional context or documentation," she wrote.