UCLA’s Uphill Legal Battle Defending Jew-Free Zones on Campus

It’s been a rough week for universities that coddled pro-Hamas protest “encampments” in the spring of 2024 — an issue that is likely to return as colleges reopen for the fall semester in the coming weeks. The resignation of Columbia University president Minouche Shafik is one blow, and another came in Tuesday’s decision by Los Angeles federal judge Mark Scarsi enjoining the University of California, Los Angeles from allowing its encampments to effectively exclude Jewish students from full access to the campus. UCLA’s statement on the ruling suggests that it may appeal.

The quotable introduction to Scarsi’s order summarized the nub of the dispute:

Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion. [Emphasis in original.]

Judge Scarsi’s legal theory, at least under the federal Constitution (there were also a number of statutory and state-law claims), rests on five premises:

1. UCLA, as a state university, is a state actor bound to respect the constitutional rights of its students. That includes the equal protection of the law.
2. UCLA students’ equal-protection rights include the right of students to be free of discrimination due to their exercise of religious faith in access to education.
3. The encampment obstructed access to the library and a public quad, and any student who would not renounce support for the existence of the State of Israel was barred from access by the demonstrators and their enforcers.
4. Jewish students submitted evidence that they consider it a religious obligation to support the existence of the State of Israel, and were barred from access due to this belief.
5. UCLA was legally responsible for the Jewish students’ inability to access the library and the quad.

The first two premises are not meaningfully disputed. UCLA did not contest the third, although the protesters filed an amicus brief denying it. The fourth premise may be more controversial (certainly some Jews would contest that an observant Jew must support the existence of a Jewish state), but courts typically defer broadly to evidence of sincerely held religious convictions.

The real action is on the fifth premise: Was UCLA responsible for what it did not prevent from happening? The protesters are not state actors, and under traditional Article III standing rules, an injury must be fairly traceable to the conduct of the defendant — not some intervening third party. Judge Scarsi’s injunction suggests two ways in which UCLA might be responsible. One is that the university could have dismantled the encampment earlier, and did not. A university has control over its premises and an obligation to enforce its rules evenhandedly. If it chose to look the other way while the Klan chased black students out of the dining hall, the equal-protection violation would be obvious.

Going forward, Judge Scarsi ordered UCLA to “instruct Student Affairs Mitigator/Monitor (“SAM”) and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.” The phrasing of this suggests a theory not detailed in the opinion, but which may have been suggested by evidence: that UCLA wasn’t just neglectful but that at least some of its staff were actively complicit in erecting what amounted to a Jew-free zone on campus.

Judge Scarsi’s second theory was that UCLA had a duty not to offer classes at all so long as it knew that the encampment was obstructing Jewish students. He enjoined UCLA going forward that it is “prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.” At least as a federal constitutional rule, the remedial order pushes the envelope a bit, although he cited a pair of Supreme Court cases — Sherbert v. Verner (1963) and Thomas v. Review Bd. of Ind. Emp. Sec. Div. (1981) — holding that the state can’t withhold unemployment benefits from people who were unable to take some jobs due to religious scruples such as pacifism and sabbath observance.

UCLA should see Judge Scarsi’s order as a favor: It gives administrators cover to shift blame to a Trump-appointed federal judge for making it keep the campus free of obstructive encampments in the fall. If it insists on digging in its heels and appealing, it should take the public black eye for fighting for its right to allow parts of the campus to be no-go zones for religious Jewish students. And even if it is able to get some of Judge Scarsi’s order rolled back on appeal, it will be an uphill battle to argue that the university has no obligation whatsoever to prevent bigots from chasing a traditionally persecuted minority group off parts of the campus.