The Power of Prayer

I just returned from a one-month trip to Israel, where we celebrated the bat mitzvah of my eldest daughter, Maya. Israel is, in my opinion, the most incredible country on Earth. For someone like me who loves history, archaeology, spirituality, politics, good food, great weather, and spending time with family, there is no better place to be (apologies to the Grateful Dead’s “Tennessee Jed”). Yet my time in Israel did not afford me enough opportunity to delve into its depth. I could, and probably should, spend a lifetime there to explore and understand that depth.Maya_Nava

Since we traveled as a family, I wanted to include lighter activities for our daughters, aged 12 and 8, such as plenty of beach and pool time, rafting on the Jordan river, and making chocolate at a kibbutz chocolate factory. The one activity I did not enjoy was shopping. But I live with three women. My wife graciously encouraged me to take off for Jerusalem on the days when she and our daughters went shopping in malls near her family village of Gedera. This allowed me plenty of time in Jerusalem, a city I really love.

For a Jew, Jerusalem is the center of the world. And at the center of that center is the Kotel, or Wailing Wall, the western remnant of the Temple Mount, destroyed by the Romans over two thousand years ago. The Kotel is where Jews have for generations gone to pray, as it is near to the sites of the First Temple and the Second Temple, where ancient Jews sought to be close to G-d.Kotel

I must admit that, as far as prayer goes, my ability to pray is much like my “prowess” in jogging and tennis. Without constant practice, I’ve lost my skills.

When I first approached the Kotel, I was in awe. I also realized my prayers felt dry and rehearsed. I had asked G-d for the usual stuff (i.e., good health for me and my family, a good living, etc.), except that it felt like I was eating at the best restaurant in the world but could not taste the food. I sensed I was in a spiritual block. Before consulting a rabbi (there are plenty hanging around the Kotel), I decided to try to work it through myself.

The next day my girls accompanied me to the Kotel. As we approached the wall, I told my daughters, Maya,12, and Nava, 8, some of its history, though they both knew a bit about it from their Jewish day school classes. I decided to add a mystical twist, suggesting they each approach the wall and seek out one of its embedded Herodian stones, set in place more than two thousand years ago. I advised them: “Find a stone that speaks to you. Then open your heart and pray to G-d.”

After about forty-five minutes of prayer, we reconvened at the plaza. I queried the girls on how it was for them. Maya, who had celebrated her bat mitzvah ten days prior on top of Masada, volunteered “It was good.” She confided that she was a little anxious about starting the sixth grade in the fall. She had heard that the math curriculum was harder than fifth-grade math, and she was worried about it — and whether all the kids in sixth grade would be as sweet and kind as they were in the fifth grade. She was also concerned about the California drought and asked G-d to deal with that. After sharing all this with me, she broke into a big smile and then told me that she felt her younger sister did not really understand the difference between praying and making a wish before blowing out candles on a birthday cake. She had listened in on Nava’s appeal at the Kotel: “if you get me a pony, I promise we will keep it in the back yard, and I’ll be responsible for feeding her.” Maya and I both chuckled. But later that night I reflected on both daughters’ prayers. I wondered if they were the spiritual teachers I needed for my own breakthrough on praying.prayer

The following day I approached the Kotel with a new paradigm, and suddenly, I felt like an in-shape athlete. Instead of merely asking G-d for the things I wanted, I realized G-d and I were in a relationship, and like every relationship, there needs to be communication and love before asking for things. Instead of praying for stuff for me, I prayed for the ability to give more heart-based charity and to be less judgmental and more compassionate. In the ensuing days, I noticed my praying was more fluid and deeper. I noticed something else remarkable. During my first trip to the Kotel, I had been standing in prayer next to a fellow who wore shabby clothes and, frankly, smelled pretty bad. Even in this most holy of places, I could not avoid judgmental thoughts about the man. Yet, gradually, after my paradigm shift in prayer, my feelings about this fellow changed. No longer did I view him in a negative way. He was like everyone else here, a person who was reaching out to G-d.

As I mused over this radical change in my thinking, I recalled a Reb Shlomo Carlebach story about a student who, after encountering a gruff and course person, has a similar paradigm shift. The student realizes that the person whom he had harshly judged was in reality one of the hidden thirty-six righteous people in the world. I am not so enlightened to know if the man I encountered at the Kotel was at that level, but it did make me wonder. It demonstrates to me I still have a lot of spiritual work to do.

Celebrating The Dead Reunion at The Dead Sea:

Another perspective on the fifty year farewell tour of the Grateful Dead

Grateful_Dead_Sixties

Grateful Dead at Haight/Ashbury

My intense and everlasting connection to the Grateful Dead is well known to those who know me – and to those who happened to have read my earlier blog post about my experiences with the Dead. While a high school and college student in New York, I attended over fifty Dead shows  and considered myself a legitimate “head,” traveling to see the band at Harpur College, Cornell, Long Island, Knickerbocker Arena, and Madison Square Garden, amongst some of the many East Coast venues. By 1978 I found myself as a first year law student in San Diego California (having tired of New York winters). I happened to meet my neighbor, Bill Walton, who had just signed a contract to play with the then San Diego Clippers. Bill and I became instant friends. Shortly thereafter we attended the close of Winterland in San Francisco. And later that year the Dead came to San Diego to play shows in Golden Hall. There were parties and dinners at Bill’s house after the concerts. I met and became friends with Ramrod (legendary “president” of the Grateful Dead and head of the road crew) and was awed when he introduced me to Jerry, Bobbie, Mickey and Bill K. Within a few weeks Ramrod had given me a number of legal assignments and, while still a first-year law student at California Western School of Law in San Diego, I found myself doing legal work for the Grateful Dead. Talk about a long strange trip! Over the next twenty years I worked off and on for the Dead and attended over 300 shows, often backstage.

1995 was a tough year for me. Not only did Jerry Garcia leave this world but, by coincidence (if there is such a thing), my mother died that year too, along with my best friend, Arthur H. Hartfelt, a rather “famous” Deadhead.  Jerry and my mother had met once. My mom was a unique and wonderful Jewish mother from a very tough neighborhood called Bensonhurst in Brooklyn, New York.  In the early 1990s she came to San Francisco as a tourist and was mugged outside of the St. Francis Hotel. It was a big local news story, and KTVU sent a camera crew to the hospital to interview my mom, recovering from broken hips. I suppose the media angle was this: a sweet grandmother from a tough neighborhood in Brooklyn, who had never been assaulted there, gets assaulted in San Francisco.  The owner of David’s Deli on Geary Street sent a package of matzah-ball soup and corned beef sandwiches to my mother’s hospital room daily.  Jerry Garcia, too, had seen the TV coverage and was so moved he drove to St. Francis Memorial Hospital to visit my mom.  I missed seeing Jerry, but when I arrived later that day my mother told me that Jerry had come to visit.  She told me he was very pleasant.  She also told me that she had told Jerry he was very handsome but would look better if he trimmed his beard. (My mother said that to all of my friends – to get haircuts.)

Suffice to say, the Dead have been an important part of my life. So when I first heard about the Grateful Dead reunion tour I became somewhat sad, knowing I would miss it. Earlier this year my wife and I were wrestling with the idea of how to celebrate our oldest daughter’s Bat Mitzvah. A Bat Mitzvah is a right of passage for a Jewish girl upon reaching the age of 12, becoming obliged to fulfill more of the rights and responsibilities of being an adult. Maya had come home from school one day and told us that she had learned of the history of Masada, the desert fortress on the shores of the Dead Sea. This story deeply affected Maya and she announced that she wanted to have her Bat Mitzvah on top of Masada!

Masada_ruins

Masada, the fortress where almost 1000 Jewish zealots committed mass suicide rather than surrender to the Romans.

For those of you who do not know the history, over two thousand years ago the imperial Roman army attacked and destroyed Jerusalem and other centers of Jewish life in the land of Israel. The Romans sacked the temple, the center of Jewish practice and culture, and cast all Jews out of the country. The exiled Jews were scattered across the globe. Israel was renamed Palestine. In resistance, a small group of Jewish revolutionaries (who weren’t about to take that shit) fled Jerusalem and set up camp in an abandoned mountain fortress called Masada in the desert. The Romans were not content to let these revolutionary zealots live there, so they invaded Masada. As a statement of ultimate protest – refusing to become Roman slaves – they took their own lives.

When Maya told us of her Bat Mitzvah wishes, I was inspired to take out a recording of Jerry Garcia singing with Merle Saunders The Harder They Come, a Bob Marley classic.  “I would rather be a free man in my grave than living as a puppet or a slave.”  The next thing I did was to begin planning a one-month trip to Israel to celebrate Maya’s Bat Mitzvah.  Needles to say we selected the dates, and purchased airline tickets, long before the Grateful Dead announced their reunion farewell tour.

Maya_Israel

Maya milks a goat in the days before the Bat Mitzvah at the moshav of mystical rabbi Shlomo Carlebach

Oh well. So I write this essay from Israel, where I make a l’chaim ( a toast to Life). I make a l’chaim to those who will be attending the shows this weekend and next weekend. And to those like me who have other weekend obligations and responsibilities that are as meaningful and awesome as the Dead concerts.

If Jerry were here (or at my daughter’s Bat Mitzvah in Masada) I’m sure he would understand and say, l’chaim! –  To Life!

“OCR to Re-examine Complaints of Anti-Semitism at UC Berkeley”

Last month, my office filed an appeal with the Department of Education Office of Civil Rights (OCR) regarding Anti-Semitism on the campus of the University of California, Berkeley.

As the Daily Cal reports:

Two San Francisco-based lawyers have filed an appeal asking the U.S. Department of Education to revisit a previously dismissed complaint alleging that UC Berkeley administrators failed to respond to a hostile campus environment for Jewish students.

Lawyers Joel Siegal and Neal Sher filed the appeal Oct. 4 with the Department of Education’s Office for Civil Rights, asking the office to reinvestigate its initial complaint against UC Berkeley that was dismissed in late August.

Like the prior complaint, the appeal alleges that Jewish students at UC Berkeley faced intimidation, violence and offensive comments during various events on campus, including what the lawyers claim to be derogatory language directed at Jewish students by the student group Students for Justice in Palestine during Israeli Apartheid Week.

In their appeal, Siegal and Sher claim the OCR failed to fairly investigate various incidents of intimidation and violence on campus.

Siegal and Sher allege the OCR is practicing a double standard by condemning a “ghetto-themed” party hosted by a fraternity at UC San Diego but failing to address offensive events during Israeli Apartheid Week at UC Berkeley in 2010. They add that the events during Israeli Apartheid Week were “equally offensive and odious to Jewish students.”

“In some ways, Apartheid Week is more offensive,” Siegal said. “It is a full week on-campus, (and) it portrayed Jews as blood-thirsty barbarians.”

After investigating Siegal’s initial complaint, the OCR dismissed the allegations, saying events such as Israeli Apartheid Week did not violate Title VI of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, color or national origin.

UC Berkeley spokesperson Dan Mogulof said the appeal is without merit in light of the OCR’s past ruling on the issue.

“Given the extent to which the university’s position has been fully supported to date, we see the appeal as an unfortunate, quixotic endeavor,” Mogulof said in an email.

Sophomore Michaela Fried, a vice president of Tikvah, a campus organization that advocates self-determination for Jewish people in Israel, said she has at times felt uncomfortable as a Jewish student at UC Berkeley.

“There have been multiple instances since I’ve arrived at Cal of swastikas being drawn in bathrooms and classrooms on campus and in the dorms,” she said in an email.

Some students, such as Elon Rov, a senior and co-chair of UC Berkeley’s chapter of J Street U, a Jewish student political advocacy group, did not experience a hostile campus climate.

“This school has been extremely welcoming and accepting of Jewish practices,” he said. “I feel like I have all the resources I need.”

The OCR also dismissed similar complaints filed by separate individuals against UC Irvine and UC Santa Cruz. Tammi Rossman-Benjamin, a lecturer at UCSC, has appealed the dismissal of her initial complaint that the campus allows a hostile environment for Jewish students by supporting anti-Semitic events on campus.

“The biggest issue is that they misunderstood my complaint,” Rossman-Benjamin said. “It wasn’t that there was anti-Israel speech or events. My complaint was that those events were sponsored by the university.”

According to the OCR, the appeals are under review.

 

Using the Courts to Create an Anti-Bullying Atmosphere at Schools

Jessica Felber v. Regents of the University of California

Bullying2First, 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.

Bullying1Recent 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.

 

How the Boycott Divestment and Sanctions Movement (BDS) Exposes Universities to Title VI and Trustee Liability.

By: Joel H. Siegal, Attorney at Law, and Neal M. Sher, Attorney at Law

On March 13, 2013, the student council at U.C. San Diego passed a nonbinding resolution calling for boycotting firms with business ties to Israel. The resolution proposed by a Registered Student Organization (RSO) called Students for Justice in Palestine, (SJP) was similar to resolutions previously passed at U.C. Riverside and U.C. Irvine. The resolution names Boeing, General Dynamics, Hewlett Packard, Ingersoll Rand, Caterpillar and Raytheon among those companies that “profit from Israel’s occupation and violence against Palestinians ….” Eyes are now turning toward U.C. Berkeley to see if another BDS resolution is on the horizon there. A divestment measure was passed in 2010, but subsequently vetoed.

As the furor of BDS hits campuses throughout California and the United States, the fundamental question of whether or not these BDS campaigns could expose the University to liability needs to be addressed. University administrators, faced with shrinking budgets to implement fundamental educational programs, need to be mindful of the financial implications of these BDS campaigns.

  1. BDS potentially violates Title Six of the Civil Rights Act. Often times, the debate at Student Senate hearings on BDS resolutions, digress to one sided Israel bashing festivals. Title Six of the Civil Rights Act protects students from a hostile and intimidating environment on Campus. The University needs to be mindful of the vitriol expressed in the BDS campaign. As eloquently stated by Natan Sharansky there is a “three D” test for anti-Semitism. First, double standards singling out Israel for criticism while ignoring the more egregious behavior of major human rights abusers in the world; Second, demonization of  Israel and distorting the Jewish state’s action by means of false comparisons with Nazis or South African Apartheid; Third, delegitimization i.e. denying the fundamental right of the existence of a Jewish state. These are example of anti-Semitism, and when these arguments are expressed are parts of BDS resolution debate, hostile environments to Jewish students have been created. As Thomas Friedman wrote in the New York Times, “singling out Israel for opprobrium and international sanction- out of all proportion to any other party in the Middle East is anti-Semitic and not saying so is dishonest. University officials should recognize that violation of Title Six has significant consequences such as the possible loss of Federal Funds.
  2. Passage of a BDS resolution could expose university urustees to liability under ERISA.  Support of a BDS resolution may well expose the University and its trustees to Liability under the Employee Retirement Income and Securities Act (ERISA) Sec. 404 (a) (1) (A) (B). ERISA is the Federal law that governs many universities Pension and Trust funds. The law provides that fiduciaries, including trustees, must discharge their duties, “solely in the interest of the participants and beneficiaries for the exclusive purpose of providing benefits to the participants and their beneficiaries. The Department of Labor is in concurrence that investment decisions not based upon a portfolio’s ability to provide benefits for beneficiaries may be imprudent and violates of ERISA. It is hard to imagine that a beneficiary, who questioned a Funds decision to divest from a stock that was providing good return, yet did business with Israel, was improper. Such a decision would no doubt expose university trustees to fiduciary liability.

It is clear, that there are potentially huge legal liabilities for Universities’ who support and fail to effectively monitor BDS campaigns. This article has just scratched the surface of potential University liability for support of these resolutions.

Neal M. Sher is a New York Attorney and former Director of the Office of Special Investigations in the U.S. Department of Justice.

Joel H. Siegal is a San Francisco attorney who specializes in civil rights, and labor litigation