The date of Christmas was set around 380, and Christians prepare in Advent ('Bear Fruit that befits repentance'.,. so says Luke 3:8)
Now you may well ask, what is all this stuff
about repentance doing here? After all, we are in Advent, not Lent. True,
but here a little history might help. While the date of Christmas was set
around 380, the season of Advent took longer to develop. It was first a season
of six weeks of fasting for monks, then reduced to four weeks and, by the time
of Pope Gregory the Great (late 6th c.) enjoined on everyone and especially for
those to be baptized on the Feast of the Epiphany, January 6. Later, it was
called a “little Lent”.
A sermon by Jan Robitscher
“Bear Fruit that befits repentance.”
(Luke 3:8)
Year C Advent
3 (RCL)Jan
Robitscher
Zephaniah 3:14-20St.
Mark’s Church
Canticle 9Berkeley,
CA
Philippians 4:4-7December
16, 2012
Luke 3:7-18
In the Name
of God: Father, Son and Holy Spirit. Amen.
What is the crying at Jordan?
Who hears, O God, the prophecy?
Dark is the season, dark our hearts
and shut to mystery.
(Carol Christopher Drake)
The words of Carol Christopher Drake, of our own hymn, St.
Mark’s Berkeley, tell us that we are in the middle days of Advent, the days
of John the Baptist. But did you hear that last verse of the Gospel
reading?
“So with
many other exhortations, he (John the Baptist)
proclaimed the
good news to the people.” (Luke 3:18)
What? Does this sound like Good News to you? And on the Sunday of
Gaudete (the first word of the Latin introit, Rejoice) and rose
vestments? It is not hard to imagine John waist-deep in the Jordan yelling
at those coming to be baptized,
“You
brood of vipers! Who warned you to flee from the
wrath to come?
Bear fruits that befit repentance.” (Matt 3:7)
Now you may well ask, what is all this stuff about repentance
doing here? After all, we are in Advent, not Lent. True, but here a
little history might help. While the date of Christmas was set around 380, the
season of Advent took longer to develop. It was first a season of six weeks of
fasting for monks, then reduced to four weeks and, by the time of Pope Gregory
the Great (late 6th c.) enjoined on everyone and especially for those to be
baptized on the Feast of the Epiphany, January 6. Later, it was called a
“little Lent”. But this still begs the question, what’s with all this penance,
and John’s words, “Bear fruits that befit repentance”?
St Mark's, Berkeley, California
John the Baptist. The Eastern Church calls him John the
Forerunner. This man who lived alone in the desert and ate locusts and honey
was anointed by God to proclaim a disturbing message to an apathetic people: that
the Kingdom of God was at hand and would soon become tangible in the person of
Jesus. The world’s darkness was about to be shattered by God’s light--a light
so penetrating that even the most secret sins of the heart would be exposed. So
John preached a baptism of repentance--the outward sign of a converted
life--and he did it with very uncomfortable words:
“You
brood of vipers! Who told you to flee from
the
wrath to come? Bear fruits that befit repentance,
and
do not say to yourselves, ‘We have Abraham as
our
father.’ for I tell you, God is able from these stones
to
raise up children of Abraham...” (Luke 3: 7ff)
And, almost in a parallel of the Parable of the Vine and Branches
in the Gospel of John, where those branches that bear no fruit are cut away, so
John the Baptist cries out that
“even
now the axe is lying at the root of the
trees;
every tree therefore that does not bear
good
fruit will be thrown into the fire and
burned.”
(Luke 3:9)
Maybe this is the way into John’s seemingly harsh words. We
must abide in Christ if we are to bear any fruit, and there can be no fear or
coercion in this abiding. John would never accept these as motives for
receiving his baptism. What he did accept was the person who came face to
face with the sinfulness of the human condition and was willing to turn around
(the literal meaning of conversion) and walk in another direction. For John
knew that only in this unburdened condition could one greet Jesus, the long-awaited
Messiah and Lord.
But what of us? We have received an even greater baptism
because Jesus, himself sanctified it and gave the Holy Spirit in its waters.
Yet we find ourselves in Advent, hearing again those words of John “Bear fruits
that befit repentance.”
In recent yearsAdvent has become a much less penitential
season. This is good. No longer is Advent a “little Lent”. But the Church
in its wisdom (or the lectionary writers in theirs) did not excise this lesson
and I, for one, am grateful. For it forces us to examine just what we are
preparing for in this season. Are we looking for Jesus’ comings--in the
past at his birth, in the present in Word and Sacrament, in his coming again in
glory? John knew this, for he stood at the crossroads of the Old Covenant and
the New. And he preached that the only preparation for Jesus’ coming was to
repent of the sins of the past in order to look forward with joyful
anticipation to Jesus’ coming.
Perhaps what we need to repent of is that we would rather look
elsewhere. Do we look at the drawings on Christmas cards, dwelling in a
sentimental past without seeing the wonder of God becoming human? Or maybe we
are so busy shopping that we don’t see beyond the lights and advertising. Or
maybe we must admit that we live in a culture of an awful convergence of guns
and violence and mental illness with no help, that has no room for the
prophetic words of John or the comings of Jesus and leaves the death of the
innocent children and their teachers of Newtown, CT in its wake. Or maybe we
don’t see the worth of looking back--or forward--at all and we succumb to our
despair. But it does not have to be so! What are the fruits of which John
speaks?
St John the Baptist in the Desert, Collantes Francisco
Repentance is one thing, but bearing fruits is quite another. I
believe these fruits are not much different from the ones John gave in answer
to the question “What then should we do?” John said:
“Whoever
has two coats must share with anyone
who
has none, and whoever has food must do likewise...”
John’s reply makes clear that preparation for Christ’s comings
involves a willingness to look beyond ourselves. Gift-giving is not only for
each other under the Christmas tree, but is for those who have nothing to give
back. And so we collect socks and toiletries for the homeless here in Berkeley,
create Christmas stockings for the residents of Berkeley Pines and we give to
others beyond our neighborhood through Episcopal Relief and Development and
other charities, year-round.
And reconciliation is not only for Lent. We must strive to live in
community with one another, bearing with one another and practicing “holy
listening”. And the guidance of the Holy Spirit is not just for Pentecost. We
must earnestly pray, as a community, for the presence, comfort and guidance of
the Spirit through these days of Advent and beyond, for ourselves and for each
other and for our world.
Only by repentance and, as the monastic vow puts it, conversion of
life, can we truly make room to celebrate Christ’s comings. St. Paul’s words
from the letter to the Philippians (and the introit for this day) ring true:
Rejoice
in the Lord always; again I will say Rejoice.
Let
your gentleness be known to everyone. The
Lord
is near... And the peace of God which surpasses
all
understanding will guard your hears and your minds
in
Christ Jesus.
Toward the end of the 4th century, St. John Chrysostom wrote a
sermon on John the Baptist. In it, he included some thoughts about the biblical
figure at the crossroads which are also appropriate to the Advent season which
would not enter the church calendar for another hundred years:
[John the
Baptist] then let us emulate, and forsaking
luxury
and drunkenness, let us go over unto the life of
restraint.
For this surely is the time of confession both
for
the uninitiated and for the baptized; for the one, that
upon
their repentance they partake of the Sacred Mysteries;
for
the others, that having washed away their [sins] after
baptism,
they may approach the Table with a clean
conscience...”
St John the Baptist baptizes, Nicolas Poussin, 1635
Maybe John was not so much yelling at those who came receive his
baptism as he was begging them to make the kind of preparation one would make
to receive an honored or beloved guest. Let us do the same as we come to this
Table to receive Jesus, and so become Christ-bearers to a hurting world.
Remember the humble birth of God into our humanity and clear away everything
that hinders us in anticipation of greeting him when he comes again. This
is the good news John preached so that we might greet with joy the
comings of our Lord.
Anti-Defamation League USA Civil Rights Director Deborah Lauter speaks in interview to subject of bullying Jewish students on campus, anti-Semitism, and anti-Zionism
Whether they are active supporters of Israel or
not, Jewish students internalize a great deal of
the vilification aimed at Israel. Perhaps none of
the accusations against Israel, and by extension
Jews, is as hurtful and frustrating as the charge of
racism. Accusations of racism have become a staple
of anti‐Israel protest on campus and, for
Jewish students, these charges can negatively
impact their college experience and raise important
questions about their Jewish identity.
Interview-article by Peter Menkin
Deborah Lauter, Civil Rights Director , Anti-Defamation League USA
1. Your organization, and you in particular at Anti-defamation League, New York as Director of Civil Rights are situated so that our readers may get a better idea of what is meant by hate speech, and significantly, what is not hate speech. Where does debate and dialogue end, especially in light of bullying Jewish students on university and college campuses in The United States?
Generally speaking, “hate speech” is a term for speech or expression intended to degrade a person or group of people based on their race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, ideology, social class, or mental capacity.
Hate speech, although offensive and hurtful, is protected expression by the First Amendment of the United States Constitution. ADL is a leading advocate for free speech and does not believe in government suppression of hateful speech merely because it is hateful.
However, when speech or expression contains a direct, credible threat against an identifiable individual, organization, or institution, it crosses the line to criminal conduct. Hate speech containing criminal threats is therefore not protected by the First Amendment.
We generally do not advocate engaging in dialogue with a known hater. For example, we will not debate Holocaust deniers, as we believe it gives their views legitimacy. We will, however, speak up vociferously against their hate and encourage to do so. We believe that the best way to combat hateful speech is with more speech. University officials, professors and students must help to maintain hate-free environments on campuses. Hate speech can and should be condemned, particularly anti-Semitic and anti-Israel speech.
ADL has produced an important manual for college and university administrators, Responding to Bigotry and Intergroup Strife on Campus: Guide for College and University Administrators to assist campuses grappling with these issues. If there have been hate incidents on campus we reach out to administrators to offer our resource and provide workshops and training as well. Supplemental question: Again, a broad question to go on with the issue: ADL appears to be an educational force from you answers. Will you tell us something of the success of ADL in this area, and will you tell us if this is a way of teaching tolerance, or justice. Can you couch this or touch on the teachings of the Jewish faith and its lessons in your answer. That is if as I understand it, yours is essentially an arm of Jewish faith and tolerance in the world.
ADL IS A LEADING PROVIDER OF ANTI-BIAS EDUCATION AND DIVERSITY TRAINING PROGRAMS THAT HELP CREATE AND SUSTAIN INCLUSIVE HOME, SCHOOL, COMMUNITY AND WORK ENVIRONMENTS. ADL’S A WORLD OF DIFFERENCE® INSTITUTE, FOR EXAMPLE, OFFERS ANTI-BIAS EDUCATION AND DIVERSITY TRAINING PROGRAMS AND RESOURCES. THE INSTITUTE SEEKS TO HELP PARTICIPANTS: RECOGNIZE BIAS AND THE HARM IT INFLICTS ON INDIVIDUALS AND SOCIETY; EXPLORE THE VALUE OF DIVERSITY; IMPROVE INTERGROUP RELATIONS; AND COMBAT RACISM, ANTI-SEMITISM AND ALL FORMS OF PREJUDICE AND BIGOTRY. OUR BRAUN HOLOCAUST INSTITUTE’S PROGRAMS FOR
Abraham Foxman, Director, Anti-Defamation League, New York City
EDUCATORS, STUDENTS, COMMUNITY LEADERS, AND FAMILIES EXPLORE THE ENDURING IMPACT OF THE HOLOCAUST AND APPLY ITS LESSONS TO CONTEMPORARY ISSUES OF PREJUDICE AND MORAL DECISION MAKING. THROUGH THESE EFFORTS, THE INSTITUTE HOPES TO ENSURE THAT THE HOLOCAUST – AND THE BRUTALITY THAT HUMANKIND INFLICTED UPON ITSELF – IS NEVER FORGOTTEN. SIMILARLY, OUR CONFRONTING ANTI-SEMITISM PROGRAM IS DESIGNED TO EMPOWER THE JEWISH COMMUNITY TO RESPOND TO ANTI-SEMITIC INCIDENTS AND TO CHALLENGE THE PERSISTENT ANTI-SEMITIC MYTHS AND STEREOTYPES IN WHICH MANY OF THESE CONFLICTS ARE ROOTED. THROUGH INTERACTIVE TOOLS AND ROLE-PLAY THE PROGRAM’S WORKSHOPS HELP JEWISH TEENAGERS AND THEIR FAMILIES DEVELOP A STRONG, POSITIVE JEWISH IDENTITY AND ACQUIRE THE TOOLS AND SKILLS NECESSARY TO EFFECTIVELY AND ASSUREDLY RESPOND TO INSENSITIVE BEHAVIOR, BIAS AND PREJUDICE. Supplemental question: The subject of hate and the role of ADL: Does it support the use of Title VI, and will you be explicit in response. Can you tell us how widespread Title VI is used, and if it is a buffer against anti-Zionism, anti-Semitism, and even hate in general.
UNDER THE APPROPRIATE FACTS AND CIRCUMSTANCES, ADL BELIEVES TITLE VI PROVIDES AN IMPORTANT REMEDY. IT SHOULD BE USED CAUTIOUSLY AND ONLY IN SITUATIONS WHERE CONDUCT THREATENS, HARASSES OR INTIMIDATES JEWISH STUDENTS TO THE POINT THAT THEIR ABILITY TO PARTICIPATE IN AND BENEFIT FROM THEIR COLLEGE EXPERIENCE IS IMPAIRED.
2. In our background conversation on the subject of Jewish bullying on campuses, made by phone from my home office in Mill Valley, California to your office in New York City, you said, “If we see an issue, we have programs for Jewish students we have materials to deal with things in the Jewish community. We provide tools and training. We work with the office of civil rights.” Will you be good enough to enlarge on your comment? Please tell us some of the work ADL does in this area of providing tools and training, maybe with a specific instance, if you are willing? Further, when do you decide the timing and situation where your organization works with the United States office of Civil Rights?
ADL is a leader in developing anti-bullying and anti-cyberbullying training, curriculum and resources for teens, school educators, campuses, employers, youth providers and adult family members – whether they are Jewish or not. One specific program is our CAMPUS OF DIFFERENCE program, for example, helps college administrators, faculty members and students learn to examine stereotypes, expand cultural awareness, explore the value of diversity and combat racism, anti-Semitism and all forms of bigotry. This program has taken place at more than 135 colleges and universities. Four hundred more campuses have used ADL anti-bias educational materials. ADL has reached out to federal agencies, both proactively and reactively. For example, in August 2010, ADL submitted recommendations to Education Secretary Arne Duncan, U.S. Attorney General Eric H. Holder, Jr. and Health and Human Services Secretary Kathleen Sebelius (a trio of federal agencies) on how the U.S. government can more effectively address the issue of bullying and cyberbullying. These recommendations were submitted in advance of a Federal Bullying Prevention Summit. In October 2010, the US Department of Education’s Office of Civil Rights (OCR) issued new guidance to schools stating that anti-Semitic harassment on campus can be prohibited, under certain circumstances, by federal civil rights law. ADL had called for clarification on this issue several months earlier in a letter that the League had coordinated with 12 other Jewish organizations. The letter called on the Department of Education to interpret Title VI of the 1964 Civil Rights Act broadly to include Jewish students and protect them from anti-Semitic harassment, intimidation and discrimination – including anti-Israel and anti-Zionist sentiment that crosses the line into anti-Semitism. The OCR’s new guidance explicitly notes that the agency has authority to apply its Title VI enforcement powers to protect Jewish students from a hostile environment “on the basis of actual or perceived shared ancestry or ethnic characteristics.” The guidance states that schools are responsible for addressing incidents of discriminatory harassment and describes the obligations schools have to respond, including investigating and dealing with the incident in a timely manner, disciplining, and addressing the general campus environment that gave rise to the incident. In May 2011, I testified and submitted on behalf of ADL a formal statement to the US Commission on Civil Rights for a Briefing on Federal Enforcement of Civil Rights Laws to Protect Students Against Bullying, Violence and Harassment. Supplemental question: Spend some time telling us about how ADL monitors hate on the internet, so provide a concrete example to one statement in your answer. Note that my work appears Web Only. This is a current and interesting area to many people, especially those interested in media and the new media. Are there areas of anti-Semitism or hate in general in the areas of social media on the internet you are currently aware of or have taken action on?
ADL MONITORS EXTREMIST ORGANIZATIONS’ MATERIALS AND IS VIGILANT ABOUT ASKING INTERNET SERVICE PROVIDERS TO ENFORCE THEIR TERMS OF SERVICE THAT PROHIBIT HATE CONTENT. FOR EXAMPLE, THE TERRORIST GROUP HEZBOLLAH WAS ADVERTISING ON THE ITUNES STORE PROMOTING STREAMING VIDEO FROM THEIR LEBANON-BASED SATELLITE NETWORK, AL-MANAR. ADL WAS THE FIRST TO REPORT ON THE APP, EXPOSING THE TERRORIST GROUP’S USE OF THIS MEDIA TO SPREAD ITS MESSAGES OF HATE AND VIOLENCE, DISSEMINATION OF ANTI-SEMITIC AND ANTI-AMERICAN PROPAGANDA AND GLORIFICATION OF SUICIDE BOMBINGS. ADL IS ALSO REGULARLY CONTACTED BY CONCERNED INTERNET USERS ABOUT HATE ON THE INTERNET. WE DEVELOPED A TOOLKIT TO EDUCATE THE PUBLIC ABOUT INTERNET HATE AND HOW TO BE PROACTIVE IN THE FIGHT AGAINST IT. IT CAN BE FOUND ON OUR WEBSITE: http://www.adl.org/internet/Binder_final.pdf
ADL MAY BE CONTACTED THROUGH OUR WEBSITE AT http://support.adl.org/site/PageServer?pagename=contact_us Supplemental question: Again, a broad question to go on with the issue: ADL appears to be an educational force from your answers. Will you tell us something of the success of ADL in this area, and will you tell us if this is a way of teaching tolerance, or justice. Can you couch this or touch on the teachings of the Jewish faith and its lessons in your answer. That is if as I understand it, yours is essentially an arm of Jewish faith and tolerance in the world.
ADL IS A LEADING PROVIDER OF ANTI-BIAS EDUCATION AND DIVERSITY TRAINING PROGRAMS THAT HELP CREATE AND SUSTAIN INCLUSIVE HOME, SCHOOL, COMMUNITY AND WORK ENVIRONMENTS. ADL’S A WORLD OF DIFFERENCE® INSTITUTE, FOR EXAMPLE, OFFERS ANTI-BIAS EDUCATION AND DIVERSITY TRAINING PROGRAMS AND RESOURCES. THE INSTITUTE SEEKS TO HELP PARTICIPANTS: RECOGNIZE BIAS AND THE HARM IT INFLICTS ON INDIVIDUALS AND SOCIETY; EXPLORE THE VALUE OF DIVERSITY; IMPROVE INTERGROUP RELATIONS; AND COMBAT RACISM, ANTI-SEMITISM AND ALL FORMS OF PREJUDICE AND BIGOTRY. OUR BRAUN HOLOCAUST INSTITUTE’S PROGRAMS FOR EDUCATORS, STUDENTS, COMMUNITY LEADERS, AND FAMILIES EXPLORE THE ENDURING IMPACT OF THE HOLOCAUST AND APPLY ITS LESSONS TO CONTEMPORARY ISSUES OF PREJUDICE AND MORAL DECISION MAKING. THROUGH THESE EFFORTS, THE INSTITUTE HOPES TO ENSURE THAT THE HOLOCAUST – AND THE BRUTALITY THAT HUMANKIND INFLICTED UPON ITSELF – IS NEVER FORGOTTEN. SIMILARLY, OUR CONFRONTING ANTI-SEMITISM PROGRAM IS DESIGNED TO EMPOWER THE JEWISH COMMUNITY TO RESPOND TO ANTI-SEMITIC INCIDENTS AND TO CHALLENGE THE PERSISTENT ANTI-SEMITIC MYTHS AND STEREOTYPES IN WHICH MANY OF THESE CONFLICTS ARE ROOTED. THROUGH INTERACTIVE TOOLS AND ROLE-PLAY THE PROGRAM’S WORKSHOPS HELP JEWISH TEENAGERS AND THEIR FAMILIES DEVELOP A STRONG, POSITIVE JEWISH IDENTITY AND ACQUIRE THE TOOLS AND SKILLS NECESSARY TO EFFECTIVELY AND ASSUREDLY RESPOND TO INSENSITIVE BEHAVIOR, BIAS AND PREJUDICE.
3. As a Religion Writer, I am interested to hear you speak about the role of ADL as part of the Jewish Community, and how—even in what ways Anti-Defamation League makes contribution to the larger national American community. Again, can you give us an example so to help readers see how ADL has its feet on the ground, and something of its success that benefits American society?
When ADL was founded in 1913 its mission was explicitly “to stop, by appeals to reason and conscience and, if necessary, by appeals to law, the defamation of the Jewish people. Its ultimate purpose is to secure justice and fair treatment to all citizens alike and to put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.” So from its inception, ADL appreciated not only the importance of stopping the defamation of the Jewish people but also to secure justice and fair treatment for all. As ADL moves into its Centennial celebration next year, I have reflected a lot on this mission statement, which has remained intact. I think it was brilliant, for it came from at a time when Jews in America knew all too well the history of persecution in other countries and understood that in order for Jews to be safe and secure, that democracy itself had to be safe and secure and so they had to stand up for the rights of all minorities. We have also learned in our nearly 100 years of work that there is no one way to fight hate and bigotry — it is essential to take a multipronged approach. Our work reflects this commitment in myriad ways. Our civil rights work includes:
· Filing amicus briefs in affirmative action, voting rights, immigration, and First Amendment cases;
· For more than 13 years, leading a broad coalition of civil rights, religious, educational, professional, law enforcement, and civic organizations working to secure enactment of the Hate Crimes Prevention Act;
· Scrutinizing and exposing extremists and hate groups
· Monitoring hate on the Internet
· Providing expertise on domestic and international terrorism
· Probing the roots of hatred
· Developing and delivering educational programs
· Fostering interfaith/intergroup relations
· Mobilizing communities to stand up against bigotry
· Defending the security of Israel and Jews worldwide
Our Education Division addresses the fight against hate in a proactive way, with programs that start as early as pre-school. No one is born hating. Hate is learned, and therefore, can be unlearned. We estimate our diversity education programs have impacted millions of students.
4. This last question asks that you talk to us some about what may have been forgotten or missed in these questions. What would you like to say, that is on your mind, or even current in the news about ADL’s work. With thanks for the opportunity to talk with you by phone, and your courtesies, it has been a pleasure to make your acquaintance in this way.
Supplemental question: Sometimes it is a good idea to invite readers into areas of self-promotion using the last question: For instance, where does one find ADL, and what kinds of needs prompt inquiry to your organization. Where, or to whom may they write? Will you provide an email where readers may reach you, or ADL itself if they wish to write by email. In general, will your organizations or its members be speaking before legislators or high elective figures that are slated on schedule this year still, or into next year. Has anyone of prominence in the Jewish Community or out made lauditory statement of a specific area of success or action by ADL that you want to emphasize to readers and the general public itself.
ADL Website is adl.org.
ADL MAY BE CONTACTED THROUGH OUR WEBSITE AT http://support.adl.org/site/PageServer?pagename=contact_us CONTROVERSIAL ATTORNEY AND PROFESSOR DERSHOWITZ COMMENTS ON THE MATTERS IN QUESTION Dershowitz
STATEMENT BY THE MUSLIM STUDENT ASSOCIATION NATIONAL VICE PRESIDENT SENT BY EMAIL TO RELIGION WRITER PETER MENKIN ON REQUEST Sent to Religion Writer Peter Menkin in regards to a statement on the Muslim Student Association’s role in bullying Jewish students on American campuses:
Maria Ahmad, Muslim Student Association
My emphasis is student affairs…dealing with matters that are not academic, getting in touch with matters that are not academic, student affairs, things like that. Dealiing with everything that is not academic. I go to Northern Illinois University. The Group that is called The Committee on Justice and Palestine. I remember that would have during the Spring is an awareness week, called Nakba, which translated as catastrophe. During this week students would put on different events that were going on in Palestine. So I think the whole checkpoint activity, is just a creative way to display that awareness. Having a lecture may not be as creative to simulate a situation. It is student freedom. This is a way to tell other people who may not have heard of Palestine or Israel, who just think that America is all there is in the world, I think that this way is a way to have students get an exposure to these events. It’s not necessarily true that only Muslim students hold these events. Because there is an organization that is called The Muslim Student Association. There is an organization called, Students for Justice in Palestine, and their not necessarily the same members. MSA are looking for a more religious aspect, vs. Student Justice for Palestine is a more social political movement. There may be members from both groups. The purpose of MSA is twofold mission; the first being support Muslims on campus to foster their identity, and the second is to combat misconceptions about Islam. In that sense, my parents are from India. Muslims can come from anywhere. Therefore making the Palestinian issue only a Muslim issue is not just, because there are issues happening all over the world. For MSA to take on all those issues would be impossible. Maria Ahmad, Vice President MSA national… LEGAL COMPLAINT REGARDING MUSLIM STUDENT ASSOCIATION GROUP CALLED THE COMMITTEE ON JUSTICE AND PALESTINE AND THEIR ANNUAL ‘NAKBA’ This letter written as motion to dismiss non-recognition of the following: BY AUTHORIZING THE MSU/SJP “APARTHEID WEEK” “CHECKPOINT” DEMONSTRATIONS, THE REGENTS HAVE PRIMA FACIA VIOLATED TITLE VI, SINCE THESE ANNUAL DEMONSTRATIONS EMBODY RACIST HATE SPEECH AND CONDUCT NOT PROTECTED BY THE FIRST AMENDMENT JOEL H. SIEGAL, ESQ. [SBN: 117044] Attorney at Law 703 Market Street, Suite 801 San Francisco, CA 94103 Telephone: (415) 777-5547 Facsimile: (415) 777-5247 Email: joelsiegal@yahoo.com NEAL M. SHER, ESQ. [New York Bar # 1092329] Attorney at Law 551 Fifth Avenue, 31st Floor New York, NY 10176 Telephone: (646) 201-8841 Email: nealsher@gmail.com Attorneys For Plaintiffs JESSICA FELBER and BRIAN MAISSY UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JESSICA FELBER and BRIAN MAISSY Plaintiffs, vs. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant. ))))))))))) No. CV 11-1012 RS PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT THE REGENTS OF THE UNIVERSITY OF CALIFORNIA’S (UC REGENTS) RULE 12(b)(6) MOTION [SAC] Date: March 15, 2012 Time: 1:30 p.m. Dept: Courtroom 3, 17th Floor Judge: Honorable Richard Seeborg Complaint Filed: March 4, 2011 Second Amended Complaint Filed: Jan. 6, 2012 Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -i- Case No. CV 11-1012 RS TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-iii I. BY AUTHORIZING THE MSU/SJP “APARTHEID WEEK” “CHECKPOINT” DEMONSTRATIONS, THE REGENTS HAVE PRIMA FACIA VIOLATED TITLE VI, SINCE THESE ANNUAL DEMONSTRATIONS EMBODY RACIST HATE SPEECH AND CONDUCT NOT PROTECTED BY THE FIRST AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. ALLEGATIONS THAT FELBER PREMATURELY WITHDREW FROM ATTENDING UC BERKELEY AFTER SHE WAS ASSAULTED IN MARCH 2010 AMPLY SUPPORT HER TITLE VI CLAIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 III. THIS COURT CAN FOLLOW SETTLED FEDERAL RULES FOR JUDICIAL OVERSIGHT OF ON CAMPUS VIOLENCE AND HOSTILE ENVIRONMENT HARASSMENT COMMITTED FOR YEARS BY UC AND ASUC REGISTERED AND SUBSIDIZED STUDENT ORGANIZATIONS WHICH INTERFERE WITH THE RIGHTS OF JEWISH STUDENTS, WHICH SUBSTANTIALLY DISRUPT UNIVERSITY OPERATIONS, AND INTRUDE UPON THE PROGRAMS OF THE UNIVERSITY AND THE RIGHTS OF OTHER STUDENTS . . . . . . . . . . . . . . . . . . . . 5 A. THE COMPLAINED OF SPEECH AND CONDUCT HERE IS NOT PURE INDEPENDENT STUDENT SPEECH BUT RATHER IS CONDUCT AND HATE SPEECH REASONABLY PERCEIVED TO BEAR THE IMPRIMATUR OF THE DEFENDANT . . . . . . . . . . . . . . . . . . . . . 5 B. THE COMPLAINED OF SPEECH AND CONDUCT EVEN IF HELD TO BE PURELY STUDENT SPEECH CAN STILL BE HELD AS THE BASIS OF A TITLE VI PRIVATE RIGHT OF ACTION AGAINST THE DEFENDANT BECAUSE IT ENDANGERED THE SAFETY OF OTHER STUDENTS, INTERFERED WITH THE RIGHTS OF OTHER STUDENTS, SUBSTANTIALLY DISRUPTED UNIVERSITY OPERATIONS, AND INTRUDED UPON THE PROGRAMS OF THE UNIVERSITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 IV. THE UC REGENTS AND OFFICIALS ATTACK ON THE PLAINTIFFS’ CLAIMS FOR RELIEF ARE WITHOUT MERIT AND SHOULD BE OVERRULED . . . . . . . . . 8 A. THE ELEVENTH AMENDMENT DOES NOT PROVIDE THE REGENTS ABSOLUTE IMMUNITY IN THIS CASE, AND CERTAINLY NOT FROM THE PLAINTIFFS’ TITLE VI CLAIMS . . . . . . . . . 8 B. THE REGENTS HAD CONTINUING MULTIPLE NOTICES OF THE COMPLAINED OF HOSTILE ENVIRONMENT . . . . . . . . . . . . . . . . . . . . . . . . 9 C. THE ACTIONS AND DELIBERATE INDIFFERENCE OF THE UC DEFENDANTS HAVE VIOLATED PLAINTIFFS’ FEDERAL CONSTITUTIONAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF SERVICE WHEN ALL CASE PARTICIPANTS ARE CM/ECF PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . last page Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -ii- Case No. CV 11-1012 RS TABLE OF AUTHORITIES Page(s) Cases Bakke v. University of California (1976) 18 C3d 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bethel School District v. Fraser, 478 U.S. 675 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Brown v. Board of Education (1954) 347 U.C. 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Clark v. State of California (9th Cir. 1997) 123 F.3d 1267, cert.den. 524 U.S. 937 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 College Republicans at San Francisco State v. Reed, 523 F.Supp.2d 1005 (ND Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 7 Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 10 DeShaney v. Winnegago County Dept. of Social Services, 489 U.S. 189 (1989) . . . . . . . . . 10, 12 Emma C. v. Eastin (ND Ca. 1987) 985 F.Supp.940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Flores v. Morgan Hill USD (9th Cir. 2002) ___ F.3d ___ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Genetech, Inc. v. Eli Lilly & Co., 998 F.2d 931 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Goldberg v. Regents of the University of California, 248 Cal.App.2d 867 (1967) . . . . . . . . . . . . 3 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 Healy v. James, 408 U.S. 169 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Holder v. Humanitarian Law Project (2010) 561 U.S. ___ at ____; 130 S.Ct. 2705, at 2725 . . . 4 In re Holoholo, 512 F.Supp. 889 (D.Ha. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Jones v. Indiana Area Sch. Dist. (W.D. Pa. 2005) 397 F.Supp.2d 628 . . . . . . . . . . . . . . . . . . . . . 2 Lovell v. Chandler (9th Cir. 2002) 303 F.3d 1039 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Loving v. Virginia (1967) 388 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Monteiro v. The Tempe Union H.S. Dist. (9th Cir. 1998) 158 F.3d 1022 . . . . . . . . . . . . . 1, 2, 6, 9 Nicole M. v. Martinez Unif. Sch. Dist., 964 F.Supp.1369 (ND, Cal. 1997, Patel, J.) . . . . . . 2, 4, 7 Papasan v. Allain, 478 U.S. 265 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . 3 Saxe v. State College Area School District (3rd Cir. 2001) 240 F.3d 200 . . . . . . . . . . . . . . . 4, 5, 7 Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -iii- Case No. CV 11-1012 RS Shelley v. Kraemer (1948) 344 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tesoriora v. Syosset Central Sch. Dist. (E.D.N.Y. 2005) 382 F.Supp. 2d 387 . . . . . . . . . . . . . . . 2 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) . . . . . . . . . 4 U.S. Supreme Court in Regents of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997) . . . . . . . . . . . . 8 University of California Regents v. Bakke (1978) 438 U.S. 265 . . . . . . . . . . . . . . . . . . . . . . . 4, 11 Vance v. Spencer County Pub. Sch. Dist. (6th Cir. 2000) 231 F.3d 253 . . . . . . . . . . . . . . . . . . 1, 2 Widmar v. Vincent, 454 U.S. 263 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Williams v. Bd. of Regents of the Univ. System of GA (11th Cir. 2007) 477 F.3d 1282 . . . . . . . . 4 Codes 42 U.S.C. §2000d, et. seq., Title VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 9 42 U.S.C. §2000d-4a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. §2000d-7(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 California Code Regs. Title 5, Section 41301(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 California Penal Code §12556 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 California Penal Code §12556(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 California Penal Code §12556(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 California Penal Code §12556(d)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Miscellaneous Shapiro, James, Oberammergau, (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Russlynn H. Ali, Assistant Secretary, Office for Civil Rights, U.S. Dept. of Education, dated May 13, 2011 at page 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 9 “Dear Colleague” letter, 10/26/2010, U.S. Dept. of Education–Office of Civil Rights . . . . . . 7, 9 Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -1- Case No. CV 11-1012 RS I. BY AUTHORIZING THE MSU/SJP “APARTHEID WEEK” “CHECKPOINT” DEMONSTRATIONS, THE REGENTS HAVE PRIMA FACIA VIOLATED TITLE VI, SINCE THESE ANNUAL DEMONSTRATIONS EMBODY RACIST HATE SPEECH AND CONDUCT NOT PROTECTED BY THE FIRST AMENDMENT First, it is expressly alleged in the Second Amended Complaint that UC Berkeley Dean Poullard admitted that UC directly participated in the design, staging, form, and content of the “checkpoint” demonstrations. (Second Amended Complaint (hereinafter “SAC”), ¶11, endorsed at 4:19-27 of Defendant’s Memorandum (hereinafter “Def. Memo”).) Hands-on approval by UC Berkeley Police of the “imitation” AK47 firearms brandished at the Sproul Plaza “checkpoint” is admitted. These props are “content” that has the fingerprints of UC all over it. Second, it is not denied that the content of the “checkpoint” demonstrations is hate speech, equal in legal odiousness to use of the “N” word, or similar racist and sexist expressions. The Defendant does not deny that the entire MSA/SJP “checkpoint” presentation is a racist passion play of the worst sort, which like the notorious anti-Semitic performances of Oberammergau, Bavaria: “portray Jews as bloodthirsty and treacherous villains. . .” Oberammergau, James Shapiro (2000) at page ix. However, unlike the Oberammergau Passion Play, which is performed on a traditional pay-to-view stage setting, the Regents have allowed the MSA/SJP to present their racist performance in the midst of an important public campus crossroads, and to include interaction, confrontation and violence against students who like these Plaintiffs, did not choose to “buy a ticket” in order to experience the performance. Plaintiffs are as entitled to their day in court regarding this Regents’ sponsored racist hostile environment, just as the many Black, female, and gay students, who have received a full judicial hearing when they have complained under Title VI and IX racism and harassment directed by fellow students. Recent decisions of the Ninth Circuit and other federal courts clearly confirm a liberal view in favor of the complaining students having their day in court on disputed issues of school administration “deliberate indifference” and the actionable nature of the alleged Title VI or IX hostile environment. Monteiro v. The Tempe Union H.S. Dist. (9th Cir. 1998) 158 F.3d 1022, 1032-1035; Flores v. Morgan Hill USD (9th Cir. 2003) 324 F.3d 1130; Vance v. Spencer County Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -2- Case No. CV 11-1012 RS Pub. Sch. Dist. (6th Cir. 2000) 231 F.3d 253, 262; and Jones v. Indiana Area Sch. Dist. (W.D. Pa. 2005) 397 F.Supp.2d 628, 644-46. This line of cases followed the Supreme Court decision of Davis v. Monroe County Bd. of Educ. (1999) 526 U.S. 629, 649, which defined a “reasonable” standard for the test of “deliberate indifference.” At least one federal court has expressed that “deliberate indifference” is a “fact-laden question for which bright line rules are ill-suited.” Tesoriora v. Syosset Central Sch. Dist. (E.D.N.Y. 2005) 382 F.Supp. 2d 387, 399. Vance v. Spencer County Pub. Sch. Dist., supra, 231 F.3d 253 at 260-262. The expressions of concern reflected in letters and public statement attached to the Regents’ current Request to Take Judicial Notice fall far short of what is required for a school administrator to avoid liability under the deliberate indifference standard. Vance v. Spencer County Pub. Sch. Dist., supra, 231 F.3d 253, 260-262 The MSA/SJP checkpoint is slyly embedded in an alleged “agitprop” theatrical reenactment, which only as part of a course curriculum, might validly enjoy First Amendment Protection even with its racist content. Monteiro v. The Tempe Union H.S. Dist., supra, 158 F.3d 1022 at 1026-1032. However, it is not entitled to such status in the form it takes on the UC Berkeley Campus. Dean Pollard’s 3/29/11 email confirmed the physical presentation ensnared a wheelchair bound student, and does not deny that the checkpoint activists confronted and brandished their weapons against Jewish and other students in a violent and hostile manner as alleged in the Second Amended Complaint. Felber was assaulted at that event (SAC ¶12). Fine distinctions as to the legal status of such conduct, such as the differences between spitting at or on another student, or pointing a wooden AK47-look-alike- weapon at a student or actually poking them with it, do not excuse the fact of the hostile environment presented by the frenzied moblike “checkpoint,” as confirmed in the photos attached to the Second Amended Complaint and alleged more fully by Plaintiffs therein. Defendant asserts that this Court is powerless to stop this conduct, claiming that these student groups have “First Amendment Rights.” But the Defendant has an equal obligation to protect the health and safety of Jewish students under Title VI. See Nicole M. v. Martinez Unif. Sch. Dist., 964 F.Supp.1369 (ND, Cal. 1997, Patel, J.) Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -3- Case No. CV 11-1012 RS Courts have long allowed the Regents to create and enforce regulations which prohibit “conduct that threatens or endangers the health and safety of any person” on their campuses. Healy v. James, 408 U.S. 169 (1972); Goldberg v. Regents of the Univ. of California, 248 Cal.App.2d 867 (1967). Magistrate Brazil, in College Republicans at San Francisco State v. Reed, 523 F.Supp.2d 1005 (ND Cal. 2007), concluded that California Code Regs. Title 5, Section 41301(b)(7), a statute written specifically for regulations upon California state colleges, passed Constitutional muster regarding conduct on a university campus which constitutes “intimidation” and “harassment” and threatens health and safety is a valid regulation. “With its reach limited to intimidation or harassment that threatens or endangers health or safety, we are inclined to believe that the vast majority of the conduct that this provision would prohibit would not fall within the sphere that the First Amendment prohibits the government from suppressing. Instead, it seems likely that most of the conduct that this regulation prohibits either would have no expressive component or that any such component would be so overshadowed by the risk that the conduct would cause serious harm that First Amendment concerns would have to give way. It is difficult to imagine a substantial sphere of expressive conduct that reasonable people would conclude both (1) constituted “intimidation” or “harassment” and (2) threatened health or safety but that nonetheless deserved protection under the Constitution.” [Emphasis in original.] College Republicans at San Francisco State v. Reed, supra, at 1023. The promulgation and application of public university rules limiting student free speech activities have for years been upheld by the federal courts. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995); Widmar v. Vincent, 454 U.S. 263 (1981); and Healy v. James, 408 U.S. 169 (1972). The MSA, which in connection with the SJP, put on the annual “Apartheid Week” Sproul Plaza checkpoint, is an organization founded by the Muslim Brotherhood. Prerequisite of membership into the Muslim Brotherhood is membership in the MSA. (While the Muslim Brotherhood itself is not on the U.S. Department of State’s Foreign Terrorist Organizations list, Hamas is. Hamas indicates in its charter that it is a branch of the Muslim Brotherhood.) The New York City Police Department has indicated that the MSA is a spawning ground of Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -4- Case No. CV 11-1012 RS domestic violence and terror activities. (See Declaration of Ronald Sandee, previously filed herein..) “[I]nvestigators have revealed how terrorist groups systematically conceal their activities behind charitable, social, and political fronts.” M. Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad, 2-3 (2006) (Yale University Press), quoted by Chief Justice Roberts in Holder v. Humanitarian Law Project (2010) 561 U.S. ____ at ___; 130 S.Ct. 2705 at 2725. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court held that public schools can prohibit free speech if it “would substantially disrupt or interfere with the work of the school or the rights of other students.” See also, Saxe v. State College Area School District (3rd Cir. 2001) 240 F.3d 200, at 211; College Republicans at SF State University v. Reed, supra, 523 F.Supp.2d 1005, 1023; Healy v. James, supra. Whether or not the Regents have met these guidelines are legal issues raised under Title VI. University of California Regents v. Bakke (1978) 438 U.S. 265; Title VI, 42 U.S.C. §2000d, et. seq.; Nicole M. v. Martinez Unif. Sch. Dist., 964 F.Supp.1369 (ND, Cal.1997, Patel, J.). II. ALLEGATIONS THAT FELBER PREMATURELY WITHDREW FROM ATTENDING UC BERKELEY AFTER SHE WAS ASSAULTED IN MARCH 2010 AMPLY SUPPORT HER TITLE VI CLAIM In her May 13, 2011 Statement before the U.S. Commission on Civil Rights, R. Ali, Assistant Secretary, Office for Civil Rights of the U.S. Department of Education, confirmed that a Title VI unlawful “hostile environment” “which is tolerated doesn’t just hurt the students of the harassment. It . . . poisons the school climate. Harassment can directly affect students’ education—grades may do down and students may feel forced to withdraw from school programs. . . .” [Emphasis added.] In Williams v. Bd. of Regents of the Univ. System of GA (11th Cir. 2007) 477 F.3d 1282, 1297, the court held that Title IX hostile environment discrimination can occur even after a student withdraws from school where the university fails to timely respond or take precautions to prevent further attacks. Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -5- Case No. CV 11-1012 RS Under these cases, Felber’s added allegations in the Second Amended Complaint confirm she has stated a Claim for Relief under Title VI even if she is no longer enrolled in the UC system, because the alleged hostile environment, threats and assault drove her from further affiliation with UC (SAC, ¶50). The test enunciated by the Supreme Court is whether the unremedied harassment “detracted from [Felber’s] educational experience [such] that [she was] effectively denied equal access to an institution’s resources and opportunities.” Davis v. Monroe County Bd. of Ed., 526 U.S. 629 at 651. She need not “show physical exclusion” from school, but clearly being assaulted as she was during an authorized on-campus demonstration endorsed by the Regents, her allegation is virtually the same thing. III. THIS COURT CAN FOLLOW SETTLED FEDERAL RULES FOR JUDICIAL OVERSIGHT OF ON CAMPUS VIOLENCE AND HOSTILE ENVIRONMENT HARASSMENT COMMITTED FOR YEARS BY UC AND ASUC REGISTERED AND SUBSIDIZED STUDENT ORGANIZATIONS WHICH INTERFERE WITH THE RIGHTS OF JEWISH STUDENTS, WHICH SUBSTANTIALLY DISRUPT UNIVERSITY OPERATIONS, AND INTRUDE UPON THE PROGRAMS OF THE UNIVERSITY AND THE RIGHTS OF OTHER STUDENTS A. THE COMPLAINED OF SPEECH AND CONDUCT HERE IS NOT PURE INDEPENDENT STUDENT SPEECH BUT RATHER IS CONDUCT AND HATE SPEECH REASONABLY PERCEIVED TO BEAR THE IMPRIMATUR OF THE DEFENDANT Justice (then Circuit Judge) Alito quoted the Supreme Court stating that such schoolsponsored speech includes “school-sponsored publications, theatrical productions, and other expressive activities that students, parents and members of the public might reasonably perceive to bear the imprimatur of the school.” Saxe v. State College Area School District, supra, 240 F.3d 200, 213-214, quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 270-271 (1988) The agitprop pseudo “Israeli” checkpoint reenactments, blockages, and religious and racial interrogations conducted in Sproul Plaza annually for the past four years, fall in that category. First, the sponsoring organizations conducting those activities are not independent student groups, but instead “registered student organizations” (RSOs) licensed and supported financially Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -6- Case No. CV 11-1012 RS by mandatory UC imposed fees on registered students. See ASUC Request for Judicial Notice, Doc.25, Exhibits A-F. Second, the specific Apartheid Week checkpoint actions are permitted and licensed by UC officials, including UC campus police, as admitted by Dean Poullard. These RSOs are expressly authorized by the Defendant not just to conduct their disruptive “checkpoint” demonstrations for the past four or five years, but also to display realistic looking assault weapons as part of the event. Under California Penal Code §12556(a): “No person may openly display or expose any imitation firearm . . . in a public place.” However their use by these RSOs has been expressly allowed and funded by Defendant for the past four years, presumably under exceptions (d)(3) or (d)(9) of §12556: “(d)(3) Used in a theatrical production . . .” “(d)(9) Used for public displays authorized by public or private schools . . .” (Emphasis added.) Any argument that Defendant has no actual notice of the intimidating display of imitation assault weapons at the Sproul Plaza checkpoints is contradicted by the actual event photographs which show the presence of campus police talking to imitation-weapon-wielding student activists during the several events in question. The Regents have for years been directly notified about the excessive and violent Sproul Plaza and other on-campus actions of the SJP and the MSA, but have done nothing to stop them. See, Monteiro v. The Tempe Union H.S. Dist., supra, 158 F.3d 1022, at 1034. Defendant received a letter from a leading Jewish civil rights group in 2008, which expressly detailed the same violent SJP and MSA conduct complained of here. (Zionist Organization of America to Chancellor Robert Birgeneau letter dated 12/30/08 (SAC, ¶32). The Defendant must therefore accept responsibility for authorizing the display of these weapons. Whether as a “theatrical production” conducted on University premises, under §12556(d)(3) or under (d)(9), the display of the imitation assault weapons must be presumed to be “authorized” by Defendant. Therefore this Court should find that the annual Sproul Plaza “checkpoint” activities complained of in the Second Amended Complaint are activities which Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -7- Case No. CV 11-1012 RS students and members of the public “reasonably perceive to bear the imprimatur of the school.” Hazelwood School District v. Kuhlmeier, supra, 484 U.S. at 271. The failure to control and ban such activities is clearly subject to federal court review under Title VI. See, Hazelwood Sch. Dist. v. Kuhlmeier, supra, 484 U.S. 260 (1988); and Bethel School District v. Fraser, 478 U.S. 675 (1986). B. THE COMPLAINED OF SPEECH AND CONDUCT EVEN IF HELD TO BE PURELY STUDENT SPEECH CAN STILL BE HELD AS THE BASIS OF A TITLE VI PRIVATE RIGHT OF ACTION AGAINST THE DEFENDANT BECAUSE IT ENDANGERED THE SAFETY OF OTHER STUDENTS, INTERFERED WITH THE RIGHTS OF OTHER STUDENTS, SUBSTANTIALLY DISRUPTED UNIVERSITY OPERATIONS, AND INTRUDED UPON THE PROGRAMS OF THE UNIVERSITY These guidelines for permissible regulated student speech and conduct are discussed and set forth by Justice Alito in the Saxe opinion. See also, Nicole M. v. Martinez Unif. Sch. Dist., supra, 964 F.Supp.1369; and College Republicans at SF State University v. Charles B. Reed (ND Cal. 2007, W. Brazil, USMJ) 523 F.Supp.2d 1005. Under these guidelines, it is clear that the conduct of the RSOs during recent Apartheid Week at the Sproul Plaza checkpoints is speech and conduct which the Defendant failed to control, and which clearly constituted actionable “hostile environment” harassment. The clearest examples are the repeated incidences of interrogation of students as to their religion, race and national origin (“Are you Jewish”) by RSO student activists brandishing “imitation” but realistic looking assault weapons. (See photos attached to SAC; see also the Declarations of Jessica Felber and Brian Maissy incorporated into the SAC as exhibits.) This conduct exceeds by orders of magnitude the level of objectionable anti-Semitic harassment cited as a threshold example by the Office of Civil Rights-United States Department of Education in its “Dear Colleague” letter dated 10/26/2010 cited in UC’s original brief. Moreover, Felber herself was actually assaulted by one of the student activists, was spit on, and another student was seen entangled in passageway tape/barbed wires used in the demonstration. 1 Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -8- Case No. CV 11-1012 RS IV. THE UC REGENTS AND OFFICIALS ATTACK ON THE PLAINTIFFS’ CLAIMS FOR RELIEF ARE WITHOUT MERIT AND SHOULD BE OVERRULED A. THE ELEVENTH AMENDMENT DOES NOT PROVIDE THE REGENTS ABSOLUTE IMMUNITY IN THIS CASE, AND CERTAINLY NOT FROM THE PLAINTIFFS’ TITLE VI CLAIMS At least three reported federal cases not cited by the Regents confirm that the University’s 11th Amendment Immunity is not absolute. Two of these cases are cited with approval by the U.S. Supreme Court in Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 427 fn.2 (1997). These cases in which the Regents’ 11th Amendment Defense was denied were: Genetech, Inc. v. Eli Lilly & Co., 998 F.2d 931, 940-941 (9th Cir. 1993), and In re Holoholo, 512 F.Supp. 889 (D.Ha. 1981). With regard to Plaintiffs’ Title VI claims, the Regents have no sovereign immunity defense since Congress abrogated the States’ sovereign immunity for violations of Title VI that occur after October 21, 1986. 42 U.S.C. §2000d-7(b). Emma C. v. Eastin (ND Ca. 1987) 985 F.Supp.940; Lovell v. Chandler (9th Cir. 2002) 303 F.3d 1039. Title VI of the landmark 1964 Civil Rights Act on which this action is grounded provides: “No person in the United States shall on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. §2000d. 42 U.S.C. §2000d-4a provides that the Regents/UC are clearly bound by §2000d: “The term ‘program or activity’ and the term ‘program’ mean all of the operations of - * * * “(2)(A) a college, university or other post secondary institution or a public system of higher education;. . . .” Paragraph 4 of the Second Amended Complaint alleges that the Regents are “the recipient of federal funds. . .” and that allegation is not denied. Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -9- Case No. CV 11-1012 RS The plain language of §2000d applies to federal program participants wherever enrolled the same guaranty of equal protection of the law set forth in the 14th Amendment. In 1986 the Supreme Court held apart from Title VI, that a State could not hide behind the shield of the 11th Amendment from federal court oversight over a racially biased administration of state education programs federally funded and endowed by a federal land grant program going back to the earliest days of the United States. Papasan v. Allain, 478 U.S. 265 (1986). This ruling was based on the equal protection guaranty of the 14th Amendment. Id. See also, Clark v. State of California (9th Cir. 1997) 123 F.3d 1267, cert.den. 524 U.S. 937. B. THE REGENTS HAD CONTINUING MULTIPLE NOTICES OF THE COMPLAINED OF HOSTILE ENVIRONMENT The history of the MSA and SJP programs on the Berkeley, Irvine, and Santa Cruz campuses confirm that the Regents and administrators Yudof, Birgeneau and Poullard all had actual and recurring specific notice of the repeated misbehavior by the MSA and SJP. See, Monteiro v. The Tempe Union H.S. Dist., supra, 158 F.3d 1022 at 1034. Defendant’s admission that UC Police responded to many of these incidents only confirms their actual notice of these events. Moreover, prior to commencement of this action, Plaintiff Maissy exchanged detailed email communications with Dean Poullard endeavoring to induce a suitable and adequate response to the present crisis. President Yudof and Chancellor Birgeneau were also sent a detailed letter from a leading Jewish civil rights organization, the Zionist Organization of America (ZOA) on December 30, 2008 detailing the same SJP/MSA misconduct as complained of here. (Zionist Organization of America to Chancellor Robert Birgeneau letter dated 12/30/08. (SAC ¶32.) The Regents’ responses fall far short of what Title VI mandates university administrators must do when faced with such allegations. This is clear from the October 26, 2010 “Dear Colleague” letter in which the U.S. Department of Education, Assistant Secretary for Civil Rights, Russlynn H. Ali, sets out in detail a high school scenario of an anti-Jewish hostile environment, including graffiti, swastikas, name calling and racist remarks. Ali confirms that Title VI protects Jewish students on the basis not: Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -10- Case No. CV 11-1012 RS “solely on religion” but also “on the basis of actual or perceived shared ancestry or ethnic characteristics. . . . These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics.” Id. Ali explains that such harassment cited “negatively affected the ability and willingness of Jewish students to participate fully in the school’s educational programs and activities.” Noting that in the example, the school officials wrongly deemed the harassment “teasing” (as here, Poullard persists in deeming the brandishing of assault weapons at Sproul Plaza to be “protected free speech”), Ali suggests a minimum course of corrective action including: “counseling the perpetrators, publicly labeling the incidents as anti-Semitic, publicizing the means by which students may report harassment, providing teacher training, and creating adopting courses on the history and dangers of anti-Semitism.” Id. at page 6. Nothing like this is present in the Regents’ responses. Unfortunately, Dean Poullard, President Yudof and Chancellor Birgeneau have persisted not only in denial of the crisis of anti-Semitic conduct on campus, but in actively and intentionally allowing its worst manifestations to continue unabated. As alleged in detail in the SAC and the attached photographs, the Defendant has allowed at least four years of “Apartheid Week”–Sproul Plaza–MSA and SJP activities in which those students were authorized under California Penal Code §12556 to openly brandish “imitation” but realistic looking assault weapons, while aggressively confronting and interrogating students with a challenge: “Are you Jewish?” Such conduct is prima facia “severe, pervasive and objectively offensive harassment” which no student at UC of any ethnic, racial or religious affiliation should have to endure. Far more than “deliberate indifference” to serious acts of harassment and violence has been alleged and will be proven here on the parts of the Defendant. Davis v. Monroe County Bd. of Ed., 526 U.S. 629 at 650 (1999). The Defendant’s argument that they have no duty to protect Plaintiffs from “third-party” interference with their constitutional rights is completely without merit. DeShaney v. Winnegago County Dept. of Social Services, 489 U.S. 189 (1989), confirmed state officials have such a duty when the violent actor is in state custody. Here the duty arises from the fact that the violent Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -11- Case No. CV 11-1012 RS actors are on University of California land over which the University has ultimate control, and that the SJP and MSA are subject to the Regents control and enrollment discipline. In their moving papers, defense counsel belittle the severity of the conduct complained of, and also belittle Plaintiffs’ claims by arguing their “religious practice” or “beliefs” were not impacted. The MSA and SJP armed challenge “Are you Jewish” and the two assaults on Felber, who was identified to her assailant as Jewish by her T-shirt and placard, are offensive and hostile environment misconduct that goes to the heart of unlawful religious and racial endangerment and interference. C. THE ACTIONS AND DELIBERATE INDIFFERENCE OF THE UC DEFENDANTS HAVE VIOLATED PLAINTIFFS’ FEDERAL CONSTITUTIONAL RIGHTS Plaintiffs’ rights to be free from prejudice and violence while themselves lawfully studying, and moving about the UC Campus, are rights enshrined in the Equal Protection Clause of the Fourteenth Amendment. To be free from violence and harassment based on their Jewish identity, while lawfully on a UC campus, are rights guaranteed by the rights to freedom of religion and to the equal protection of the law. University of California Regents v. Bakke (1978) 438 U.S. 265, affirming and reversing Bakke v. University of California (1976) 18 C3d 34; and Prop. 209 (California Civil Rights Initiative); California Constitution, Art.I, §31(a) and 31(f). The equal protection clause of the Fourteenth Amendment bars States from discrimination based on race in federally funded and engendered educational programs. Papasan v. Allain, 478 U.S. 265 (1986). See also, Loving v. Virginia (1967) 388 U.S. 1 (race not a permissible inquiry on a state marriage license application); and Shelley v. Kraemer (1948) 344 U.S. 1 (race not a permissible issue for real property ownership in California). Brown v. Board of Education (1954) 347 U.C. 483, held that race was not a legitimate factor in public school admission, under the equal protection clause of the Fourteenth Amendment. UC students cannot be interrogated at gun point on campus as to their religion, or racial or national identity under the Equal Protection Clause. Plaintiffs’ P+A in Opposition to Defendant UC Regents’ Rule 12(b)(6) Motion [SAC] Regents_TCTA_020112c.wpd -12- Case No. CV 11-1012 RS The DeShaney v. Winnegago County Dept. of Social Services, supra, line of cases cited by Defendant are inapplicable here, because the violent conduct complained of was and continues to be committed on UC-controlled premises, by UC students, and pursuant to UC/ASUC registration and authorization under their own detailed MOUs, Rules, funding, and permission. See, ASUC Request for Judicial Notice, previously filed, and California Penal Code §12556. In the Second Amended Complaint it is also alleged that Plaintiff Felber was targeted for violent attack because she wore a Jewish identity T-shirt and held a pro-Israel placard in Sproul Plaza. Those non-threatening displays were protected free speech and free exercise activities and should not have led to physical attacks against her. Since they issued campus demonstration and “imitation” firearm display permits to the MSA and SJP activities for their Sproul Plaza actions, the UC Defendants also were violating Felber’s rights under the free speech and free exercise clauses. Respectfully submitted, /S/ Dated: February 1, 2012 By: JOEL H. SIEGAL Attorneys For Plaintiffs
THE LAST WORD OF THE THIRD INTERVIEW-ARTICLE ON BULLYING JEWISH STUDENTS ON CAMPUSES: Profile- Muslim Student Association
The Muslim Student Association at Cal State Fullerton is making quite the impression on campus. The purpose of the club is to increase knowledge, understanding, growth, and awareness of Islam. Open to all individuals regardless of religion, Daily Titan News reporter Marlena Coelho- Sousae had the opportunity to spend some time with this warm and welcoming bunch.
