Jewish Students Refused to Denounce Israel: UCLA Must Ensure Jews’ Access

My mood ebbs and flows with the news. Considering the ongoing war and hostage situation in my beloved Israel, and ever-evolving anti-Semitism around the world, lately, it mostly ebbs.

My mood has lifted a bit though considering recent, positive developments in the anti-Israel, pro-Hamas college demonstration front.

Columbia University’s President Minouche Shafik just resigned. She presided over the first anti-Israel encampment in the U.S., and the spiraling chaos, law-breaking and Jew hatred it inspired. Given the egregious nature of their conduct, Princeton University publicly stated that it will not interfere with criminal proceedings stemming from its students’ participation in anti-Israel encampments.

In other encouraging news, the University of Georgia decided that an on-campus anti-Israel demonstration was not constitutionally protected free speech because the demonstrators didn’t respect the University’s “time, place and manner restrictions.” In additional positive news, a federal judge has ruled that a case against Harvard, alleging its failure to protect Jewish students from anti-Semitic behavior, can go to trial.

These developments have given me hope.

But, in the spirit of guarded optimism, the opening lines of Judge Mark Scarsi’s August 13th opinion in Yitzchok Frankel v. Regents of the University of California gave me more to chew on.

“In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith.” (Italics are in the original.)

I was anguished knowing that this could happen here. I was inspired by the judge’s impassioned words. I had to understand what “refused to denounce their faith” means.

Here are undisputed facts presented to California’s federal court. UCLA’s encampment was on a major thoroughfare bordering several campus buildings. Protestors associated with the encampment blocked students’ access to classrooms. Anti-Israel protesters established checkpoints, and passersby were required to wear a specific wristband to cross them. Students could not traverse the encampment without disavowing Israel. Evidence of continued on-campus demonstrations and disruptions was also presented.

The three Jewish plaintiffs (all UCLA students) argued that they have “a religious obligation to support the Jewish state of Israel” and that “supporting the state of Israel is their sincerely held religious belief.”

The Court concluded that “the encampment led UCLA to effectively make certain of its programs, activities, and campus areas available to other students while UCLA knew that some Jewish students, including Plaintiffs, were excluded based of their genuinely held religious beliefs.”

It found that Plaintiffs have a “colorable claim that UCLA’s acts violated their Free Exercise Clause rights.”

Since it’s been a long time since I attended law school, and I don’t recall much about my Constitutional law classes, I’m glad the court explained that this often overlooked First Amendment clause provides that “Congress shall make no law … prohibiting the free exercise [of religion].”

Citing case law, the court added that this clause “‘protect[s] religious observers against unequal treatment and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’” Further, “[A] State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” (It’s important to know that the First Amendment applies to UCLA because it is a public school and public schools are considered to be an extension of government.)

While the court does not explicitly say this, it seems clear that it viewed the students’ avowed belief in their obligation to support Israel as a religious tenet protected by the First Amendment’s Free Exercise Clause.

This is evidenced in the court’s response to UCLA’s argument that it wasn’t responsible for the exclusion:  “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.”

Furthermore, responding to the Faculty for Justice in Palestine at UCLA’s contention that no one “was denied entrance to the Palestinian solidarity encampment based on their identity,” the court said “[this] does not grapple with an important nuance — that Plaintiffs here assert that supporting the Jewish state of Israel is their sincerely held religious belief.”

As I read this, the court’s handling of the “practice of religion” issue is a big deal. If nothing else, it seems pretty significant considering the oft-repeated claim that vile anti-Israel rhetoric (sometimes with accompanying behavior) is protected by the First Amendment and is not hate speech or anti-Semitism.

Given the likely risk that Jewish students will again be restricted from accessing “ordinarily available programs, activities, and campus areas” assuming protests return in the fall, the court found that Plaintiffs are likely to suffer an “irreparable injury” without a preliminary injunction.

Accordingly, the court granted a preliminary injunction to go into effect on August 15. Provisions include:

If UCLA knows that any part of its “ordinarily available” programs, activities, and campus areas are not fully and equally accessible to Jewish students, it must stop providing them to all students.

UCLA is prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas, whether as a result of a “de-escalation strategy” or otherwise.
For purposes of the court order, all references to the exclusion of Jewish students shall include exclusion of Jewish students based on religious beliefs concerning the Jewish state of Israel.

This order remains in effect unless the court changes its mind or it’s stayed by the U.S. Court of Appeals for the Ninth Circuit. Not surprisingly, UCLA promptly appealed the decision to the Ninth Circuit.

The front page of this Friday’s Wall Street Journal reported that universities are revving up new rules in an effort to control anti-Israel protests. Not to be outsmarted, protestors are attending training, recruiting others to inundate university administrators with calls and emails, and drafting protest handbooks.

On the other side of things, Jewish National Fund-USA, and  many other organizations, are providing critical resources  https://www.jnf.org/our-work/education-and-advocacy/college-campus-resources,  including  Zionist education, https://www.jnf.org/our-work/education-and-advocacy/college-engagement, to give Jewish students and other Israel supporters  a voice.

There’s little question that campus demonstrations will continue for some time with ongoing, gut-wrenching  challenges for students, their families and all those who care about the Jewish people and the state of Israel.

However, keeping in mind Golda Meir’s famous statement that “pessimism is a luxury that a Jew can never allow himself,“ we must hope that this court decision has far-reaching impacts (even to private universities and other institutions), continue to strongly advocate for Israel and, of course, pray that things will get better.