Jessica Felber v. Regents of the University of California
First, I would like to express Kudos to my legal colleague, Ken Marcus, for the honor recently bestowed upon him by The Forward newspaper, as being one of the fifty most influential policy makers in the country. Ken is the founder and director of The Brandeis Center. www.Brandeiscenter.com Two years ago, Ken asked me to serve on the legal advisory board of the Center, a position which I still proudly hold. The Center is directed to protect the civil rights of students throughout the United States. Ken recognized my work representing Plaintiffs in the case filed in the United States District Court, for the Northern District of California, Jessica Felber v. Regents of the University of California.
The issue of protecting students’ rights on campus and in schools throughout America is an important issue and one that is dear to my heart. As a parent of two young children in school, I recognize the importance of having active and engaged school administrators who work effectively to stop school bullying, bigotry, harassment and discrimination, be it discrimination based on race, sex, religion or sexual orientation discrimination.
In this Blog, let me give one example of how an effective school dealt with the problem. We have all heard of Yale University, and we know that it is a world class institution. My oldest bother actually received his PhD in sociology from Yale, and I was fortunate enough to visit the Campus often during his tenure.
Yale, like many universities, has an active ‘Greek’ presence on campus featuring many Fraternities and Sororities. One of the Fraternities had a rather obnoxious (and illegal) practice. It seems that new pledges to the Fraternity, were required to chant, “No means yes, and yes means …”. One does not have to have a PhD in sociology or law to understand the offensive and dangerous quality of requiring male students to chant this on campus. Such an action, in my view, is violative of Title IX of the Civil Rights Act, is offensive and obnoxious to women students and is illegal. Fortunately, Yale, as a world class institution recognized that the actions of this Fraternity were offensive and violative of the law. The Fraternity was censored and punished.
Recently, The Office of Civil Rights of the Department of Education, entered into a “voluntary resolution agreement” to end the investigation of claims of discrimination against Yale on behalf of students complaining against that offensive Fraternity. The OCR worked their mandate to assure that an educational instution has an environment and culture in which all students feel safe and well supported.
Many people have asked me whether the court can be an effective tool in stopping school bullying and bigotry in the classroom, whether that bigotry arises from discrimination based on race, sex, national origin or sexual orientation.
Recent decisions of the Ninth Circuit and other Federal courts clearly confirm that students who complain about hostile environments at their schools based on race, sex, or sexual orientation in that their school administration demonstrates “deliberate indifference” under Title IX and Title VI have actions available to them Montiero v. The Tempe Union H.S. Dist. (9th cir 1998) 158 F. 3d 1022, 1032- 1035; Flores v. Morgan Hill USD (9th Circuit 2003) 324 F. 3d 1130; Vance v. Spencer County Pub. School dist. (6th Cir. 200) 231 F. 3d. 253, 262 and Jones v. Indiana Area School district (W.D. Pa. 2005) 397 F. Supp 2nd. 628, 644-46. This line of cases followed the Supreme Court decision of Davis v. Monroe County Bd. of Education (1999) U.S. 629 649 which defined a “reasonable standard for the test of deliberate indifference” At least one Federal court has expressed that deliberate indifference is a fact-laden question for which bright lines are ill suited. Tesoria v. Syosset Central Sch. district (E.D.N.Y.) 2005) 382 F. Supp 2d 387 399.
In the case of Jessica Felber v. The Regents of the University of California, I argued at the Federal court that,
“…It is not denied that the content of the “checkpoint” demonstrations is hate speech equal in legal odiousness to use of the “N” word, or similar racist and sexist expressions. The Defendant does not deny that the entire MSA/SJP checkpoint presentation is a racist “passion play” of the worst sort which, like the notorious anti-Semitic performances of Oberammergau, Bavaria, portray Jews as blood thirsty and treacherous villains….” Oberammergau, James Shapiro (2000) at page ix.
However, unlike Oberammergau Passion Play, which is performed in a traditional stage setting, The Regents have allowed the MSA/SJP to present their racist performance in the middle of an important campus cross road, Sproul Plaza, and to include interaction confrontation and violence against students who, like these Plaintiffs, did not choose to buy a ticket in order to experience the performance.
The moral of this is that we must be vigilant to have schools which are free of bullying, and racism. And yes, the courts can be effective in stopping that bullying.