A federal judge in San Francisco has dismissed a lawsuit filed against U.C. Berkeley by two Jewish students who claimed the school fostered an atmosphere of anti-Semitism. However, the attorney representing the students vowed to fight on.
“Those of us in civil rights law know it’s a long battle,” said attorney Joel Siegal, who plans to file an amendment to his complaint, which effectively would revive the suit. “This is one of those situations.”
The suit, filed in March 2011 by recent Cal graduate Jessica Felber and current undergraduate Brian Maissy, claimed that harassment by pro-Palestinian activists on campus violated their First Amendment rights to freedom of religion and speech.
The suit named U.C. President Mark Yudof, U.C. Berkeley Chancellor Robert Birgeneau and the Associated Students of the University California, charging them with failing to prevent on-campus intimidation of Jewish students.
In dismissing the suit Dec. 22, U.S. District Judge Richard Seeborg said that even if the harassment took place, it constituted protected political speech, according to the Associated Press.
The judge also said the university did not violate the students’ constitutional rights, and did not have a legal obligation to intervene in such disputes between private individuals, such as Felber’s claim that she was intentionally rammed by a shopping cart by a pro-Palestinian activist during “Apartheid Week” events on campus in March 2010.
“The incident … did not occur in the context of her educational pursuits,” Seeborg wrote, according to the AP report. “Rather, that event occurred when she, as one person attempting to exercise free speech rights in a public forum, was allegedly attacked by another person who likewise was participating in a public protest in a public forum.”
Seeborg also rejected the plaintiffs’ claim that U.C. officials were deliberately indifferent, noting the administration “has engaged in an ongoing dialogue with the opposing parties in an attempt to ensure that the rights of all persons are respected, and to minimize the potential for violence.”
In their suit, the plaintiffs cited a history of alleged harassment of Jewish students on U.C. campuses by student groups hostile to Israel, dating back to 1995 and including physical violence and ongoing intimidation.
The suit cites in particular the annual “Apartheid Week,” which in March 2010 featured students brandishing fake guns at “checkpoints” and demanding to know whether passers-by were Jewish.
Felber also claimed she was spat upon by one of the pro-Palestinian activists, but Seeborg, in a footnote to his decision, surmised that spitting at someone could “very well constitute protected expressive conduct depending on the precise circumstances,” though he also added that such action could rise to the level of assault and battery.
Siegal said some good came out of the judge’s ruling, despite the dismissal. Most significantly, the San Francisco attorney believes the judge opened the door to religion qualifying for Title VI protection under the 1964 Civil Rights Act, which dealt with racial and gender bias.
Title VI prevents discrimination by government agencies that receive federal funds, including state institutions of higher learning like U.C. Berkeley.
“This is the first time a judge afforded Jewish students civil rights under Title VI,” he said. “We brought this as a Title VI action; that it was not dismissed based on no standing under Title VI is a big legal victory.”
Siegal said he would file his amendment within the next three weeks.