From yesterday's decision by Judge James Donato in Louis D. Brandeis Center, Inc. v. Regents of the Univ. of Cal.:
The FAC [First Amended Complaint] alleges a series of events unfolding over the course of several months on campus, which are said to have been precipitated by a campus culture hostile to Jewish students and professors. [See below for more details. -EV] The FAC says that these events were perpetrated by students who professed to oppose Zionism, but actually intended to discriminate against Jewish students and professors because they are Jewish. The FAC also alleges that Berkeley failed or refused to enforce its anti-discrimination policies as to its Jewish students and faculty in response to these events.
Taken as a whole, the FAC plausibly alleges disparate treatment with discriminatory intent and policy enforcement that is "not generally applicable." The FAC also plausibly alleges that Berkeley was deliberately indifferent to the on-campus harassment and hostile environment. Consequently, Brandeis's claims under 42 U.S.C. § 1983 for violations of the Equal Protection and Free Exercise Clauses of the U.S. Constitution will go forward, as will the Title VI claim.
It bears mention that the FAC repeatedly alleges that "Zionism is a central tenet of the Jewish faith." This raises concerns about whether Brandeis intends to call upon the Court to determine the articles of faith of Judaism. If so, a serious constitutional problem would arise. The Establishment Clause properly forbids the federal courts from saying what the tenets of a religion are. See, e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020) ("The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of … faith and doctrine.'"). This proscription is particularly forceful when, as here, there is genuine disagreement on the matter.
Because the FAC as a whole plausibly alleges that Jewish students and professors were disparately treated because they are Jewish, the Court need not get into the issue now. The "Establishment Clause will be no worse for not having been so tested." It may be that the Court may properly determine whether Zionism is a sincerely held religious belief for some individuals, as circumstances might warrant, but the Court will not determine if it is a central tenet of Judaism.
