Lawsuit Against Berkeley Seeks To Discipline University Leaders for Harboring ‘Hamas-Inspired Hatred’

Federal litigation appears to be emerging as the latest tool of civil rights activists to curtail the pervasive antisemitism that, since the start of the Israel-Hamas war, has come to light at elite institutions of higher education in America.In one of the first high-profile lawsuits over the issue, the University of California, Berkeley was sued on Tuesday by Jewish groups denouncing its “longstanding, unchecked spread of anti-Semitism.” A complaint filed by a civil rights nonprofit, the Louis D. Brandeis Center for Human Rights Under Law, accuses the school of violating civil rights protections and constitutional freedoms. “It’s become abundantly clear that my alma mater will comply with federal law only if required to do so as a result of a lawsuit,” the founder of the Brandeis Center, Kenneth Marcus, tells the Sun. The allegations are being wielded against the governing board of the University of California, the University of California Regents, as well as officials at Berkeley, including its president, Michael Drake, and its chancellor, Carol Christ.“This isn’t just about requiring the University of California to correct the problems at that institution,” says Mr. Marcus. “It’s about containing and ultimately reversing some of the ugliest trends we’re seeing in our society right now. This Hamas-inspired hatred that is spreading throughout higher education should be revolting to every person of moral conscience.”The suit builds upon a federal civil rights complaint from 2022, which accused Berkeley Law of harboring “profound and deep-seated anti-Semitic discrimination.” That assertion came after nine student affinity groups at the law school passed bylaws barring invitations to pro-Israel speakers and urged other student organizations to “take an anti-racist and anti-settler colonial stand.”Since then, “the situation has been deteriorating considerably,” says Mr. Marcus. “After October 7, it reached a point where it was clear that we needed to take legal action.” The day of Hamas’s attack, an anti-Israel campus group at U.C. Berkeley, Bears for Palestine, lauded the “indigenous resistance” in a letter that accused Israel of playing “victim.” The lawsuit accuses Berkeley of violating Title VI of the federal Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin at programs that receive federal assistance. It also asserts that the school has run afoul of the First Amendment’s right to freedom of religion and the Fourteenth Amendment’s equal protection clause. The litigation seeks “to establish legal precedents on what antisemitism is in 2023,” says a student at Berkeley’s business school, Hannah Schlacter, who is involved in the suit as part of her effort to spark “cultural change” at the university. “The reason Jewish students like myself are working with attorneys is because we’ve not been taken seriously by the university,” she says. In January, “No Jew Go Away” was written in red marker on a student union building. In February, the student senate defeated a resolution to adopt the International Holocaust Remembrance Alliance definition of antisemitism, which has been adopted by the United States and 30 other countries.The Dean of Berkeley Law, Erwin Chemerinsky, has acknowledged pernicious antisemitism at the school, writing recently, “I am a 70-year-old Jewish man, but never in my life have I seen or felt the antisemitism of the last few weeks.” He said that he had “heard several times that I have been called ‘part of a Zionist conspiracy,’ which echoes antisemitic tropes that have been expressed for centuries.”Mr. Chemerinsky, though, rejected Brandeis’s allegations as “stunningly inaccurate” in a statement to the Sun. “Student organizations have the First Amendment right to choose their speakers, including based on their viewpoint,” he says. “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.”A spokesman for Berkeley, Dan Mogulof, tells the Sun that “as a public university, Berkeley does not have the legal right to stop demonstrations or expression that many would consider to be offensive.” He says the school understands “how upsetting and frightening some of the demonstrations have been for Jewish students” and pointed toward campus counseling services, its statements on antisemitism, and the work of its anti-harassment and discrimination office. While Ms. Schlacter says she sympathizes with Berkeley’s effort to abide by the precedent of the free speech movement, which originated on its campus in 1964, “this lawsuit is not about free speech,” she asserts. “This lawsuit is about the university not enforcing policies when there are issues affecting Jewish students.” “The bigger picture,” Mr. Marcus says, “is that we need to change the culture of higher education in a way that prevents these sorts of situations from occurring or ensures that if they do occur, that administrations do the right thing.”Mr. Marcus has worked to expand protections for Jewish students on college campuses. While serving as the civil rights chief in President Trump’s Education Department, he launched complaints of antisemitism at high-profile universities, which laid the groundwork for Mr. Trump’s 2019 executive order to penalize schools engaging in such behavior. Mr. Marcus left the post following charges that he used it to further his own political agenda.Now, Mr. Marcus is fighting the department he once pioneered. His law center is waging a number of cases against the Office for Civil Rights while pursuing federal and state court lawsuits. “We can’t rely exclusively on any one agency,” he says. “We need to make sure that we will get just resolution regardless of whether the Biden administration does the right thing or not.” This case against Berkeley is the first in which Brandeis is acting as a membership organization to advocate for students and professors whose rights have been violated. This classification grants the center associational standing so that it can advocate for students confidentially and provide them legal standing after they graduate if the case is still pending. “We expect to prevail before the Federal District Court,” Mr. Marcus says. “But if that’s not the case, we certainly are prepared to take this case as far as it has to go, including all the way up to the Supreme Court, if necessary.”

Lawsuit Against Berkeley Seeks To Discipline University Leaders for Harboring ‘Hamas-Inspired Hatred’

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