Published 7/16/24 by Law360; Story by Jake Maher Jewish organizations suing the University of California, Berkeley, and its law school for allegedly tolerating an antisemitic culture on campus fought to keep their suit alive this week in the face of a motion to dismiss, maintaining their claims are ripe despite UC Berkeley’s “bold misreading” of the case. UC Berkeley argued in June that the case should be tossed because the university had not had time to internally address some of the incidents cited as evidence of antisemitism in the suit, such as a tent encampment and the blockade of a gate on campus protesting Israel’s military efforts in Gaza. But the Jewish organizations told a California federal court in an opposition brief Monday that Jewish students have long faced a “constant drumbeat” of connected hostile incidents that the school has failed to effectively address. “Defendants paint the suit as one alleging a series of discrete incidents. Wrong — it is a suit alleging defendants’ failure to respond in any meaningful way to a longstanding hostile environment,” the Louis D. Brandeis Center and Jewish Americans for Fairness in Education wrote in their opposition brief. “They got the facts and the law wrong,” added L. Rachel Lerman, general counsel for the Brandeis Center, in a Tuesday interview with Law360 Pulse. She said that, assuming all facts in the complaint are true, it is “abundantly clear” that the plaintiffs have stated a claim and that UC Berkeley is “mistaken” in its ripeness argument: The situation at UC Berkeley is continuing to get worse, with issues possibly on the horizon in the new school year, Lerman said, so the court cannot give the school even more time to pursue its ineffective strategies. Lerman pointed to comments made by University of California President Michael Drake in November 2023 stating that students have faced “outright violence.” “Usually you would expect an immediate response at that point,” Lerman said. In court papers, the plaintiffs also pushed back on UC Berkeley’s argument that handling the dispute in court would restrict free speech and effectively put the court in charge of administrative functions on campus. Antisemitic speech is not legally protected, the plaintiffs countered, and they are not demanding specific remedies but rather for the court to make UC Berkeley live up to its own antidiscrimination policies. “While the law protects universities from judicial interference with campus administration by allowing the university to select the means to curtail a hostile environment, it does not permit universities to select responses that are demonstrably ineffective,” the plaintiffs wrote in Monday’s opposition brief. The plaintiffs’ original complaint from November accused UC Berkeley of fostering the “long-standing, unchecked spread of antisemitism” by allowing student groups to use their bylaws to ban those who hold Zionist views — which they argued violates the U.S. Constitution and federal anti-discrimination laws. The plaintiff groups amended their complaint in May to include claims stemming from more recent events on campus, including a blockade of Sather Gate and what they described as a riot at an event featuring an Israeli Defense Force officer in February. They also alleged that a group known as Law Students for Justice in Palestine conducted an antisemitic harassment campaign against Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. UC Berkeley moved to dismiss the case on the grounds that the plaintiffs were seeking to turn a dispute over student group bylaws into an “open forum for litigating incidents at UC Berkeley as they hit the news,” in many cases before the school had had a chance to respond to those incidents. UC Berkeley further claimed that the complaint did not manage to allege that the school had shown” deliberate indifference” in its response to the alleged antisemitism. The plaintiffs, however, countered that the question of deliberate indifference is normally decided on a full factual record at the summary judgment stage. Even if it were not too early to decide on that, they argued, the details in their complaint means that their allegations “go far beyond plausibility.” Representatives for UC Berkeley declined to comment on Tuesday. The plaintiffs are represented by John V. Coghlan and Tara Helfman of Torridon Law PLLC, Eric M. George and David J. Carroll of Ellis George LLP, and Kenneth L. Marcus and L. Rachel Lerman in-house at the Brandeis Center. UC Berkeley, its law school and the other defendants are represented by Hailyn J. Chen and Bryan H. Heckenlively ofMunger Tolles & Olson LLP. The case is Louis D. Brandeis Center Inc. et al. v. Regents of the University of California et al., case number 3:23-cv-06133, in the U.S. District Court for the Northern District of California.