The Volokh Conspiracy
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Jewish Professor's and Students' Lawsuit Against USC Dismissed
The plaintiffs just withdrew the case, though their counsel reports that they plan to refile in the next two weeks with additional allegations. For now, I thought I'd post about the March opinion in the case by Judge Fernando L. Aenlle-Rocha, in Doe Jewish USC Faculty Member 2004 v. USC, which dismissed an earlier version of the Complaint:
Plaintiffs … bring claims relating to protests on Defendant's campus … regarding the Israel-Hamas war. Plaintiffs … allege Defemdant "invited, encouraged, aided, abetted, permitted, allowed, and subsequently appeased, enabled and negotiated with violent, sword and other weapon-wielding, Jew-hating Hamas-supporting campus terrorists antisemites … who infiltrated and overtook its Los Angeles campus … setting up tents and occupying [Defendant's] property under the [Defendant]'s watchful eyes."
Plaintiff Faculty Member brings this action in an "individual capacity as a Jewish USC Professor who suffered damages and harm as a result of [Defendant]'s conduct and as a representative on behalf of all other similarly situated Jewish Professors." Plaintiff Student sues "individually and on behalf of all others similarly situated."
The court rejected all of plaintiffs' claims:
Violation of Bane Act (Cal. Civ. Code § 52.1)[:] Plaintiffs allege Defendant violated the Bane Act by interfering with their right to practice freely their religion while on the USC campus. The Bane Act provides a civil cause of action against anyone who "interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of [California][.]"
Further, the plaintiff "must show the defendant interfered with or attempted to interfere with the plaintiff's legal right by threatening or committing violent acts. Speech is insufficient to establish the requisite threat unless it includes a threat of violence." Additionally, a defendant must have the "specific intent to violate a constitutional right." …
Here, Plaintiffs do not allege plausibly a violation of the Bane Act, as they do not allege Defendant threatened, intimidated, or coerced Plaintiffs into believing that, if Plaintiffs practiced their religion on the USC campus, Defendant would commit violence against them. To the contrary, Plaintiffs allege the protestors threatened them and Plaintiffs reasonably believed the protestors would commit violence against Plaintiffs if Plaintiffs exercised their faith.
While Plaintiffs allege Defendant aided and abetted the protestors through various acts, these acts do not constitute plausibly threats, intimidation, or coercion from which Plaintiffs could believe reasonably Defendant would commit violence against Plaintiffs. Specifically, first, Defendant's act of permitting protestors on campus cannot plausibly be considered a threat that Defendant would commit violence against Plaintiffs if they practiced their faith on campus. Second, Defendant's act of telling Plaintiffs "to work remotely from home, or remain in their offices or dorms for their 'own safety'" cannot plausibly be considered a threat that Defendant would commit violence against Plaintiffs if they did not work remotely from home—indeed, the opposite appears true, i.e., Defendant was attempting to protect Plaintiffs from potential harm.
Third, Defendant's act of inviting the valedictorian to give a graduation speech cannot plausibly be considered a threat that Defendant would commit violence against Plaintiffs. [The allegation about the valedictorian, from the complaint, was that "The level or antisemitism rose to unprecedented levels in April 2024, when USC President Carole Folt announced the nomination of Muslim student Asna Tabbasum ('Tabassum') as the USC valedictorian. Defendant University knew or certainly should have known that Tabassum's social media was replete with anti-Israel propaganda and violent hate speech when an email was sent out by Provost Guzman to keep her as valedictorian yet not allow her to speak. That was the turning point that led to the creation of campus anti-Israel encampments and a level of open antisemitic vitriol that I have never previously experienced. Encampments calling for 'death to Israel, death to America' and even 'death to Jews' were growing in numbers and I could not get to my office without being accosted by protestors asking me 'Are you a Zionist'?? 'Do you support the Israeli death war machine???' I endured this for about three (3) weeks before deciding that I would not return to campus again until this came to an end. What is all the more disturbing is the number of faculty members who openly protest with the students and some even cancelling their final exams so that the students can protest daily." -EV]
Lastly, even assuming Defendant could be liable for an email sent by one of its professors, an email asking Plaintiff Student to participate in a protest cannot plausibly be considered a threat that Defendant would commit violence against Plaintiff Student. [This allegation apparently refers to this item from the complaint: "On April 17th, I received another email, this time from one of our own professors at the department of Physical Therapy. It asked everyone in the department to sign a petition to allow her to speak. It also attached a message from her to the students of USC and the same picture of her from the original newsletter. She stated in her letter that USC's provost had mis-treated her and didn't give her a complete answer on why they would not allow her to speak. The Provost did explain it was due to security and safety of the community. On April 18th, I received another email from the same professor. It read, 'USC Silent March for Asna. When USC silences Asna, they're silencing all of us. Show up in support of Asna and demand USC let her speak at commencement. Wear a hoodie and mask to symbolize the institutional silencing Asna is experiencing.'" -EV]
Additionally, Plaintiffs fail to state a Bane Act claim because they allege only in conclusory fashion that Defendant had the specific intent to prevent Plaintiffs from practicing freely their religion…. Plaintiffs allege no facts in support of their assertion.
While Plaintiffs allege certain acts by the protestors from which the court might be able to infer the protestors' intent, the court cannot infer Defendant's intent from the protestors' acts. Rather, Plaintiffs' allegations actually support Defendant did not have the requisite intent, as they suggest Defendant and the protestors had adverse interests. See FAC ¶¶ 26 (alleging the protestors were protesting Defendant's investments in Israel), 86 (alleging Defendant called the Los Angeles Police Department to remove the protestors' encampment)….
Violation of Unruh Act (Cal. Civ. Code §§ 51, 52)[:] The Unruh Act states in relevant part:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
Cal. Civ. Code § 51(b); see also id. § 52(a) ("Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense ….")….
Plaintiff Faculty Member's Unruh Act claim fails because Plaintiff Faculty Member is Defendant's employee and "the Unruh Act does not apply to an employer-employee relationship." …
Plaintiff Student alleges she and other Jewish students "were so fearful for their lives and safety that they could not appear in [USC]'s 'town square' or anywhere else on campus without being verbally or physically assaulted … Plaintiffs [and Jewish students] were touched without their consent and spat on by the Campus terrorists if they dared to cross into the Encampment." Plaintiff Student further alleges Defendant permitted this conduct to continue "for weeks on end before finally taking steps of remediation." Plaintiff Student, thus, alleges plausibly Defendant "aided or incited a denial of full and equal access" to one or more portions of the USC campus….
[But] Plaintiff Student does not allege plausibly Defendant specifically intended to deprive Plaintiff Student's right to equal accommodations because of Plaintiff Student's race, religion, or national origin…. As described regarding the Bane Act claim, Plaintiff Student cannot allege Defendant's intent based on the protestors' conduct. The court cannot reasonably infer "a substantial motivating reason for Defendant's conduct" was Plaintiff Student's race, religion, or national origin….
Violation of Ralph Act (Cal. Civ. Code § 51.7)[:] Under the Ralph Act, "[a]ll persons within [California] have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.["] …
Plaintiff Student alleges plausibly a "reasonable person, standing in [her] shoes" would have been intimidated and perceived a threat of violence. Plaintiffs' Ralph Act claims, however, ultimately fail for the same reasons discussed above regarding the Bane and Unruh Acts. Plaintiffs do not allege plausibly that a "substantial motivating reason" for Defendant's conduct was Plaintiffs' race or religion….
Tort Claims[:] Plaintiff Faculty Member's tort claims for negligence, assault, and battery are barred by the exclusivity provisions of the California Workers' Compensation Act….
"[W]ithout any physical harm alleged, the Student Plaintiff's negligence claim [] is actually a claim for negligent infliction of emotional distress." … Plaintiff Student, thus, cannot recover any damages on her negligence claim….
Breach of Contract[:] Defendant argues Plaintiff Student has failed to allege "at least three required elements" of a breach of contract claim: the contract; breach; and result damages. Defendant argues a contract's terms must be "sufficiently definite" and Plaintiff Student "merely asserts that she had a contract with the University requiring a 'safe and sane environment' for study." Defendant further contends Plaintiff Student does not allege damages. Plaintiff Student does not respond to these arguments and, thus, concedes them….
Battery[:] Plaintiff Student does not allege harmful or offensive contact. Plaintiff Student does not respond to this argument and, thus, concedes it….
Assault[:] … Plaintiff Student alleges she believed the protestors "were about to touch [her] in a harmful or offensive manner and in fact threatened to touch [her] in a harmful manner[.]" Plaintiff Student, however, does not allege Defendant "acted with intent to cause harmful or offensive contact, or threatened to touch [her] in a harmful or offensive manner." Rather, Defendant allegedly "encouraged" the protestors' conduct. This is insufficient.
Plaintiff Student does not allege an aiding and abetting theory, and, in any case, the allegations are insufficient to support such a theory because they do not demonstrate Defendant "gave substantial assistance or encouragement" to the protestors. Plaintiff Student alleges Defendant permitted the protestors to be on campus, she does not allege Defendant gave substantial assistance or encouragement to the protestors to assault Plaintiff Student.
Lastly, even were Plaintiff Student to allege an aiding and abetting theory, she alleges insufficiently the protestors assaulted her. She alleges she was threatened by the protestors' slogans and oral statements. This is insufficient, as "mere words, however threatening, will not amount to an assault." …
The court also rejected the plaintiffs' class action claims:
Defendant argues Plaintiffs "have made no attempt to plead the existence of any of the requirements for class certification, including that their claims are typical of the alleged class, that they are adequate representatives, that common issues exist, or that common issues predominate." Defendant further argues that, "to the extent that Plaintiffs purport to allege a class of all USC faculty and students who identify as Jewish, such a class would include countless individuals with no possible claim, including Jewish faculty and students who were not present on campus during the protests, who were not harmed by the protests, and, importantly, who supported or chose to participate in the protests."
Plaintiffs do not respond to these arguments and, thus, concede them….
The court therefore dismissed the claims, though it granted plaintiffs leave to amend some of their claims, and in particular to assert a negligent infliction of emotional distress claim (a claim that is quite narrowly defined under California law). Plaintiffs did file an amended complaint, but have now dropped the case; plaintiffs' counsel, as I mentioned, states that they will refile a further revised version shortly.
