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UC Berkeley Sued Over Alleged Failure of Improperly Handling Antisemitic Incidents

Suit claims ‘it feels as if the school were condoning antisemitism.’
[additional-authors]
November 30, 2023
Students walk near Sather Gate on the University of California at Berkeley campus (Photo by Justin Sullivan/Getty Images)

The Louis Brandeis Center for Human Rights Under Law announced on Tuesday morning that they are suing UC Berkeley, Berkeley School of Law, and the UC Regents over UC Berkeley’s alleged failure to properly handle antisemitism on campus since Oct. 7 and over Berkeley Law’s failure to take action against student groups that passed bylaws barring Zionist speakers from campus.

The lawsuit, which was obtained by the Journal, states that following the Hamas Oct. 7 massacre, “students at UC Berkeley celebrated this 21st century pogrom with resulting violence against Jewish students. For example, a Jewish undergraduate draped in an Israeli flag was set upon by two protesters, who struck him in the head with his own metal water bottle after he dropped it trying to evade them. The incident was caught on video and publicly reported.” The lawsuit also states that two students alleged that pro-Palestinian protesters disrupted a prayer gathering by Jewish students to “deal with the shock of the Hamas attack” and that pro-Palestinian rallies have blocked “the main entrance to campus.” Additionally, the students alleged that a lecturer ended class early so he could go “on an anti-Israel rant for 18 minutes, with roughly 1,000 freshman as his captive audience.”

“Both students stated that the school does so little to protect Jewish students, it feels as if the school were condoning antisemitism,” the lawsuit states. “They added that officials at the university display a ‘general disregard’ for Jewish students. Indeed, many Jewish students have reported feeling afraid to go to class during these rallies, which take place in Berkeley’s main throughfares — and for good reason. They have little confidence that UC will protect them from antisemitic mobs. On information and belief, following the Oct. 7 attacks, Chancellor Christ told some members of the Berkeley community that her public statement addressing the attacks was not as strong as she would have liked due to her concerns about violence on the campus.”

Another allegation in the lawsuit is that “a number of persons on campus (including Jewish faculty and staff) have also been receiving hate e-mails calling for their gassing and murder. Although these e-mails were reported to the University, it has failed to respond appropriately or in a timely matter.”

Dan Mogulof, assistant vice chancellor for executive communications in UC Berkeley’s Office of Communications and Public Affairs, told the Journal, “While we appreciate the concerns expressed by the Brandeis Center, UC Berkeley believes the claims made in the lawsuit are not consistent with the First Amendment of the Constitution, or the facts of what is actually happening on our campus. The university has long been committed to confronting antisemitism, and to supporting the needs and interests of its Jewish students, faculty, and staff. That commitment was strengthened in 2015, when the university established the Chancellor’s Committee on Jewish Student Life, and again in 2019 when a groundbreaking Antisemitism Education Initiative was launched on the campus. Since the horrific Hamas terror attack on Israel, the university’s administration has worked in close concert with the Initiative’s director and the Committee’s chairperson, and we have benefited from their guidance and input.”

Mogulof added that the university “does not have the legal right to stop demonstrations or expression that many would consider to be offensive. Those demonstrations and expression are protected by the Constitution of the United States. While censoring that expression is not an option, we do understand how upsetting and frightening some of the demonstrations have been for Jewish students, and the university is responding to their impact. We are offering counseling support, arranging academic adjustments for impacted students when possible, and have issued clear statements about the campus’s position, like this one.” The statement Mogulof referred to is a November 3 statement from UC Berkeley Chancellor Carol Christ where she addressed the effect the Israel-Hamas war has had for students on campus. “I have been deeply disturbed and saddened by the many messages I have received from students who have opposing views about the conflict, and similar fears for their safety and well-being on our campus — fears largely borne of condemnable, toxic expression that is particularly rife on social media, and has no place on our campus or in our discourse,” she said. Christ went on to say that she is “dismayed by and condemn[s] the harassment, threats, and doxxing that have targeted our Palestinian students and their supporters” and that she is also “appalled by and condemn[s] any condoning of or making excuses for terrorism, by stereotyping, threats, and the repetition of false, damaging tropes about the Jewish people. I reject calls for Israel’s elimination.”

Rabbi Gil Leeds of the Rohr Chabad Jewish Center at Berkeley was critical of Christ’s statement, contending that Christ issued a stronger statement in response to the 2017 Charlottesville riots. He pointed to how her statement then said in part that “planning is now underway for potentially controversial events on our campus this fall. Paired with our commitment to the First Amendment is an equally firm commitment to the safety of the members of our campus community and their guests. We believe deeply in the value and importance of non-violence, and we will make every effort to deter, remove, or apprehend those who seek to cause harm to others.”

“No such language is employed here,” Leeds said of Christ’s Nov. 3 statement.

He also addressed the part of her statement expressing concern over Palestinian students and supporters being doxed. “I don’t think they’re being doxxed because they’re wearing masks,” Leeds said, “I don’t even know if they’re students.” He added that the protesters have been “shutting down major thoroughfares and blocking people’s ability to pass through.”

Mogulof continued: “We are also continuously conveying to students that if they believe that they have been subjected to antisemitic harassment or discrimination, or believe that expression—whether it be written or spoken— is hindering their education, they must report that immediately to our Office for the Prevention of Harassment and Discrimination(OPHD). When that happens, they have been assured the campus will respond.” Asked by the Journal for the number of reports to the OPHD since Oct. 7, Mogulof replied that there has been “a large increase in reports of harassment, discrimination, and hate/bias incidents since Oct. 7, including allegations of antisemitism and Islamophobia. OPHD sends outreach to impacted parties with resources, rights, and options for resolution, including offers of supportive measures such as assistance with academics and safety concerns.”

He added “The overwhelming majority of these reports are about what is clearly First Amendment protected speech, so they are not actionable from a policy perspective, but we still provide support to any impacted students or employees. The handful of reports of behavior that would violate policy, such as harassment or discrimination, are being investigated and we will work with the impacted person to understand their preferred method of resolution. If we do not know the identity of the respondent or the respondent is not a member of the UC community, which is common, we can still work with the impacted person to remedy and prevent further acts of harm.”

The assistant vice chancellor also claimed that the allegations regarding the emails and that Jewish students are too scared to go to class because they can’t avoid pro-Palestinian rallies on campus are completely baseless. “To date the university has not received a single report of the sort of emails described. We have checked with numerous offices and this is the first anyone has heard of an allegation of that sort,” Mogulof said. “I can assure you that if we have — or if we do — we will respond strongly and quickly. Second, it is not possible to hold a rally anywhere on the Berkeley campus that blocks all alternative routes to a given destination.” Additionally, Mogulof claimed that the university has not received a report about a Jewish prayer gathering being disrupted.

Deena Margolies, an attorney for the Brandeis Center, maintained that they have “evidence to the contrary” regarding the emails. As for the routes, Margolies said that the students have told her that “on the days of some of the really big protests … they had to really go out of their way, and they had to walk through grassy, wooded areas” that were “well off the beaten path” to get to class, making some of them late to class or having to leave earlier than usual to get class. “Some of them were fearful to walk through the protests because there had been altercations,” Margolies said. “The university can deny all they want, it’s sad in and of itself that that is how they want to approach this instead of addressing the anti-Semitism and improving the campus for Jewish students, but we have evidence for everything presented in the lawsuit.”

Gregg Drinkwater, the program director of the Antisemitism Education Initiative (AEI), told the Journal that, compared to other universities across the country, UC Berkeley has been doing “relatively well” in terms of the campus climate since Oct. 7. “Yes, we’ve had issues, yes we’ve had incidents that have been dealt with or need to be dealt with, but I’m glad I’m not at Cornell. I’m glad I’m not at UC Santa Cruz. I’m glad I’m not at some of the other campuses where some of the incidents have been more frequent or more significant,” he said.

However, Drinkwater said that “the general narrative” he has heard from students, faculty and staff on campus is that “people are absolutely concerned around some of the ways that the war is being talked about, that Israel is being talked about, that Jews and their connection to Israel at war are being talked about.” “Different students are experiencing more concerning aspects of that and others less, their comparative experiences are going to be different,” he said. “But people are in general feeling a need and a desire for community spaces and places where they can talk about these issues.” Drinkwater added that there have been “various campus units stepping up since Oct. 7” in that regard.

Drinkwater argued that one area that the university could do better on is messaging. “The initial message into campus around the October 7 incidents was poor, and has improved since then,” he said. He also believes that the university could be “more proactive” with the “timing” of their responses to faculty members — mainly graduate student instructors — “who have been politicizing the classroom … There’s still a learning curve for some campus leadership on how best to support Jewish students and Israeli students,” he continued. “But they’re trying.” He claimed that he has not been met with any “resistance” from anyone in campus leadership when he has educated them on issues of antisemitism.

Leeds, on the other hand, argued that the campus climate was already at a “tipping point” even before Oct. 7 “to go far beyond that” to a level he has never seen in his 17 years on campus, pointing to the assault of a Jewish student during a pro-Palestinian rally for simply wearing an Israeli flag as an example. Leeds claimed that Israeli exchange students were told by their parents in Israel to “stay home … Students didn’t want to go out to class, told not to go out to class by their parents,” he said. “You would think the university would be doing something about that proactively. Students have been reporting it to them and corresponding with them and essentially begging them to intervene and be proactive, and the response has been lukewarm at best, and it’s disappointing for many students.”

The lawsuit also targets Berkeley Law for not taking action against student groups in the school who passed the bylaws barring Zionist speakers from coming to campus in August 2022, which consists of the bulk of the lawsuit. The lawsuit states that there are at least 23 student groups at Berkeley Law that have established these bylaws and that some of these groups are requiring support of the Boycott, Divestment and Sanctions (BDS) movement in order to obtain membership. The lawsuit also alleges that students have to partake in a “Palestine 101” training program in order to volunteer in “a number of Berkeley Law Legal Services organizations” that provide pro bono legal work; additionally, the lawsuit claims that the Berkeley Journal of Gender, Law and Justice bars “Zionists not only from speaking to its members but from publishing in its pages.”

According to the lawsuit, the plaintiffs are members of Jewish Americans for Fairness in Education (JAFE), which is part of the Brandeis Center. A couple of the members of JAFE are Berkeley Law professors who say that they have been unable to speak to these students groups as a result of their bylaws.

“Imagine, in this day and age, asking members of the LGBTQ community to remain ‘in the closet’ as a condition of membership in an authorized student group,” the lawsuit states. “No such imposition is required — or would be remotely tolerated — of other students, who remain free to participate fully in student organizations without disavowing or hiding any part of their identities.”

Regarding the lawsuit’s claims on Berkeley Law, Mogulof shared with the Journal a statement from Berkeley Law Dean Erwin Chemerinsky that read: “Berkeley Law is dedicated and works very hard to provide a conducive learning environment for our Jewish and all of our students.  The complaint filed by the Brandeis Center paints a picture of the Law School that is stunningly inaccurate and that ignores the First Amendment.  For example, student organizations have the First Amendment right to choose their speakers, including based on their viewpoint.  Although there is much that the campus can and does do to create an inclusive learning environment, it cannot stop speech even if it is offensive.”

UC Berkeley and Berkeley Law’s failure to take proper remedial actions in these circumstances amounted to a 14thamendment violation, as the Brandeis Center is alleging that UC Berkeley and Berkeley Law are not evenly enforcing the school’s policies and federal civil rights laws. The lawsuit requests that a judge institute injunctions requiring the university to “to enforce their Policy on Nondiscrimination and their all-comers policy on an evenhanded basis, ensuring that Jewish members of the Berkeley community are protected, with respect to their physical safety and otherwise, from discrimination on the basis of their Jewish identity, including those for whom Zionism is an integral part of that identity.” The Brandeis Center is also requesting injunctions requiring the university to stop “permitting registered student organizations to exclude Jews; funding any student organization that excludes Jews; and granting official recognition to any student organization that excludes Jews” and communicate “to the entire Berkeley community via broadcast e-mail or a similar medium that Berkeley will condemn, investigate, and punish any conduct that harasses members of the Jewish.”

“The antisemitism Berkeley’s Jewish students find themselves embroiled in today did not start on Oct. 7,” Kenneth L. Marcus, who heads the Brandeis Center and is an alumnus of Berkeley Law, said in a statement. “It is a direct result of Berkeley’s leadership repeatedly turning a blind eye to unfettered Jew-hatred. The school is quick to address other types of hatred, but why not anti-Semitism? Berkeley, once a beacon of free speech, civil rights, and equal treatment of persons regardless of race, religion, ethnicity, national origin, gender, and sexual preference, is heading down a very different and dangerous path from the one I proudly attended as a Jewish law student.”

Mogulof, however, argues that the university has already been taking the remedial measures outlined in the lawsuit; he contended that the university has “repeatedly sent the exact message” that the lawsuit calls for and that “we most certainly already have stringent policies that prohibit the exclusion of any student, or person based on their Jewish identity. We are not aware of a single reported incident of anyone at UC Berkeley having been excluded from a student organization based on their Jewish identity. As per policy, we would not recognize a student organization that excluded someone based on their Jewish identity… this must be differentiated  from our belief that student organizations cannot, as per the First Amendment, be compelled to invite speakers they do not wish to. Excluding someone from attending an event, or joining a group is different from not inviting someone to speak to that group. We would not and could not, for example, compel a Jewish student group to invite anti-Zionist speakers to their gatherings.”

UC Berkeley student Hannah Schlachter told the Journal, “My hope is that this lawsuit will bring systemic and cultural change at UC Berkeley. I’m appreciative of past efforts the university has made and their commitment to upholding free speech. At the same time, we are seeing that the university is not enforcing policy when there are issues affecting Jewish students. This, to me, is discrimination against a targeted group, not free speech.”

Another student, Danielle Sobkin, told the Journal, “This lawsuit against UC Berkeley is more than just a legal battle; it’s a cry for the fundamental change that is desperately needed on our campus. For too long, Jewish students at UC Berkeley have faced the challenges of antisemitism, which pervades both our academic and social environments. This persistent issue impacts us deeply, affecting our educational experiences and our sense of belonging. By taking this step, we aim to send a clear message to the university administration: our concerns are real, our voices need to be heard, and we are committed to fighting for a systematic transformation. We hope this lawsuit serves as a wake-up call, ushering in an era of greater understanding, respect, and inclusion for Jewish students at UC Berkeley.”

Both Schlachter and Sobkin are members of JAFE, but are not listed as plaintiffs in the lawsuit.

“We do understand how upsetting and frightening some of the demonstrations have been for Jewish students,” Mogulof told the Journal. “We do not dispute how the students cited in the lawsuit feel, or what they are personally experiencing. That is why we have gone to great lengths to respond to the needs and interests of our Jewish students who are expressing concern, dismay, and fear. That is why the Chancellor’s most recent message condemned all forms of antisemitic expression. And, that is why we will continue our efforts to educate students about the legal impossibility of censoring or punishing speech protected by the Constitution, no matter how offensive and disturbing it may be to some people.” However, Mogulof said the university “strongly” disputes allegations “that we have turned a blind eye to the impact and/or reports of antisemitic expression. The university is being accused of a failure to respond, yet we cannot respond to reports that were never made. All the university can do is reiterate our promise to students: If they believe they have been harassed or discriminated against because of their Jewish identity, the university will absolutely respond to their reporting of any and all incidents of that sort.”

Berkeley Hillel Executive Director Rabbi Adam Naftalin-Kelman told the Journal, “This administration has been proactive in supporting Jewish life on campus, and is working in partnership with Hillel. At the same time, I believe — and the campus has acknowledged — that there is more to do in order to support Jewish students’ experience on campus. A number of the details in the complaint are from last year, and many of those complaints have been remedied. As the central address for Jewish life on campus, I am grateful and appreciative that Hillel has been able to be a partner with and a source of guidance for helping the university to address the other aspects of the complaint that have not been remedied. Together, we want to continue to help make our campus a safer and more inclusive community for Jewish students.”

The UC regents has not responded to the Journal’s request for comment.

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