Jessica Felber was a Jewish student at the University of California at Berkeley in 2010 when she became a fighter against hatred. She graduated in December 2010 with B.A.s in Economics and Legal Studies. A suit was filed by her and Brian Maissy on March 4, 2011 against UC Berkeley for failing to provide a safe atmosphere. Her request for a jury trial was heard on September 22, 2011 at the United States District Court of the Northern District of California. Jessica is waiting for a decision.
Jessica Felber and Brian Maissy are suing the University of California and Berkeley President Mark Yudoff, along with Berkeley's chancellor, the Regents of the University of California, the Associated Students University of California and Berkeley's dean of students for failing to protect them from verbal and physical assaults. In her suit, Jessica exposes the lack of effective action by UC Berkeley in cases of harassment and intimidation by Muslim and pro-Arab student groups, leading to “a dangerous and threatening environment.”
Felber said she was physically assaulted on campus by a Students for Justice in Palestine (SJP) member in March 2010. At the time, she was holding a sign that said “Israel Wants Peace.” Hussam Zakharia, then leader of SJP, deliberately rammed a shopping cart into her back causing her injury that required medical attention. According to Felber, Zakharia did this “to vent his hostility toward the non-violent message stated in her placard and her Jewish identity.”
She was treated for her injuries and later received therapy as a result of the incident. After that, Felber said, she was so intimidated that she was afraid to leave home without an escort and was granted a restraining order against Zakharia. Felber said she already felt intimidated on campus by SJP before that incident. She described an SPJ speaker at an event singling her out and calling her a "terrorist supporter" in front of 100 people.
The assault could have been prevented if campus authorities had taken sufficient care to ensure students' safety, according to the suit. Instead, UC Berkeley policies “fostered and encouraged” pro-terrorist incitement, “turned a blind eye to the perpetrators of illegal activities,” and “failed to effectively discipline the MSA [Muslim Student Association] and SJP for their pro-terrorist programs, goals and conduct; despite having ample notice that such violence was foreseeable.”
By failing to provide security to Jewish and pro-Israel students, UC Berkeley “condoned and allowed the MSA, the SJP and MSU [Muslim Student Union] to threaten, harass and intimidate Jewish students and to endanger their health and safety.”
The lawsuit seeks damages, a five-year ban on MSA and SJP on campus, and a loss of university funding for the groups. The plaintiffs also argue that UC Berkeley must create an independent fact-finding body to handle student complaints of hostile environment situations on campus.
"Defendants assert that this Court is powerless to stop this conduct, claiming that these student groups have 'First Amendment Rights,'" wrote attorney Joel Siegal in response to a defense motion to dismiss. "But these Defendants have an equal obligation to protect the health and safety of Jewish students under Title VI," which requires federally funded educational institutions protect students against discrimination.
The lawsuit claims Berkeley has tolerated years of programming by anti-Israel student groups Students for Justice in Palestine (SJP) and the Muslim Students Association (MSA) despite reports of Jewish students being cursed at, threatened and assaulted.
SJP's stated goal is to promote a "just resolution of the plight of the Palestinians" and employs boycott, divestment and sanctions campaigns as well as mock checkpoints and mock "apartheid walls" on campuses throughout the U.S. to promote that cause.
MSA has a history of supporting radicalism on Berkeley's campus. In 1995, the MSA at UC Berkeley conducted a rally in support of Hamas. In April 2002 the MSA publication at UC Berkeley, Al-Kalima, voiced its support of Hamas and Hizballah. MSA was established by the Muslim Brotherhood in 1963 to serve as a platform to spread Islam and Islamic ideas to college campuses in the U.S.
By continuing to authorize and fund SJP and MSA as official student organizations, the lawsuit alleges, the university allowed itself to become a dangerous and threatening environment for Jewish students. SJP and MSA sponsored "Apartheid Week" events, specifically the mock checkpoints that they stage on campus, create an actionable hostile environment harassment.
According to the lawsuit, the SJP and MSA have previously staged “checkpoints” at which they brandish mock weapons and demand that students state their religious affiliation. The checkpoints are meant to mimic the IDF's checkpoints in Judea and Samaria, at which soldiers check passing vehicles for weapons and bombs. Students at the checkpoints carry "realistic looking assault weapons—'imitation firearms'—as part of the event," ignoring a California statute prohibiting such reenactments unless they are authorized by the school.
The suit also notes that Zakharia and two other SJP activists were cited in 2008 for battery, after disrupting a college by a campus Jewish group and assaulting a Jewish student. SJP members heckled Mideast expert Daniel Pipes and author Nonie Darwish when the two came to speak at UC Berkeley in 2004 and 2007 respectively. SJP activists allegedly shouted “Death to Zionism,” “Zionism is racism,” and “Seig Heil” during Pipes' address.
Declarations by Felber, Maissy, and Berkeley Professor Mel Gordon detail examples of incidents that they felt crossed the line into intimidation and harassment. Each complains that school officials failed to discipline the people involved.
Brian Maissy, a current student, described the fear created by the annual "Apartheid Week" events. Maissy, who wears a yarmulke, said the students with the fake assault rifles yelled, "Are you Jewish?" at him and other passersby. The event occurs at the entrance to campus and is difficult to avoid, Maissy said. University officials did not act to protect the students, he said, and he fears for his safety on campus.
The situation dates back at least a decade, according to Mel Gordon, a tenured theater professor at Berkeley. He described being physically attacked by SJP members in 2001 as they protested outside a campus building. When Gordon tried to go inside the building to teach a class, a student beat, spit upon, and kicked Gordon in the stomach.
Gordon sued his attacker and said he was awarded restitution in the case and a member of SJP was convicted. But, to his knowledge, SJP was not suspended or disciplined by school officials. The university continued to sponsor SJP and MSA as student organizations.
He described a letter he sent to school officials in 2008 after an altercation between members of SJP and the Zionist Freedom Alliance. In it, he said he told the chancellor about his experiences with SJP and urged something be done. He did not receive a response.
Jewish students also complained to school officials in 2008, saying they did not feel that the UC police and faculty were doing anything to curb SJP's intimidation and harassment. The officials denied that there was an anti-Semitic crisis on campus and "actively and intentionally" allowed it to continue, lawyers for the students say.
Felber is represented by civil rights attorney Joel Siegal, and by attorney Neal Sher, a former head of American Israel Public Affairs Committee (AIPAC) and of the Justice Department's Nazi prosecution unit.
Jessica Felber has moved on in her activities and since July 2011 has been West Coast Director for Jerusalem Online University after acting for 11 months as California Campus Coordinator Hasbara Fellowships. JerusalemOnlineUniversity.com was created with a goal of educating individuals about the basics of Judaism, and has since evolved to offer courses on other contemporary issues, such as Positive Psychology and Judaism and Israel Inside/Out.
As part of her responsibilities for Jerusalem Online University, she is also active with Step Up For Israel, an initiative of JersualemOnlineU.com. Step Up For Israel educates Jewish high school students about anti-Semitism and anti-Israeli sentiments on American college campuses before they get to college and how to respond to hatred and violence before they even face it. "Unfortunately, this issue is not widely acknowledged and many universities have remained silent, even in the face of a clear anti-Semitic presence on campus," said Jessica Felber.
Specifics of the complaint and rebuttal by the defense lawyers
The court case brought by Felber provides an interesting contrast in views regarding the law. The plaintiff Felber raises the issue of an atmosphere of intimidation and a dangerous and threatening environment for Jewish students based on repeated acts over time at different campuses of the University of California. The lawyers for the university contend that the law deals only with acts made by individuals against other individuals. If the act did not directly involve the student then it cannot be considered intimidation.
The initial decision that has to be made by the court is whether or not to allow the case to go to a jury trial. The civil rights complaint calls for damages re endangerment of health and safety of Jewish University of California student Jessica Felber.
This case arises from defendants’ tolerance of the development of a dangerous anti-Semitic climate on its campuses and their failure to adopt and implement policies, regulations and student organization procedures to prevent threats, intimidation and harassment by the anti-Semitic/anti-Israel SJP, MSA and MSU, all of which that threatens and endangers the health and safety of University of California’s Jewish students.
A pattern of harassment and physical assaults by members of two Muslim student groups at the University of California, Berkeley crosses the line from allowing free speech into creating a hostile campus environment, an attorney representing two students argued in court papers filed this week.
The defense called for the complaint to be dismissed because:
1. Plaintiffs were not limited in their activities at Berkeley
Plaintiffs did not face a substantial burden on their ability to exercise their religion or any infringement of their ability to assemble to express their views, did not experience “severe, pervasive, and objectively offensive” harassment, were not deprived “of access to the educational opportunities or benefits provided by the school,” and were not treated differently than other students, let alone on the basis of their religion.
2. The actions of the protestors were protected by First amendment protected speech
This lawsuit is in substance an attempt by Plaintiffs to compel UC to restrict the freedom of speech and assembly of its other students, in violation of their First Amendment rights. The UC, however, cannot be liable for allowing its students to engage in speech and assembly that are protected by the First Amendment.
The majority of the incidents described in the Complaint involve the type of political and social advocacy that lies at the core of First Amendment protection, and courts have repeatedly recognized that vigorous protection of free speech is particularly important in the university setting. Indeed, courts that have considered rules enacted to limit derogatory or controversial speech at a public university have routinely struck them down as incompatible with the First Amendment.
That several of the alleged demonstrations involved not only speech but also provocative, expressive conduct does not take the demonstrations outside the First Amendment’s protection. This includes the actions of the protestors in setting up mock checkpoints, displaying mock “body bags” of Palestinians “murdered” by the Israeli army, and holding a “Die-In.”
3. Violent acts were dealt with by law enforcement authorities
When conduct went beyond protected speech and involved threats or violence, then the University was not indifferent. Specifically, the assault alleged by Felber on the UC Berkeley campus on March 5, 2010, by Berkeley student and SJP member Husam Zakharia, was met by a response by law enforcement authorities.
When SJP and/or MSA students disrupted speakers perceived to be pro-Israel or anti-Muslim and a concert organized by a pro-Israel group, law enforcement authorities responded to all of these incidents.
4. Plaintiffs were not personally involved with events
With one exception, these alleged demonstrations and protests were not targeted at either Plaintiff, and Plaintiffs have not even alleged they were present when most of the alleged events took place. Indeed, the majority of the events alleged in the Complaint occurred either long before Plaintiffs enrolled as students at UC Berkeley or at took place at other campuses altogether.
5. Defendants did not participate or have knowledge of incidents
Defendants Birgeneau and Yudof cannot be liable because neither Defendant personally participated in nor even had knowledge of the incidents alleged in the Complaint.
6. Felber is no longer a student
Moreover, all of Felber’s claims for injunctive relief must be dismissed because she is no longer a student at UC and so does not have standing to seek injunctive relief.
Conclusion
We see contrasting views on the responsibilities of university authorities. Felber claims that the university should provide a serene atmosphere on campus for all groups – ethnic, religious, etc. – so these students will be able to concentrate on their studies. The defense lawyers claim that First Amendment rights require the university to allow debate even when this is provocative and aimed at specific religious groups. In any case, the incidents must be directed at the specific individual requesting relief and cannot be aggregated to show an atmosphere of hostility.
Further Reading:
Israel Law Center Launches Student Hotline to Combat Anti-Israel Hostilities on American Campuses
Denis MacEoin fights hatred at Edinburgh University
Aaron Marcus continues the fight against hatred at Rutgers University
US Schools and Universities Re-Empowered to Tackle Anti-Semitism
The Campus War Against Israel and the Jews: Students For Justice in Palestine
