Saturday, December 24, 2011

No Free Exercise or Title VI Claims Shown In Campus Anti-Israel Activity

In Felber v. Yudof, (ND CA, Dec. 22, 2011), a California federal district court rejected claims by a Jewish student and a recent Jewish graduate of the University of California Berkeley that university officials have permitted "a dangerous anti-Semitic climate" to develop on University of California campuses.  Plaintiffs claim that officials have failed to adopt policies and procedures to protect Jewish students from threats and harassment by two student groups, the Muslim Student Association and Students for Justice in Palestine. In particular, the complaint focuses on harassment by these student groups during the anti-Israel "Apartheid Week" in 2010.  Rejecting plaintiffs' free exercise claim, the court held that even if anti-Semitic acts can be deemed an interference with the free exercise of religion, University officials have no constitutional obligation to prevent private parties from interfering with the constitutional rights of others.  The court also rejected plaintiffs' claims under Title VI of the 1964 Civil Rights Act. While Title VI might obligate the University to regulate the conduct of other students, to succeed plaintiffs would need to show conduct that is, “so severe, pervasive, and objectively offensive that it denies its victims the equal access to education.”  Here much of the conduct was political speech; much of it took place outside the presence of plaintiffs; and plaintiffs have not alleged denials of access to the University's educational services in any meaningful sense. Finally plaintiffs have not alleged that University officials acted with deliberate indifference. In dismissing the Title VI claims, the court gave plaintiffs' the right to file an amended Title VI complaint against the Regents and the individual defendants.

By deciding the case on these grounds, the court largely avoided having to deal with two other difficult legal issues that might be posed: (1) When does anti-Israel activity become anti-Semitism?; and (2) Does the prohibition in Title VI against racial (but not religious) discrimination in access to federally funded educational programs cover anti-Semitic denials? (See prior related posting.)

The University issued a release on the decision, saying in part: "UC Berkeley is committed to maintaining an inclusive and respectful campus environment that is safe and welcoming for everyone, without regard to religion, race, ethnicity or ideology. The university is also committed to enforcing the law and protecting the rights of free expression for every single member of the campus community, and we are pleased that the suit has recognized our efforts in this area."