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
Jewish students today face many challenges on
American college campuses. On top of the difficulties
common to all students, Jewish students
are thrust into the middle of an emotionally
charged and often vitriolic “Israel debate” that
demonizes Israel and its supporters. Over 40% of
Jewish students report anti‐Semitism on their
campus and nearly one‐third assert that anti‐
Israel protests target Jews.1 Jewish students bear
the brunt of sweeping charges of genocide,
apartheid, colonization and racism leveled against
the Jewish state.
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.
Examples are wide‐ranging, and validated by faculty
who frame Israel and Zionism as “a diseased
ideology of ethnocentric nationalism and racism
that we are familiar with from South African
apartheid and European fascism,” as stated by
Yale University professor Mazin Qumsiyeh2 or that
“Zionism is a racist movement…Israel is a racist
state,” as stated by Columbia University professor
Joseph Massad.3
The irony of the racism accusation is that young
Jews are firmly committed to the global world in
which they live. They embrace a world with permeable
boundaries and multiple identities that
celebrate and validate diversity, as do most young
Americans.4 It should come as no surprise that
Jewish students are committed to an expansive
and inclusive vision of the world. Many are raised
in homes that reflect the changing demographics
of the 21st century.
FACING THE CHARGEARCH ON JEWISH STUDENT IDENTITY
ARYEH WEINBERG
INSTITUTE FOR JEWISH & COMMUNITY RESEARCH
FACING THE CHARGE OF RACISM; NEW RESEARCH ON JEWISH STUDENT IDEOLOGY
© 2012 All rights reserved. Instutute for Jewish & Community Research.
1.
INTRODUCTION BY THE RELIGION WRITER PETER MENKIN TO THE SERIES
The multi part series I’ve been working on since July, 2012 came to an end in November, 2012. I expect to continue to post this series on the Jewish community’s complaint regarding bullying Jewish Students on University Campuses, and the new use of Title VI 1964 Civil Rights action to effect this problem of bullying students on University campuses. This standpoint of a large if not majority segment of the established Jewish Community in the United States is a report on a given point of view that finds Israel part of this conversation and also the point of view this behavior represents anti-Semitism.
This introduction introduces to the third of an going series of six or more interviews, each with Addendum consisting of relevant documents on the matter of bullying Jewish Students and the use of Title VI of the Civil Rights act of 1964 in finding redress is an indication of the more strident and tense situation regarding bullying Jewish students on American campuses. This interview is the second of the series and is held with Deborah Lauter, Director Civil Rights, Anti-Defamation League. The conversation via land-line phone from my home office in Mill Valley, California was made to her office in New York City by me, Peter Menkin.
… a collection of voices in interview from American Jewish Community regarding the real concern by them of bullying Jewish students on some University campuses plays a significant role in unmasking anti-Israel actions and behavior as anti-Semitism. That is the Jewish Community thesis and argument brought to legal remedy through Federal Law that is the theme of this series. The basis for this kind of hate and anti-Semitism, bad behavior at best and hateful activity at worst, is evident in the practiced belief that Zionism is an evil belief by those whose actions show them as performing the Jewish bullying.
Claim made by the organization in their words: The Anti-Defamation League was founded in 1913 “to stop the defamation of the Jewish people and to secure justice and fair treatment to all.” Now the nation’s premier civil rights/human relations agency, ADL fights anti-Semitism and all forms of bigotry, defends democratic ideals and protects civil rights for all. A leader in the development of materials, programs and services, ADL builds bridges of communication, understanding and respect among diverse groups, carrying out its mission through a network of 30 Regional and Satellite Offices in the United States and abroad.
INTERVIEW HELD BY PHONE TO NEW YORK CITY: ANTI-DEFAMATION LEAGUE’S DEBORAH LAUTER BY RELIGION WRITER PETER MENKIN
- 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
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?
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 Website is www.adl.org .
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?
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
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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
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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.)
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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
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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.
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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
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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
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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
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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.
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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:
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“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
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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
Uploaded on Dec 4, 2011
DailyTitanOnline
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.
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