Litigation over UC protester policy continues

As colleges across the nation are defending against claims that they failed to combat rising antisemitism on campus in the wake of Hamas' attack against Israel last fall, the University of California is tightening up on protestor tactics it considers disruptive or threatening, enacting bans this week on encampments, face masks and congregations that block pathways. 

But some pro-Palestinian protesters are fighting back against what they say are violations of their due process rights, accusing the University of California of imposing unduly harsh punishments for those at the forefront of the demonstrations and encampments on campuses. Civil rights lawyer Thomas B. Harvey and Pasadena firm Rothner Segall & Greenstone represent five UC Irvine students who claim that their interim suspensions are inconsistent with how the university has handled protesters in the past. Z.S. et al. v. Regents of the University of California et al., 24CV085260 (Alameda Super. Ct., filed Jul. 30, 2024).

Universities should not suspend students for alleged violations without due process absent an immediate safety concern, missing here and in many protests across the UC system, Harvey said about the case against UC Irvine and the Regents of the University of California. The attorney said the university system upheld his clients' suspension despite having no evidence that they posed a significant threat to campus safety or operations. 

Harvey said he expects more cases filed on behalf of pro-Palestinian protestors and is working with lawyers on some of these cases. He noted that the face mask ban had an important caveat, applying to people who intend to intimidate someone or a group or for purposes of evading detection. 

"This is vague enough to make it virtually unenforceable, but at a minimum requires knowledge of intent before any enforcement. The ACLU has been actively challenging directives like this across the country and I wouldn't be surprised to see them step in here. I certainly hope they do," said Harvey. 

"When dealing with a public forum, or a limited public forum, which is what most people consider universities to be, restrictions are OK as long as they're content neutral," West Coast Trial Lawyers president Neama Rahmani commented in a phone call. The attorney said narrowly tailored restrictions that serve a significant government interest, such as providing students with a secure and uninterrupted educational experience, are generally upheld by courts. 

Rahmani noted that the University of California's encampment ban is unlikely to be reversed considering the U.S. Supreme Court's landmark ruling in Grants Pass v. Johnson, holding that local governments were allowed to move homeless people off public property. "There's no right to camp somewhere overnight, so that's probably the weakest argument they have," said Rahmani. 

Students have due process rights and must be treated equitably when facing penalties by their universities, said Rahmani. "If students are being treated differently because of what they're advocating for, that would be a substantive due process violation and a problem," he said. 

Rahmani added that the ban on face masks and coverings that conceal a person's identity would not hold water, citing health reasons and religious protections. "I was watching the DNC yesterday and a bunch of people were wearing face masks. What are you going to do?" he asked. 

Los Angeles civil rights attorney Christian M. Contreras commented in an email that he anticipated more lawsuits to be filed against the University of California's protest restrictions. "A university is under no obligation to open its campus to outside, non-sponsored speakers. The First Amendment does not guarantee access to property for speech activities simply because the property is government-owned," said Contreras. However, he noted that legal precedent states that governments cannot deny access to property on grounds that infringe constitutionally protected interests, such as freedom of speech. 

"In terms of students, it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional.  Universities will have to be more careful as to how they impose their restrictions and the conduct of third parties relative to how their actions affect their students," Contreras added. 

Harvey also represents UCLA's chapter of Faculty for Justice in Palestine in a lawsuit against the university stemming from campus protests. Last week, U.S. District Judge Mark C. Scarsi enjoined UCLA from allowing protests to block Jewish students from accessing classrooms and other areas. Speaking on UC President Michael Drake's letter announcing the new restrictions, Harvey told the Daily Journal that it was "important to challenge the whole premise" of Drake's announcement. 

"The existence of 'encampments' is a direct response to the UC's failure to protect students who gathered peacefully to protest genocide and the UC's investment in it. When Zionist counter protesters harassed and threatened students at UCLA, anti-genocide protesters responded by asking members to create a secure, safe place free from these threats that UCLA failed to protect them from," Harvey said. 

Masks and face coverings were necessary to prevent rampant doxing by pro-Israel demonstrators and others, he argued. "Again, UCLA did nothing when students reported this, leaving them to fend for themselves. Setting aside the COVID surge we're experiencing in California and the obvious need for masks for health purposes, anti-genocide protesters largely wore masks to protect themselves from the threats of the UC system, counter protesters, and the whole network of potential employers who have vowed never to hire anyone who spoke out against genocide," Harvey continued.

Mark Rienzi, the president of the Becket Fund for Religious Liberty and one of the attorneys representing the plaintiff-students in the UCLA case, said the school's measures were "a half step at best." 

Drake's directive did not mention discrimination, this spring's protests, or Jewish students and did not say that UCLA would drop its appeal against the preliminary injunction, said Rienzi. "That is nowhere close to enough," he said. "It is mystifying that UCLA can't simply say the sentence: 'We will stop discriminating against Jews.' Until they say that, this is all smoke and mirrors." 

Litigation on both sides will press on, commented Rahmani. "This is where politics and the law intersect. Historically, universities have taken a hands-off approach because they don't want to be seen as stifling speech. But to the extent that violence ensues or [the protests] disrupt the student experience, I think [the University of California] will take a more aggressive approach than it did last summer," Rahmani said.