Judge rules that Muslim assault of Jewish student is "free speech" -- but the case isn't over yet.
The dismissed court case involving a Jewish student attacked by a Muslim student last year at the University of California at Berkeley is still alive. Jessica Felber, 21, was injured by Husam Zakharia, leader of the Students for Justice in Palestine (SJP), during a rally while holding a sign that said, “Israel Wants Peace.” Zakharia rammed her from behind with a shopping cart. The case was dismissed at the end of December when U.S. District Court Judge Richard Seeborg ruled, astonishingly, that the assault was “an act of protected free speech.”
In her suit, Felber alleges that UC Berkeley did not effectively deal with the harassment and intimidation of Jewish students by the SJP and Muslim Students Association [MSA], leading to “a dangerous and threatening environment.” The groups staged mock “checkpoints” on campus, where they waved imitation weapons around and demanded of passing students, “Are you Jewish?” Jewish students were allowed to pass (although some were verbally harassed) while Muslim or Arab students were “detained.” The checkpoints were meant to mimic the Israeli Defense Force's security measures against Palestinian terror attacks.
The suit lists other instances of anti-Israel and anti-Jewish hostility at Berkeley and other California campuses. It notes that Zakharia and two other SJP activists were cited in 2008 for battery after disrupting a college rally by a campus Jewish group and assaulting a Jewish student. SJP members also heckled Mideast expert Daniel Pipes and author Nonie Darwish when the two came to speak at UC Berkeley in 2004 and 2007 respectively. The hecklers allegedly shouted “Death to Zionism,” “Zionism is racism,” and the infamous Nazi salutation “Sieg Heil” during Pipes' presentation.
UC Berkeley administrators had been warned that growing Muslim extremism on campus was putting Jewish students at risk, and that the excessive and violent on-campus actions of the SJP and the MSA clearly constituted “hostile environment” harassment. The suit charges that the administrators were well aware of this and could have prevented the assault but did nothing, and that their duty to do so arises from the fact that the SJP and MSA are on University of California property and are subject to the Regents’ control and discipline.
Indeed, the suit alleges, UC Berkeley’s policies “fostered and encouraged” pro-terrorist incitement, “turned a blind eye to the perpetrators of illegal activities,” and “failed to effectively discipline the MSA and SJP for their pro-terrorist programs, goals and conduct; despite having ample notice that such violence was foreseeable.” By failing to provide security to Jewish and pro-Israel students, UC Berkeley “condoned and allowed the MSA, the SJP and MSU [Muslim Student Union] to threaten, harass and intimidate Jewish students and to endanger their health and safety.”
In an interview with FrontPage managing editor Jamie Glazov, Felber’s attorney Neal Sher, former head of American Israel Public Affairs Committee (AIPAC) and of the Justice Department's Nazi prosecution unit, noted that
the University seems to be a slave to political correctness. And, I suspect that there is an element of intimidation stemming from the actions of the anti-Israel crowd, who have been loud and persistent in pushing their agenda. And, some university officials might have mistakenly bought into the deceitful propaganda being spread by those who seek to de-legitimize the Jewish state and her supporters.
In his dismissal, Judge Seeborg left the door open for an amended complaint. Now, in new documents submitted to him in the Northern District Court, San Francisco Division, attorneys for the plaintiffs Felber and Brian Maissy asserted that, just as other minorities have received protection under Title VI of the Civil Rights Act of 1964 (which prevents discrimination by government agencies that receive federal funds), so should Jewish students in this instance. “The content of the ‘checkpoint’ demonstrations,” the attorneys claim,
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 bloodthirsty and treacherous villains. . .”
The reference is to the famed performance of the Passion Play put on in Oberammergau, Germany every ten years since 1634. Over the centuries, countless visitors there have witnessed the dramatic recreation of the suffering, crucifixion and resurrection of Jesus. But the performance – praised by Hitler – is also notorious for an anti-Semitic portrayal of Jews conspiring to kill Jesus.
However, unlike the Oberammergau Passion Play, which is performed on a traditional pay-to-view stage setting, the Regents have allowed the MSA/SJP to present their racist performance in the midst of an important public campus crossroads, 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 defense attempted to belittle the plaintiffs’ claims by arguing that their religious beliefs were not impacted by the mock checkpoints, assaults, and verbal harassment. Plaintiffs’ attorneys countered that MSA’s and SJP’s offensive and hostile actions “go to the heart of unlawful religious and racial endangerment and interference”:
To be free from violence and harassment based on their Jewish identity, while lawfully on a UC campus, are rights guaranteed by the rights to freedom of religion and to the equal protection of the law.
A hearing on the amended complaint is scheduled for March 15.
In a separate interview with attorney Sher, Glazov pointed out that, if the situation were reversed and a Jewish student had assaulted a Muslim, there would be outrage in the media and the university would not have hesitated to take stern disciplinary action. Sher agreed:
There is no question that if the shoe was on the other foot, immediate and decisive action would be taken by the powers that be. It’s time that we demand an end to the hypocrisy and double standards which have gone on far too long and which will be exposed in this lawsuit. The silent majority should remain silent no longer!
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