Felber v. Yudof

• Citation: 283 Ed. Law Rep. 144,851 F.Supp.2d 1182
• Decision Date: 22 December 2011
• Docket Number: No. C 11–1012 RS.,C 11–1012 RS.
• Court: U.S. District Court — Eastern District of California
• Parties: Jessica FELBER and Brian Maissy, Plaintiffs, v. Mark G. YUDOF, President of the Regents of the University of California, et al., Defendants.

851 F.Supp.2d 1182

283 Ed. Law Rep. 144

Jessica FELBER and Brian Maissy, Plaintiffs,

v.Mark G. YUDOF, President of the Regents of the University of California, et al., Defendants.

No. C 11–1012 RS.

United States District Court,

N.D. California,

San Francisco Division.

Dec. 22, 2011.

Joel H. Siegal, Attorney at Law, San Francisco, CA, Neal M. Sher, New York, NY, for Plaintiffs.

Bradley S. Phillips, Munger Tolles & Olson LLP, Los Angeles, CA, Kathryn Ann Eidmann, Michelle Friedland, Munger Tolles and Olson LLP, San Francisco, CA, Gregory P. Brock, Brock Law Office, E. Mark Himelstein, Himelstein Law Office, Berkeley, CA, for Defendants.

ORDER GRANTING MOTIONS TO DISMISS

RICHARD SEEBORG, District Judge.

I. INTRODUCTION

Sproul Plaza, on the campus of the University of California, Berkeley, was the birthplace of what came to be known as the Free Speech Movement in 1964. To this day, Sproul Plaza remains a place where students and others gather to engage in vigorous and sometimes contentious expressions of political speech. Plaintiffs in this action, one current and one former UC student, allege that certain individuals and organizations have repeatedly exceeded the boundaries of free speech, engaging in conduct that amounts to harassment, intimidation, threats, assault, and even battery, both on Sproul Plaza, and elsewhere on the Berkeley campus and other schools in the UC system.

In this action, plaintiffs seek to hold the University, certain of its administrators, and the Associated Students of the University of California (“ASUC”) responsible for the actions of those individuals and organizations, and to require defendants to adopt certain policies and rules purportedly designed to curtail wrongful conduct by such persons. Because plaintiffs have failed to allege facts supporting a claim that defendants have violated plaintiffs' constitutional or other legal rights, or that they have a legal duty to take further action to control the conduct of other persons, defendants' motions to dismiss ¹ will be granted, with leave to amend in part.

II. BACKGROUND ²

Plaintiff Jessica Felber graduated from UC Berkeley in December of 2010. Plaintiff Brian Maissy remains enrolled as an undergraduate on the campus. Both describe themselves as being of “Jewish ancestry and religion.” Plaintiffs allege that they have been subjected to harassment and intimidation from members of two student organizations, Students for Justice in Palestine (“SJP”) and the Muslim Student Association (“MSA”), also known as the Muslim Students Union.

The centerpiece of the complaint's allegations of unlawful harassment involve an incident that took place during an event held annually on campus known as “Apartheid Week.” Plaintiffs allege that Apartheid Week is organized by SJP and MSA in an effort to compare the policies of the State of Israel with those of South Africa between 1948 and 1993. Activities include setting up informational tables and distributing leaflets on Sproul Plaza, which plaintiffs acknowledge is “certainly protected free speech.” Event organizers, however, also set up “check points,” at which students dressed as soldiers and carrying “realistic-looking” simulated “assault weapons” challenge passing students, demanding them to state whether they are Jewish or not.

During Apartheid Week in March of 2010, Felber was participating in an event called “Israel Peace and Diversity Week,” organized by a campus group to present viewpoints “differing from ‘Apartheid Week.’ ” Felber was holding a placard reading, “Israel wants Peace.” Another student, Husam Zakharia, who has a leadership role in SJP, allegedly rammed a shopping cart into Felber intentionally, causing her physical injuries that required medical attention. Felber had previously encountered Zakharia more than a year earlier at a political rally. On that occasion, Zakharia allegedly spit at Felber and yelled, “you are disgusting.” After these two incidents, Felber obtained a permanent restraining order from the Alameda County Superior Court requiring Zakharia to stay away from her, even on campus. For the remainder of the time Felber was enrolled at UC, however, she recounts being fearful to walk on campus alone.

Plaintiffs insist that this case is “about much more” than Zakharia's assault on Felber. They contend that defendants have tolerated the “development of a dangerous anti-Semitic climate” on UC campuses, and have failed to adopt policies, regulations, and procedures to protect Jewish students from threats, intimidation, and harassment by SJP and MSA. The complaint describes all of the following incidents, and the response to those incidents by UC authorities.

• In 1995, MSA conducted a rally on the Berkeley campus in support of Hamas. Students carried signs depicting the Israeli flag with a swastika in the middle, and some expressly volunteered to serve as future suicide bombers. A Jewish observer was spit on by a demonstrator. Defendantsallegedly issued no effective condemnation.

• In October of 2000, the president of the UCLA chapter of MSA led a crowd of demonstrators at the Israeli consulate in chanting, “Death to Israel” and “Death to the Jews.”

• The first Apartheid Week with a mock checkpoint on the Berkeley Campus was staged by SJP in 2001. Although condemned by the campus newspaper as violating the campus Code of Conduct, similar events were permitted to continue in subsequent years. Defendants allegedly have “done nothing to prevent the continuance of these hostile ‘checkpoints' ” despite complaints from many students.

• In April of 2001, SJP demonstrators were arrested after a six-hour “siege” of a campus building.

• In December of 2001, a member of Chabad, a Jewish religious group at UC Berkeley was assaulted near the Chabad house. The following spring, a window of the house was smashed and graffiti stating, “Fuck the Jews” was painted on the wall.

• In May of 2002, a demonstration sponsored by JSP and MSA at UC Irvine featured mock “body bags” of Palestinians claimed to have been murdered by the Israeli army.

• In April of 2002, newsmagazines published by JSP and MSA at UCLA and UC Irvine jointly circulated a magazine that was highly-critical of Israel and laudatory of Hamas and Hezbollah.

• In 2004, SJP activists disrupted a lecture by Middle East scholar Daniel Pipes, until ejected by campus police.

• In 2007, SJP activists disrupted a speech by author Nonie Darwishspoke, until ejected by campus police.

• In March of 2008, SJP sponsored a “die-in,” in which 30–40 protestors lay on the ground in Sproul Plaza, obstructing foot traffic. Demonstrators' signs accused Israel of starting another Holocaust, and equated Israelis to Nazis. SJP demonstrators have blocked and tried to destroy signs of Jewish students attempting to conduct peaceful counter-protests.

• In November of 2008, during an “Israel event,” SJP protestors disrupted a concert, by draping two Palestinian flags from a balcony over the stage. Campus police responded to the resulting “riot.”

• In January of 2011, SJP and MSA protestors were disruptive at a speech given by the Israeli ambassador, resulting in indictments brought against eleven students by the Orange County District Attorney.

• In May of 2011, during Apartheid Week, a disabled student's wheelchair became entangled in the simulated barbed wired used at a “checkpoint.” When plaintiff Maissy reported observing this incident to defendant Jonathan Poullard, Dean of Student Affairs, the response he received was that although the disabled student had a “moment of difficulty” in passing the barricades, campus police observed that SJP members quickly assisted him.

Defendants in this action are the Regents of the University of California; the President of the Regents, Mark G. Yudoff, the Chancellor of UC Berkeley, Robert J. Birgenau; Dean of Students at UC Berkeley, Jonathan Poullard, and; ASUC. The SJP and MSA chapters at Berkeley are both registered as student organizations. As such, they are entitled to, and do, apply for and receive funding from ASUC.

III. LEGAL STANDARD

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While “detailed factual allegations are not required,” a complaint must include sufficient facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). Dismissal under Rule 12(b)(6) may be based either on the “lack of a cognizable legal theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). When evaluating such a motion, the court must accept all material allegations in the complaint as true, even if doubtful, and construe them in the light most favorable to the non-moving party. Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “[C]onclusory allegations of law and unwarranted inferences,” however, “are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996); see also Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (“threadbare recitals of the elements of the cause of action, supported by mere conclusory statements,” are not taken as true)).

IV. DISCUSSION

A. Constitutional Claims

The first claim for relief of the FAC purports to be brought under...