California State University Settles Discrimination Lawsuits with Jewish Students

Category: Education Matters
Date: May 1, 2019 04:23 PM

In March 2016, the Jewish student group Hillel at San Francisco State University arranged for the mayor of Jerusalem to speak at an event on the University’s campus. Hillel gave University administrators nine days’ notice prior to the event and recommended the University create a plan to address protestors at the event. A student secured permits and a room for the event.  The University assigned the event to a room in a building in the heart of campus.

A few days later, an administrator informed the student that the original room was no longer available, and the only available room was in a building in a “remote and poorly-known” location. The alternate room required a $356 fee.

Prior to the event, Hillel communicated with the University’s Police Department. The Police Department informed Hillel it expected protesters and intended to erect barriers and have a designated protest area outside the event. Hillel asked the Police Department about what types and levels of disruption at the event would trigger ejections, but the Department did not respond. The Police Department did tell University administrators they should consider having a designated counter-protest area and that if there was a disruption, the police would need a Citizen’s Arrest form signed by someone from Hillel in order to remove people from the event.

Ultimately, a group of student protestors disrupted the event by chanting and shouting, and using sound amplification devices prohibited by the University’s student conduct code. The Chief of Police approached the protestors and asked them to leave, but they ignored him. Other University administrators and staff declined to take any steps to stop or remove the protestors despite the existence of the “free speech zone” set up outside the event. One administrator issued a “stand down” order that prevented the police from taking any affirmative actions to stop or remove the protestors.

After the event, the University investigated the protest and concluded the protestors’ use of amplified sound violated University policies. The investigative report concluded the administrators’ refusal to engage the protestors and the fact that only one administrator told the protestors to stop meant the administrators “impliedly sanctioned” the disruption.

The following academic year, the University and some student groups sponsored a student “know your rights” fair. Event organizers invited Hillel, but later changed the registration deadline with the intention of excluding Hillel from the event. Hillel students were ultimately excluded from the event and stated the University knew about this exclusion and did nothing to stop it.

Subsequently, three Jewish current or former University students and three Jewish community members filed a lawsuit against the University alleging the University and its administrators violated their rights to free speech and assembly under the First Amendment, denied them equal protection guaranteed by the Fourteenth Amendment, and discriminated against in violation of Title VI of the 1964 Civil Rights Act based on the events in the mayor’s speech protest and the student information fair.

The University filed a motion to ask the court to strike the lawsuit because it was confusing, poorly organized, and full of redundant and immaterial information. The trial court ruled that the lawsuit did contain some clear allegations that put the University on notice of the claims asserted and underlying facts. Therefore, the trial court denied the motion to strike.

Alternatively, the University filed a motion to ask the court to dismiss the lawsuit because the University was immune from lawsuits for constitutional claims and the named administrators are not liable for damages on the constitutional claims in their official capacities.

The court examined each cause of action. The court ultimately found the students and community members failed to allege facts showing the administrators acted because of the content of students’ or community members’ speech or views. The court dismissed the claims that the University violated its First Amendment rights.

The court also found the students and community members failed to allege that the University and administrators removed student protestors or instructed the police to do so in similar circumstances, but did not do so in this case because of the students’ and community members’ Jewish identity. The court also found that the lawsuit failed to allege facts that supported the claim that University administrators had the power to require Hillel’s participation in the student information fair or that administrators acted with the specific intent to deprive the students of their equal protection rights because of their Jewish identity. Accordingly, the court dismissed the equal protection claims.

Finally, the court held that the students and community members failed to adequately allege a Title VI violation. The lawsuit did not show that Jewish students suffered severe, pervasive, and objectively offensive discrimination. The students and community members admitted that the University responded to issues raised at the mayor’s speech event and the student information fair.  The court found that the lawsuit did not show these responses were clearly unreasonable. Finally, the students failed to allege facts showing they were denied educational benefits. The court dismissed the Title VI claims.

Overall, the court dismissed the lawsuit but allowed the students and community members to amend the complaint within twenty days.

Subsequently, the students and community members amended the complaint by adding new student plaintiffs and dropping some administrators, but the lawsuit maintained the same causes of action. The court again ruled the acts described in the lawsuit did not adequately allege a violation of federal anti-discrimination laws so that liability may be imposed on the University, its administrators, or its faculty. As a result, the court dismissed the lawsuit without leave to amend.

However, the plaintiffs continued to fight and threaten litigation based on issues stemming from the student information fair. To finally end the litigation, the University and students agreed to a settlement with the following terms:

•    The University will issue a public statement affirming that “it understands that, for many Jews, Zionism is an important part of their identity;”

•    The University will hire a coordinator of Jewish Student Life within the Division of Equity & Community Inclusion and dedicate suitable office space for this position;

•    The University will retain an independent, external consultant to assess the University’s procedures for enforcement of applicable CSU system-wide antidiscrimination policies and student code of conduct;

•    The University will assign all complaints of religious discrimination to an independent, outside investigator for investigation for a period of 24 months;

•    The University will allocate an additional $200,000 to support educational outreach efforts to promote viewpoint diversity and inclusion and equity on the basis of religious identity; and

•    The University will allocate space on campus for a mural, paid for by the University, designed by student groups of differing viewpoints that were the subject of the litigation should such student groups elect to participate in the process.

Mandel v. Bd. of Trustees of California State Univ. (2018) __ F.3d __ [2018 WL 5458739], app. dism. Mar. 29, 2019.

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