The UCLA ruling makes clear ‘if you allow this kind of exclusion and discrimination against your Jewish students, you’re violating the Constitution.’
A Los Angeles district court judge’s ruling Tuesday that the University of California, Los Angeles, must not allow student activists to prevent their Jewish classmates from accessing campus buildings has the potential to reverberate beyond the university’s grounds.
Several lawyers involved in suits against institutions of higher education that have permitted harassment or discrimination against Jews in their schools told National Review that the injunction filed against UCLA may be a watershed moment in the ongoing legal battle against antisemitism.
“I do think it’s a big deal,” said Becket Fund president and CEO Mark Rienzi, whose organization represented the UCLA plaintiffs. “It’s the first such injunction in the country. I think it is a really important signal to send to all the public colleges and universities and institutions in the country that, if you allow this kind of exclusion and discrimination against your Jewish students, you’re violating the Constitution.”
The constitutional aspect of the case Rienzi mentioned is the Free Exercise Clause in the First Amendment. At UCLA, anti-Israel encampment organizers would not allow students to pass through or enter buildings they had blocked unless those students pronounced their opposition to Israel’s existence.
The Free Exercise Clause prohibits government entities — in this case a public university — from interfering with an individual’s right to religious belief and practice.
Given that support for Israel’s existence is a core tenet of Jewish religious belief, the encampment amounted to creating Jew-free zones only traversable if Jewish students disavowed their faith, Judge Mark C. Scarsi ruled. He called the practice of creating Jew-free zones “so unimaginable and so abhorrent to our constitutional guarantee of freedom,” and blasted UCLA for trying to duck responsibility.
Lori Lowenthal Marcus, legal director of the nonprofit organization the Deborah Project, told National Review that while the use of the Free Exercise Clause in this suit may not be applicable to some other cases, many of the principles in Scarsi’s ruling would still apply.
“It’s pretty specific because Jews were prevented from participating in the educational opportunities to which they were otherwise entitled, and we have not had physical barring of students — because they’re Jews — from classrooms or the library in most other instances,” she said. “That was perfect for this case but may not be applicable in others. However, the judge recognizing that it was a sincerely-held religious belief is big. Jews’ obligation to support Israel as a sincerely-held religious belief is useful everywhere.”
Scarsi noted in his ruling that the Faculty for Justice in Palestine chapter at UCLA argued that no student “was denied entrance to the Palestinian solidarity encampment based on their identity,” employing an often-used defense that holds that Zionism is solely a political opinion. However, Scarsi wrote, the “assertion that no one was excluded from the encampment based on identity” does not address the plaintiffs’ assertions that support for Israel is an important part of their Jewish faith.
“People often say, ‘Well, you have the Jewish Voice for Peace folks; those Jews are anti-Israel. They’re anti-Zionist,’” Lowenthal Marcus said. “They’re anti-Zionist for political reasons, but that’s not part of their religious belief. Part of this is that the word ‘Zionist’ is used to attack Jews because people know they can get away with it.”
Kenneth Marcus, a former Department of Education official who founded and leads the Brandeis Center, agreed. He told National Review that the ruling, though not a cure-all, is a good start.
“For many years, we have tried to demonstrate to a variety of public officials that Zionism is an integral element of Jewish identity and should be treated as such,” Marcus said. “As such, a rule against Zionists should be treated as a rule against Jews. When Zionists are thrown out of student organizations, it is clear that it is Jews who are being excluded.”
“This decision is important,” he said, “because it recognizes that a commitment to Israel is an element of Jewish identity. It is not merely a political belief, it is not merely a viewpoint. It is an aspect of identity that is legally very important and should be very influential.”
Because the UCLA case dealt with religious belief rather than a broader description of Jewish identity, the ruling is not all-encompassing, he said.
“This decision has a peculiarity about it, because it was brought by a distinguished civil-liberties organization, not a group focused on antisemitism,” Marcus said. “For that reason, it stresses religious belief and provides protections to those Jewish students for whom Zionism is core to their faith. There are many such Jewish students. There are also, however, many Jewish students for whom Zionism is an integral part of their cultural identity as Jews. It is much less clear or explicit that this decision protects them to the same extent.”
“The next important step,” he said, “will be for the courts to clarify that the rule in this case applies not only to religious Jews but to all Jewish students, because there is no Jewish student who should be denied access to educational opportunities that are available to non-Jews.”
While the UCLA case dealt specifically with religious Jews, Rienzi argues that the Free Exercise Clause’s principles would also apply to Jews who consider support for Israel to be a vital element of their cultural identity.
“I don’t think I’d read too much into the fact that these plaintiffs are religious and that religious liberty is the thing that worked here,” he said. “UCLA is not going to be weeding out Jews at the edge of the campus and say, ‘Okay, the religious ones get to go through, but we can still keep the secular Jews out.’ That’s not happening. So, functionally, this is a win for everybody.”
Another important factor in this case, the legal experts said, is that UCLA’s position was that student activists, not the institution itself, had established the encampment. Therefore, UCLA argued, it should not be held responsible for the Jewish students’ inability to access several campus buildings.
As Scarsi put it, UCLA argued “that Plaintiffs lack standing because ‘they have not pleaded facts demonstrating that UCLA would be the cause of any future injury that they might suffer, such that an injunction directed at UCLA would redress those alleged injuries.’”
However, he continued, “the injuries are not simply the exclusion of Plaintiffs from certain of UCLA’s ordinarily available programs, activities, and campus areas. The injuries result when Plaintiffs are excluded from certain of UCLA’s ordinarily available programs, activities, and campus areas and UCLA still provides those programs, activities, and campus areas to other students knowing that Plaintiffs and students like them are excluded based on their religious exercise.”
Lowenthal Marcus said the idea that the university can be held responsible for its lack of action on discrimination on the part of students may prove essential to future cases.
“I can’t tell you how many times I have heard from administrators — K-through-12 and on college campuses — that they don’t censor their students,” she said. “But it’s their legal obligation to step in when [some students] are actively harming other students through discrimination or harassment.”
The court held that UCLA may not hold classes or provide activities or other opportunities for students if some are prevented from participation on the basis of religious belief, as was the case during the period of time in which the encampment stood.
In a statement issued after the ruling, UCLA spokeswoman Mary Osako indicated that the university would not accept the decision.
“UCLA is committed to fostering a campus culture where everyone feels welcome and free from intimidation, discrimination, and harassment,” Osako wrote. “The district court’s ruling is improper and would hamstring our ability to respond to events on the ground and to meet the needs of the Bruin community. We’re closely reviewing the Judge’s ruling and considering all our options moving forward.”
UCLA has since appealed the ruling.
While the university has not elaborated on what Osako meant with her statement that the ruling “would hamstring [UCLA’s] ability to respond to events on the ground and to meet the needs of the Bruin community,” it may continue to claim that the school should not be held directly responsible for students’ blocking their Jewish classmates from accessing buildings.
For Marcus, the decision to appeal is an abdication of the university’s duty to its students and, ultimately, a futile gesture.
“The university is just wrong, and they’ve been proven wrong, and they should have the grace to acknowledge this,” he said. “I would have thought that the regents would have the moral responsibility to acknowledge their defeat and to resolve the matter through some form of settlement. At this point, it is deeply disappointing that the regents are making the decision to fight the Jewish community on this through the courts of appeals.”
“They’ll lose again,” he said, “but in the meantime, they are missing an opportunity to take leadership, and instead will ultimately be dragged into making the sort of decisions that they should have made through their own ethical decision-making.”