UC antisemitism cases draw on recent rulings

Plaintiffs suing the Regents of the University of California over antisemitism at UC Berkeley and UCLA invoked recent U.S. Supreme Court and 9th U.S. Circuit Court of Appeals decisions favoring religious plaintiffs in free exercise clause cases to bolster arguments in filings Monday.

The free exercise clause of the First Amendment has been a favorite of judicial conservatives who have cited it to rule for a former football coach in Washington state who prayed on the field after games and a Christian student group that successfully sued a San Jose high school to reinstate the club despite its policy requiring leaders to oppose same-sex marriage.

The lawsuits against UC Berkeley and UCLA are in different stages. Three UCLA students, including two who attend the law school, are seeking a preliminary injunction against the university at a July 29 hearing before U.S. District Judge Mark C. Scarsi of Los Angeles, an appointee of President Donald Trump, over encampments they say prevent Jewish students from crossing campus. Frankel v. Regents of the University of California, 24-CV-04702 (C.D. Cal., filed June 5, 2024).

In San Francisco, U.S. District Judge James Donato, an appointee of President Barack Obama, will consider a motion Aug. 8 by UC Berkeley to dismiss a lawsuit filed by The Louis D. Brandeis Center Inc. over assertions that various campus organizations implemented discriminatory bylaws and allowed Jewish students to be harassed and assaulted.

In both cases, the plaintiffs are relying on the free exercise cases to bolster their claims or, in the UC Berkeley case, fend off a motion to dismiss. The Louis D. Brandeis Center Inc. et al. v. Regents of the University of California et al., 23-CV-06133 (N.D. Cal., filed Nov. 28, 2023).

"Our clients engage in Jewish religious exercise," said Eric C. Rassbach, an attorney with The Becket Fund for Religious Liberty, who represents the UCLA students who sued the university, in a phone interview Tuesday. "There's no way you are allowed to segregate Jews out of part of a UC campus."

In court papers, Rassbach relied heavily on the 9th Circuit's September 2023 decision in favor of the Fellowship of Christian Athletes, which sued San Jose Unified School District for blocking the club for violating its anti-discrimination policy due to its requirement that group leaders must sign a statement that sexual intimacy should only occur within marriage between a man and a woman.

"While it cannot be overstated that anti-discrimination policies certainly serve worthy causes - particularly within the context of a school setting where students are often finding themselves - those policies may not themselves be utilized in a manner that transgresses or supersedes the government's constitutional commitment to be steadfastly neutral to religion," wrote 9th Circuit Judge Consuelo M. Callahan, an appointee of President George W. Bush,, for the 9th Circuit en banc panel majority.

She wrote that Pioneer High School "penalized [the club] based on its religious beliefs." Fellowship of Christian Athletes v. San Jose Unified School District, 2023 DJDAR 9426 (9th Circ., filed June 6, 2022).

Callahan's opinion relied on the Supreme Court's June 2022 decision for a football coach who sued the Bremerton School District and claimed he was fired for leading postgame prayers on the field. Kennedy v. Bremerton School District, 21-418 (S. Ct., filed Sept. 14, 2021).

Both rulings were decided on partisan lines, with appointees of Republican presidents voting against the school districts while Democratic appointees supported them and raised factual questions about the basis of the decisions. While the 9th Circuit has a narrow majority of Democratic appointees, the limited en banc panel that decided Fellowship of Christian Athletes - chosen by lot - had a lopsided Republican majority.

Munger, Tolles & Olson LLP partner Bryan H. Heckenlively, who represents the university in the UC Berkeley case, wrote that the plaintiffs' free exercise claim fails.

"The [complaint] identifies neither official expressions of hostility nor a non-neutral policy attributable to the university," he wrote, citing Kennedy. "Nor does [it] plead facts showing that the university has disciplined another student group for offensive speech about other protected groups, but chose not to punish similar speech about Jewish students."

O'Melveny & Myers LLP partner Matthew R. Cowan, who represents the university in the UCLA case, said the plaintiffs lack standing, cannot show the likelihood of imminent harm and that the requested injunction is vague and impossible to administer.

University attorneys did not mention Fellowship of Christian Athletes in their briefs, raising a question of how the case will be treated by Scarsi and Donato in the upcoming hearings.

UC Berkeley Assistant Vice Chancellor Dan Mogulof declined to comment. A UCLA spokesperson could not be reached.

L. Rachel Lerman, an attorney with the Brandeis Center, said her clients are forced to hide necklaces with a Star of David or kippahs to avoid harassment. "We're relying on the general precept that the government can't favor secular students over religious students," she said in a phone interview.