The Volokh Conspiracy
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Lawsuit Over UC Berkeley's Alleged Toleration of Anti-Semitism …
can go forward in part, a federal trial judge concludes.
From yesterday's decision by Judge James Donato in Louis D. Brandeis Center, Inc. v. Regents of the Univ. of Cal.:
The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors. [See below for more details. -EV] The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish. The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.
Taken as a whole, the FAC plausibly alleges disparate treatment with discriminatory intent and policy enforcement that is "not generally applicable." The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment. Consequently, Brandeis's claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.
It bears mention that the FAC repeatedly alleges that "Zionism is a central tenet of the Jewish faith." This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism. If so, a serious constitutional problem would arise. The Establishment Clause properly forbids the federal courts from saying what the tenets of a religion are. See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020) ("The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of … faith and doctrine.'"). This proscription is particularly forceful when, as here, there is genuine disagreement on the matter.
Because the FAC as a whole plausibly alleges that Jewish students and professors were disparately treated because they are Jewish, the Court need not get into the issue now. The "Establishment Clause will be no worse for not having been so tested." It may be that the Court may properly determine whether Zionism is a sincerely held religious belief for some individuals, as circumstances might warrant, but the Court will not determine if it is a central tenet of Judaism.
The 42 U.S.C. § 1981 claim is dismissed. The gist of this claim is that members of the plaintiff organizations who are legal academics cannot contract with certain Berkeley student organizations that adopted a bylaw barring invitations to individuals espousing Zionist beliefs.
Brandeis does not dispute it must show standing to challenge the bylaw in connection with the Section 1981 claim. The complaint does not allege that any academic member has sought to contract with the organizations since adoption of the bylaw, been turned away on account of the bylaw, or has otherwise been put at a contractual disadvantage by the bylaw. The conclusory allegation that the academics "would welcome the opportunity to speak" is not enough. {Allegations that two academic members spoke to unnamed Berkeley student groups in the past does not plausibly allege an injury in fact, because there is not a non-speculative basis for reasonably inferring those unnamed groups adopted the bylaw or the members would speak or attempt to speak at such groups in the future.} …
Here's an excerpt from parts of the Complaint cited by the court (following the sentence "The FAC alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors"):
[3.] On February 26, 2024, a violent student mob succeeded in executing its plan to forcibly shut down a speaking engagement organized by Jewish students at Berkeley. Jewish students who had assembled to hear the speaker, and the speaker himself, were evacuated by police, who were unable to prevent the mob from smashing through glass windows, forcing their way into the event, terrorizing Jewish students, and physically assaulting them. Students screamed for help to the police. The police yelled to each other for help. Both the students and the police were overwhelmed. The mob's anti-Semitic motives were on full display, as when a rioter spat on a Jewish student and called him a "dirty Jew."
[4.] The organizers of the mob—Bears for Palestine, an officially recognized student organization—made no secret of their plans or intent. They openly advertised their plan to shut down the event. UC Berkeley was aware of their plans. Yet, not only did UC Berkeley fail to stop the mob from terrorizing and assaulting Jews, it has failed to take any meaningful action against Bears for Palestine since the riot. To this day, Bears for Palestine and other groups on campus continue to target and intimidate Jewish students, forcing them to conceal their Jewish identity, seclude themselves in their dorm rooms, or take circuitous routes around campus to avoid harassment.
[5.] Starting in early February, Sather Gate, a landmark that leads to the center of the UC Berkeley campus, has been the site of a blockade organized by a registered student organization. The blockade has closed down the middle of the gate completely to foot traffic, leaving only two smaller side paths available to the University at large. Although this blockade impedes all persons equally, Jewish students who have tried to pass have been singled out for harassment. They have been spat at, called ethnic slurs (including "dirty Zionist"), filmed as they pass, and even followed by the organizers of the blockade. Students have been singled out for such abuse if the protestors knew them to be Jewish or if they were wearing outward signs of their Jewish identity, such as Stars of David or yarmulkes. As a result of this intimidation, Jewish students have often stayed home or have been forced to take alternate routes to avoid Sather Gate. The blockade's effects have also been keenly felt by the disabled community. One Jewish graduate student who is blind repeatedly collided with protestors and nearly fell on multiple occasions while trying to make his way through the blockade. The University was repeatedly apprised that Jewish students are being harassed as a result of the blockade and that the disabled community's right to equal access was being denied. While the University committed to ending the harassment and ensure freedom of access through the gate, these issues continue.
[6.] Unfortunately, the harassment and obstruction that began at Sather Gate has spread. As of the filing of this Amended Complaint, student groups have occupied the area outside of Sproul Hall, an administration building on campus that houses the Registrar, Financial Aid, and other offices to which students require access. Because of the occupation, Jewish students report being unable to access the building and being harassed when they try to do so. One Jewish student was physically assaulted when he was observing the occupation. Another Jewish student who was wearing a Star of David was surrounded by masked protestors, who restricted his movement while telling him that "Zionists can go back to Europe." Despite being informed of the harassment, the University has once again failed to act. Indeed, the occupation has grown from 50 tents as of the week of April 21 to up to at least 175 at the time of this filing.
[7.] The post-October 7 eruption of anti-Semitic harassment was not a new development that caught the University off guard. To the contrary, anti-Semitism has been allowed to fester and grow on campus because UC Berkeley has chosen for years to ignore it. In 2016, a Brandeis University research study on anti-Semitism on college campuses found that over a third of students surveyed at UC Berkeley and three other University of California (UC) campuses perceived a hostile environment toward Jews on their campuses. And in 2017, Berkeley ranked fifth in a Jewish publication's list of the 40 worst colleges for Jewish students in the United States and Canada. That study noted that "Berkeley has long been accused of fostering an environment that can be unfriendly to Jews and Zionists." …
[9.] These bylaws—or any other mechanism—that treat Zionists in an inferior manner to non-Zionists are a guise for anti-Semitism. This reality is evident from the post-October 7 harassment of Jews at UC Berkely, where the harassers no longer hide their anti-Jewish animus behind the "it's just anti-Zionism" pretext. Jewish students who want to participate in the organizations that adopted the Exclusionary Bylaw have been constructively expelled or barred from joining. And legal scholars who are ready, able, and willing to speak to these organizations are prohibited from even competing for the opportunity to do so.
[10.] Although the Exclusionary Bylaw purports to target "Zionists," the message, as accurately perceived by Jewish students, is clear: Jews are not welcome. Moreover, while UC Berkeley administrators have publicly acknowledged the fundamentally anti-Semitic nature of the Exclusionary Bylaw, they have continually failed to take action to address it. To this day, student organizations on campus openly exclude Jews under the guise of excluding "Zionists."
[11.] The same anti-Semitic sentiment that animates the Exclusionary Bylaw recently spread beyond the walls of the University and invaded the home of the Dean of Berkeley Law, Erwin Chemerinsky. Less than a month ago, students from Law Students for Justice in Palestine—the same group responsible for drafting the Exclusionary Bylaw—disrupted a dinner Dean Chemerinsky was hosting to recognize and celebrate graduating students. The protestors refused to leave when asked to do so, violating not only University policy but numerous state trespass laws in the process.
[12.] Law Students for Justice in Palestine had planned their protest in advance, making no effort to disguise the anti-Semitic motives when they announced their protest on Instagram. There, they posted the e-mail invitation that Dean Chemerinsky had sent to students together with the dates the dinners would occur and a sign-up link to attend.. The same post featured a gruesome caricature of Dean Chemerinsky holding a blood-soaked knife and fork with the caption, "No Dinner With Zionist Chem While Gaza Starves." The image invoked the ancient anti-Semitic "blood libel" that Jews use the blood of non-Jewish children for ritual purposes. As Dean Chemerinsky acknowledged in response to the image, "I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish." {Law Students for Justice in Palestine ultimately took down the blood-stained caricature, replacing it with an identical image of Dean Chemerinsky, this time holding clean utensils.} As a result of this disruption, Jewish students did not attend additional dinners that Dean Chemerinsky hosted.
[13.] The unmistakable anti-Semitism animating this "anti-Zionist" protest was recognized by the University as well. Defendant Drake, issuing an official statement, recognized that "[t]he individuals that targeted [Dean Chemerinsky's dinner] did so simply because it was hosted by a dean who is Jewish," and explained that the protestors' actions "were antisemitic, threatening, and do not reflect the values of this university." Josh Kraushaar (@JoshKraushaar), X (Apr.11, 2024), https://x.com/JoshKraushaar/status/1778396582385258740. Rich Leib, Chair of the University of California Board of Regents echoed the same statement and called the students' actions "deplorable." Jaweed Kaleem, 'Please leave!' A Jewish UC Berkeley dean confronts pro- Palestinian activist at his home, LOS ANGELES TIMES (Apr. 10, 2024), https://www.latimes.com/california/story/2024-04-10/uc-berkeley-law-school-dean-clashes-with- pro-palestinian-activists ("The individuals that targeted this event did so simply because it was hosted by a dean who is Jewish. These actions were antisemitic, threatening, and do not reflect the values of this university.").
[14.] As this incident and others make clear, the student groups on campus responsible for this harassment equate Zionists with Jews or, at the very least, do not differentiate between the two. They single out Jewish students and faculty for harassment (even though non-Jews who associate with Jews may also be Zionists), and they target events organized by Jews or Jewish organizations. As the gruesome caricature of "Zionist Chem" made clear, they targeted him not because of his views on the policies of Israel—he is a frequent critic of the current Israeli government and avowed supporter of Palestinian rights. Rather, they targeted him because he is a Jew. Indeed, Law Students for Justice in Palestine—an organizing force behind the protests on campus—offers a "Tool Kit" to its supporters that equates Zionists with Jews, defining Zionism as "[t]he claim that all people worldwide who identify themselves as Jewish belong to a 'Jewish nation … and that this 'nation' has an inherent right to a 'Jewish state' in Palestine."
[15.] The University has acknowledged that what is occurring on campus violates school policy. It has acknowledged that the incursion onto a Jewish faculty member's property violated the student code of conduct. It has admitted that the blockade of Sather Gate violated the school's time, place, and manner restrictions on campus free speech. It has acknowledged that the February 26 rioters targeted Jews, despite the fact that the University's original statement in response to the riot omitted any reference to anti-Semitism. Dean Chemerinsky has even implicitly acknowledged that the Exclusionary Bylaw is anti-Semitic, given his recognition that Zionism is an integral part of Jewish identity for more than 90% of the Jewish students on campus.
[18.] Specific instances demonstrate that Israelis are also victims of the current hate on campus. A group of Israelis who came to observe the Sproul Hall occupation were harassed and physically assaulted. The protestors at the occupation told the Israelis that they should "Go back to Europe!," that "Zionists [should stay] out of Berkeley!" and "We will find the Zionists and kick them out of our classes!" Making clear that they equate Israelis with Jews (as well as Zionists), the protestors also called the Israeli students "Talmudic devils." One of the protestors approached one of the Israeli observers who was holding an Israeli flag, grabbed the flag, and then punched the observer three times in the head. The observer received medical care for his injuries.
[19.] A visiting Israeli professor had her invitation to return and teach at the school revoked given "everything that's happening on campus." The professor indicated that she had heard there was "enormous pressure from the faculty, especially from the furious master's degree students, not to bring anybody from Israel and not to hold courses dealing with Israel." …
