Debating the UCLA Anti-Israel Encampment

Even if the encampment organizers' behavior was reasonable, the university's behavior was still illegal.

UCLA law professor Joey Fishkin, an advocate for the 2024 "antizionist" encampment at his university, has a lengthy blog post defending the university from Title VI and constitutional religious discrimination allegations that were the subject of a Becket Fund lawsuit (since settled), and now a federal civil rights action. The heart of the claims is that UCLA violated the religious freedom of, and discriminated against, Jewish students, by allowing the encampment to exclude Jewish students from the encampment, which in turn at times blocked access to campus building. Fishkin responded:

I can say unequivocally based on direct observation that the language quoted above—the central allegation in the Becket Fund complaint—was false. There was no Jew Exclusion Zone. The claim that the encampment was "segregating Jewish students and preventing them from accessing the heart of campus, including classroom buildings [which must mean Royce] and the main undergraduate library [Powell]," as the Becket Fund complaint put it, is false.

I see Fishkin's post as a defense of conduct by the people who ran the encampment. But taken in its best light, it doesn't do much to exonerate UCLA.

Fishkin's argument is that those running the encampment were genuinely and reasonably concerned about avoiding disruption and, more important, the protestor's safety and security; did not intend to exclude Jews as such or otherwise have antisemitic intentions; did not intend to block access to buildings; did not believe they were doing so; and did not at least when he was there, make antisemitic statements, or put up violent or obviously offensive signs.

However, it's not the students who were sued, nor is it the students who are the subject of federal civil rights action. It's UCLA.

My bottom line: Even if the encampers reasonably feared disruption and for their safety, it was illegal of UCLA to allow them to block other students from public property based on suspicion that the students might be violent or disruptive.

Even if from the encampers' perspective it was reasonable from a safety/disruption perspective to be suspicious of Jewish students wearing kippahs or stars of David, or students who refused to pledge their adherence to anti-Zionism, and exclude them from a section of the quad, it was illegal for UCLA to allow them to do so.

Even if those who ran the encampment believed that they weren't blocking access to buildings, it was (a) illegal for UCLA to put up a barrier that even partially blocked access to buildings (including, as I understand it, blocking handicapped access!) unless students could gain access to the encampment--which Fishkin acknowledges UCLA did on April 30, and (b) to the extent that the library and other buildings were fully inaccessible unless you went through the encampment, it was even more egregiously illegal behavior by UCLA to allow access to the encampment area to be blocked.

Subsidiary points:

(1) Fishkin accuses Paul Clement and Becket Fund of making up facts in their complaint that they knew, or reasonably should have known, were false. This is a serious allegation, and one that should be in a complaint to the state bar and federal district court where the complaint was filed, not just in a blog post. Unless and until such a complaint is adjudicated, I'm going to go with the presumption that Paul Clement would not knowingly or recklessly make false claims in a complaint. (UPDATE: Fishkin acknowledges that on April 30, UCLA police blocked off some entrances to at least two buildings. How would he know, "from direct observation," that the other entrances to the buildings remained open? Did he run back and forth to each building to check?)

(2) Fishkin never quite addresses the point that the encampment was both a violation of UCLA rules and illegal, and thus instead of UCLA putting up barriers around the protest and allowing it to police itself, it should have ordered the protest taken down the first night it stayed up.

(3) Part of Fishkin's narrative hinges on what he personally witnessed. As he acknowledges, he obviously wasn't there 24/7, or anything close to it. But beyond that he was a known and visible advocate for the encampment, so of course he's not going to be treated badly. (UCLA commissioned an antisemitism report which notes that Jewish students reported: (1) a Jewish student who was lawfully filming the encampment being slapped by a UCLA teaching assistant; (2) another Jewish student being pepper-sprayed by a protestor; (3) a student from Israel being assaulted by protestors.)

(4) Fishkin states that even when some of the entrances to some of the buildings on the quad were blocked off, other entrances were open. I don't have sources handy, but I distinctly remember reading during the encampment that at some point the other entrances were not open, as alleged in Beckett's complaint. As noted below, UCLA's commissioned antisemitism report found the same thing.

(5) Here's a video of a local news crew showing students trying to access the encampment, and being blocked. Fishkin says that students were blocked only if it was thought they would disrupt the encampment, potentially violently. It seems highly unlikely that the local ABC news affiliate was going to be violent, nor that students trying to enter who knew they were being filmed were going to be violent. So that claim seems false.

(6) Fishkin's narrative depends on the notion that the encampers had the right to exclude those whom they believe were going to disrupt the encampment, in part, but not exclusively, because of potential violence. But wait, who gave students the authority to determine who gets to go into the area of the quad where the encampment was? Well, UCLA did so, at least implicitly, by putting up barriers around the encampment and allowing the encampment itself to exclude people.

And given that Fishkin acknowledges that the encampment physically excluded potential disruptors, how did the members of the encampment decide who might be disruptive? He references one student carrying bear spray who was a known provocateur, but he never denies the central allegation of the complaint: that some students were excluded if they were wearing stars of David, wearing kippahs, or otherwise looked visibly Jewish, and then refused to state that they thought Israel shouldn't exist. (UCLA's antisemitism report: "By April 30, students wearing a Star of David or a kippah, or those refusing to denounce their Zionism (which for many Jews, but not all, is akin to renouncing their Jewish faith), were physically blocked by the protesters' phalanxes from entering or passing through the occupied area of Royce Quad, entering Royce Hall, or entering Powell Library.")

Are such students more likely than average to want to disrupt the encampment? I suppose. Is it obviously illegal discrimination to bar students from an area of an encampment based on them being visibly Jewish unless they swear an oath of allegiance to a political and religious position that they disagree with? Obviously.

Apparently, at some point you could avoid such questioning if you got a wristband certifying you as a supporter. The question that then arises under Title VI and the First Amendment is not, "was this a reasonable security measure that a pro-Palestinian group might take," but, in the actual context, "can a university cordon off part of campus and allow a student group to deny access to that part of campus if the student trying to access campus hasn't gotten a wristband noting adherence to a particular ideology, one that is contrary to the deepest held beliefs of most members of a particular religious and ethnic group?" And the answer to that is clearly no.

In short: it was unlawful for students (and others) to occupy part of campus, even only a small part. UCLA decided to both allow the encampment, and allow the encampment to exclude from its (public!) space whomever it wanted to. I think the fact that UCLA not only permitted this but provided police support, put up barriers, and so on, does arguably mitigate the students' illegal conduct. If the authorities are saying it's kosher, it becomes more difficult to blame them for rule/lawbreaking.

But even if the encampers can escape blame for occupying part of campus illegally, and even if the encampment people had understandable reasons to exclude people in ways that in effect singled out Jews or denied them their religious freedom rights, it was obviously illegal for UCLA to permit them to do so.

The counter-argument is that giving the students discretion to exclude potential threats was necessary for the encampment's security. Let's assume that's true. If so, it came down to a choice: permit an illegal, against-school-rules encampment to violate the civil rights to Jewish (and other) students, or order the illegal encampment taken down. Fishkin, being obviously extremely sympathetic to the encampment, defends the former. The law, however, is with the latter.

Comments

[SR]

This post misrepresents Fishkin's blogpost. It is almost entirely devoted to describing the facts at UCLA as he witnessed them and based on his knowledge of the physical layout of where the encampment was located and how it had been cordoned off by campus security. The main point of his blogpost is that, based on his observations, no one could have been prevented from accessing any buildings by the encampment and, thus, any claims that students were prevented from accessing any campus buildings or videos that purported to show that students were prevented from doing so were false and misleading. I have never been to UCLA and did not see where the encampment was located so I cannot comment about whether what Fishkin says is true or not, but this post also does not address Fishkin's central claims, which is that the lawsuit and subsequent government investigation seem to be based on a lie.

[Brett Bellmore]

But Fishkin is quibbling about something that's legally irrelevant.

The students who got excluded from the 'encampment' had every bit as much right to occupy that public space as anybody else. The property was University property, the owner had not given the protestors exclusive right to it.

So it wasn't legal in the first place for them to exclude anybody from the encampment. It literally does not matter if they were blocking an otherwise empty square of ground, or the entryway to a building. Neither was something they could rightfully do.

And then to do so by assault and battery? They weren't just TELLING others that they couldn't enter the area, they were compelling them to not enter it.

[David Bernstein]

So there are two separate issues in Fishkin's claim. Was is that Jewish students were denied access to part of campus. He doesn't seriously dispute that, his claim is that they were denied access because they were Jewish, but because they were seen as potentially disruptive or violent. But excluding people wearing a star of David or a kippah is because you think they are potentially disruptive or violent is... excluding Jewish students.

The second claim is that no one was denied access to campus buildings, because one could go in entrances that weren't blocked. Like SR acknowledges, the only evidence he has for this is his first-hand knowledge. But I followed the encampment at the time, and the allegation was that the alternative entrances were locked. Which makes total sense. If UCLA police are blocking access to the front entrance, are they going to allow entrance to the back entrance, from which you can then get to the front, and then potentially enter the encampment? Anyway, how could he possibly know from first-hand experience that this is a lie; he doesn't say he tried to enter the buildings from those doors at the time when they were said to be locked.

[Alpheus W Drinkwater]

Prof. Fishkin was not quibbling about that. Did you read his post? He was rebutting a specific allegation made in the lawsuit.

Perhaps the legal claims you make are true, and perhaps not. But Fishkin's post was not defending the complete legality of the situation.

[David Bernstein]

About what? His allegation is that buildings were never completely inaccessible *because of the encampment's location.* But that's not the legal claim. The legal claim is that because of *UCLA's* actions (UCLA is the defendant), (some) Jews weren't allowed into the encampment, and because of that they could not access the library and other buildings. If those buildings other entrances were closed by UCLA, even if that decision wasn't made by the encampment, it still means that by denying the students entry into the encampment, the students couldn't access the buildings. What am I missing?

[David Bernstein]

(And it's also the case that if the buildings were open, and not a single entrance was blocked, UCLA still loses, legally speaking, because (some) Jews were blocked from the encampment area itself, which is public property. And this, I assume, is that UCLA didn't bother contesting any of the specific factual allegations, the only way it wins is by successfully arguing that it wasn't legally responsible for the encampment's exclusionary policies. Judge said, ha ha, are you kidding me, and UCLA settled.)

[SR]

I do not have time to review his post in detail now, but I recall that he was claiming that no student ever had to go through the encampment to enter any building. I take it you disagree with that statement.

[Brett Bellmore]

My point is that, legally, it doesn't matter if no student ever had to go through the encampment to enter any building. The protesters had no right to bar access even to a random patch of the campus, even if it wasn't in anybody's way.

It's a public area, you simply can't bar access to people entitled to be there, let alone forcibly.

[David Nieporent]

this post also does not address Fishkin's central claims, which is that the lawsuit and subsequent government investigation seem to be based on a lie.

Unless the post was amended after your comment but before I read it, the post does in fact address those claims, both by challenging their accuracy and by pointing out their legal irrelevancy.

[SR]

No it doesn't. Bernstein's post focuses on people being excluded from the encampments not from university buildings which is what Fishkin was addressing. Fishkin's post is about the misrepresentation of the facts in the UCLA case not so much about the law. Bernstein does not address that issue in his post only in his responses below.

[David Bernstein]

But it is about the law, because if the plaintiffs didn't have the law on their side, the judge wouldn't have granted a preliminary injunction and the case might have been dismissed entirely. And the building issue, while interesting, doesn't much affect the legal anaylsis, which is that UCLA stood by and allowed members of the encampment to exclude people from the encampment whom they thought were potentially disruptive or dangerous, which in turn led them to exclude Jewish students whom they believed to be "Zionists."

[ReaderY]

In some respects the “defense” is essentially a confession. A core aspect of prejudice against a disfavored group was to regard them, because of group membership, as a likely source of violence. This has been the case with white attitudes toward black people from at least Reconstruction. Into quite recent times, all a police officer had to say to justify shooting an unarmed black suspect (or bystander) was that he “looked menacing” or similar, causing the police officer to feel afraid. And that was that. Subjective fear was treated as objective reality.

The “defense” here is based on similar attitudes towards Jews. Subjective fears are similarly treated as fact. At least nobody was shot.

[John F. Carr]

One could imagine an interpretation of Title IX where student-on-student sexual assault is not the school's fault. That's not how the law has been interpreted. The same principle should apply here.

[David Nieporent]

To be more precise, a school is not liable for the assaults themselves; it's liable for failing to do anything about assaults when they occur.

[AtR]

I was physically kept out of the MIT encampment by people who knew nothing about me. Yes, I'm visibly Jewish and I may have had an Israeli flag somewhere on me (I honestly cannot remember), but there could have been no reason to keep me out other than anti-Semitism.

The MIT police, who were right there, responded to my complaints by reminding me that they are a private institution and can act as they wish. They did nothing to let me pass through the Kresge oval (an open area at the heart of campus).

[David Bernstein]

If you write that up in an email with an approximate date of the incident and send it to me, I can add it to my research.

[Stupid Government Tricks]

Oh come now! You obviously must have been wearing a flag, and were kept from entering because they feared you were going to light it on fire and burn down their encampment. They rightly feared you were a suicide flagger. Yeah, that's the word, a suicide flagger. You savage!

[AtR]

Yes, those small flag pins are dangerous.