Cal State System Caves on Anti-Semitism Lawsuit

Jewish students throughout the California State University system can finally wear their yarmulkes in peace.

In Spring 2016, San Francisco State University’s Hillel invited Jerusalem mayor Nir Barkat to speak on campus. All hell broke loose.

According to Hillel student president Jake Mandel, Barkat’s speech was disrupted and eventually shut down by, as recounted by Amanda Berman, the woman who would eventually lead the effort to fight back, “a mob of near-violent activists screaming antisemitic epithets through megaphones.”

Mandel described to Berman “a decades-long history of pervasive antisemitism at SFSU, a campus where Jewish students hide their Jewish stars and yarmulkes and where the quad is regularly plastered with chalkings saying ‘Fuck Zionists,’ a campus where antisemitism has been institutionalized and perpetuated from both the top down, at the highest levels of the administration, and the bottom up.”

The next year, SFSU held a “Know Your Rights” Fair for marginalized communities. The school denied Hillel permission to participate.

That’s when the lawsuits started – one in federal court, the other in state court, naming SFSU and its overseer, the California State University system (CSU) as defendants.

According to the federal lawsuit  filed in U.S. District Court of the Northern District of California by The Lawfare Project, the protestors who drowned out Barkat with bullhorns shouted “Get the fuck off our campus,” “Intifada,” and “From the river to the sea, Palestine will be free,” while the campus police were instructed to defer to the protestors and “stand down.”

At the crux of the issue is one that comes up whenever pro-Israel groups are intimidated on campus. Those being bullied call it anti-semitism and those doing the bullying claim they’re not anti-Jewish, only anti-Israel.

On Wednesday, the day before the case was to begin trial in state court, CSU agreed that they’re pretty much the same thing.

CSU has agreed to settle both suits and commit to the following actions:

• Issue a statement stating that it will protect the rights of all students at SFSU, including Jewish and pro-Israel students
• Recognize that “for many Jews, Zionism is an important part of their identity.”
• Hire a Coordinator for Jewish Student Life
• Refer any cases of religious discrimination to an outside investigator • Allocate $200,000 toward “educational outreach efforts to support education outreach efforts to promote viewpoint diversity.”
• State that “persons of all faiths, ethnicities, national origins and viewpoints, including but not limited to Jews, Israelis and Zionists, are welcome on the SFSU campus.”

This was a total capitulation on the part of CSU, as SFSU had originally stated that it “strongly disagrees with the allegations in the complaint.”

The leader of the effort was Amanda K. Berman, previously of The Lawfare Project, and now a consultant to Winston & Strawn on this case.

Berman told the California Globe, “It was a long and drawn out fight that began on April 7, 2016 after the shut-down of the Nir Barkat event. It was years of investigation, Public Records Act Requests, document production and review, analysis, communications with the university and the Bay Area Jewish community — really an incredible amount of work — and that was before we even began drafting the first complaint, in federal court, which was followed by a second, in state court. Our goal has been simple and consistent from the beginning: to ensure that SFSU and CSU understand that their state and federal obligations to protect Jewish students, like all students, mandates that they understand that Zionism is inherent to the Jewish identity for the vast majority of Jews. When Jews are attacked as “Zionists” or held accountable for the ostensible politics and policies of a foreign state thousands of miles from campus, that’s explicit bigotry.”

Meaningful concessions from Cal State

According to Lowell Jacobson, one of the attorneys who worked on the case when he was at W&S (he left the firm in Nov. 2018), the concessions granted by CSU are meaningful.

“This is not a face-saving walkaway settlement, but a real result that secures meaningful benefits for the plaintiffs and the larger Jewish and Israeli communities at SFSU,” Jacobson told the California Globe. “While SFSU’s campus environment and compliance will still need to be monitored, SFSU has finally moved past the empty promises of latter years and has agreed to take at least some first steps toward addressing the very real problems on its campus relating to the environment for Jews and Israelis, and free speech and student conduct.”

Jacobson credits Berman with bringing Winston & Strawn into the mix and cites Larry Hill, normally a tax guy at Winston, for leading the charge on behalf of the plaintiffs.

So how did a superheavy Park Avenue firm like W&S even wind up on this case? Hill told the California Globe, “Many of my ancestors were wiped out in the Holocaust and I have always been very sensitive to anti-Semitism.  I got tired of sitting on the sidelines waiting for others to act so I took it upon myself to fight for what was right and to stem the tide of anti-Semitism; anti-Zionism and efforts of the enemies of the Jewish people and Israel to fallaciously demonize a Nation that stands out as a beacon in the world.”

Jacobson added, “We felt vindicated when Les Wong, the president when these events occurred and when we filed our suits, announced his resignation last year, because we expressly criticized his empty promises and lack of leadership and his mealy-mouthed statements about being unwilling to state whether Zionists were welcome on campus.”

The complicated case featured many twists and turns. The San Francisco Superior Court judge, Richard B. Ulmer, Jr., earned praise as “a former journalist, a real ‘sunlight’ guy.” But some involved in the case expressed exasperation with the Federal judge, Obama appointee William Orrick. One lawyer on the plaintiffs’ side told the Globe, “Judge Orrick screwed us by ignoring binding 9th circuit precedent. We had an appeal going up to the 9th circuit next month, but the settlement includes a dismissal of that appeal as well.” Orrick, who had been a prolific bundler for Obama before being appointed by him, was also faulted for “just ignor[ing] clear standards and 9th circuit precedent on the amended complaint. [He] didn’t really seem to get what was going on, had his own views of what was and wasn’t actionable under the First Amendment. He had no problem giving into the heckler’s veto and assigning events for Jews to shitty and expensive peripheral locations based on concerns about protest activity.”

Hill concludes, “We are delighted with the result.  It is the best outcome that we could have hoped for even assuming we had won hands down at trial.  Our brave student plaintiffs have affected fundamental change at CSU after years of the University being a hostile environment tor Jewish and Israeli students.  These changes will benefit students of all faiths—Jews, Christians, Muslims, Hindus, Sikhs and others. …CSU has acknowledged that Zionism is a fundamental tenet of Judaism.  This repudiates the notion that anti-Zionism is not anti-Semitism. Anti-Zionism is the 21^st century veil for anti-Semitism.  We were surprised that CSU did not engage us in serious settlement negotiations until we demonstrated that Winston & Strawn was incredibly well-prepared and ready to try the case.  We are disappointed that anti-Semitism is not generally treated with the same level of concern as other forms of discrimination. Discrimination of any kind is repugnant and not to be tolerated.”