WILLIAM H. ORRICK, District Judge.
Plaintiffs, three Jewish current or former students of San Francisco State University and three Jewish community members,
The FAC is at once far too long, repetitive and full of barely relevant material, and yet so conclusory regarding the causes of action asserted that it does not state a plausible claim for relief against any defendant at this juncture. For the reasons discussed below, I GRANT the motions to dismiss with leave to amend and DENY the motions to strike. I will give plaintiffs leave to amend the entire FAC against all defendants in light of the liberal rules allowing amendment.
On March 28, 2016, the Hillel student group arranged for the Mayor of Jerusalem, Nir Barkat, to speak on SFSU's campus. The event was to take place on April 6, 2016 from 2:00 p.m. — 3:00 p.m. and was titled "Jerusalem Mayor Nir Barkat: How is a Visionary from the High-Tech Sector Leading a Diverse and Scrutinized City?" FAC ¶ 61.
Hillel gave SFSU administrators nine days' notice in advance of the event. Id. On March 29, 2016, Hillel's director emailed defendants Parson, Hong, and Begley, recommending that the Dean of Students and campus police have a protocol in place in case protestors, particularly GUPS, attempted to disrupt the event. Id. ¶ 62. Plaintiff Mandel attempted to secure the permits and a room for the event. Id. ¶ 63. Hillel received confirmation from defendant Birello — whose job is alleged to include managing student organization events, including assigning space and approving permits for student-sponsored events — that the event was assigned to a room in the Cesar Chavez Student Center (CCSC) in the heart of campus. Id.
Defendant Jaramilla (who is alleged to be responsible for coordinating and managing events at SFSU) and defendant Piccinotti (who is alleged to also be responsible for scheduling events and involved in event planning for on-campus events) along with defendants Begley, Hong, Stuart, and Birello, "collectively executed" SFSU's "efforts to move the Barkat event away from CCSC to a remote location, and require Hillel to pay a fee to reserve that more-distant space. Id. ¶ 64. Plaintiffs allege that defendants sent them and the other organizers of the Barkat event various, conflicting emails over the course of the week between the initial notice and the event, expressing concern over the location and identifying "Seven Hills" as a preferred location. The event was eventually assigned to a room in Seven Hills, which is not centrally located, and required Hillel to pay a fee of $356.50. FAC ¶¶ 65, 68.
Hillel continued to ask for a different, more centrally located room. Id. ¶ 66. But because of administrator concerns that the event might draw protestors in classroom space during the middle of the day, voiced particularly by defendants Hong and Begley, the event remained set for Seven Hills. Id. ¶ 67.
Plaintiffs contend that the Administration Defendants acted discriminatorily by consigning the event to a distant and fee-based event space far from the center of campus, when a centrally located and free room was available. FAC ¶¶ 5, 67. Plaintiffs contend that "Defendants' communications confirm that they [preferred] to suppress speech by a visiting foreign dignitary prepared to engage the campus community in productive dialogue, rather than confront the hostile forces operating to silence debate and shut down dissent on SFSU's campus." Id. ¶ 67. Plaintiffs assert that assigning the event to Seven Hills had the effect of decreasing the number of students who could attend, as the location was not only far from central campus but not familiar to students, and that the delays in confirming the event location significantly impacted Hillel's efforts to publicize the event. Id. ¶ 68. On information and belief, plaintiffs assert there were other open, non-fee rooms more centrally-located available. Id.
SF Hillel Deputy Director Rachel Nilson communicated with a representative of SFSU Police Department, Dave Rodriguez, in the days leading up to the event. Rodriguez informed Nilson that the police expected protesters and intended to erect barriers and have a designated protest area outside the event. Id. ¶ 68. Organizers also emailed the Dean of Students seeking information about what types and levels of disruption at the event would trigger ejections, but the Dean did not see the message in time to respond. Id. ¶ 69. Defendant Parson, then-Chief of Police, informed defendants Hong and Begley that in order to remove protestors from the event, someone from SF Hillel would need to sign a Citizen's Arrest form; that information was never communicated to SF Hillel. Id. ¶ 70.
Plaintiffs allege that a group of protestors, including many members of the General Union of Palestine Students (GUPS) student group, "commandeered" the event shortly after Barkat started speaking. The protestors used amplified sound, prohibited under the Student Code of Conduct and SFSU's Time, Place and Manner policies, to disrupt the speech and chanted "menacing" threats like "Get the fuck off our campus" and "Intifada." FAC ¶¶ 6, 7, 9, 72, 76, 80. The protestors' conduct disrupted the event and physically intimidated the Student and Community Plaintiffs to such an extent that Barkat had to stop his speech. FAC ¶¶ 6, 7, 9, 74.
Plaintiffs expected that the police or administrators in attendance (including defendants Parsons and Begley) would take action to stop the protestors' disruption of the event to allow the speech to continue — for example, by asking them to leave, warning them they were violating the Student Conduct Code, or removing them — but the SFSU Administrators instead ordered the SFSU police in attendance to "stand down." FAC ¶¶ 6, 7, 9, 74-75, 79. Community Plaintiff Aaron Parker told defendant Parsons that he would complete a Citizens' Arrest form, but no form was provided to him. FAC ¶¶ 70, 88. Parsons asked the protestors to leave but was ignored. Parsons told Mandel that he wanted to remove the protestors but was told by defendants Begley, Birello, and other administrators to have the police "stand down." Id. ¶¶ 84, 89, 97, 191. After telling Mandel that the situation was "being dealt with," the administrators left the event without taking any steps to remove the disruptive group or otherwise enable the event to proceed. Id. ¶ 92.
The protestors' conduct allegedly violated numerous provisions of the Student Conduct Code, including use of a sound amplifier (FAC ¶ 80), willful disruption of an event (¶ 81), disorderly conduct (id.), and failure to comply with directions of university officials. Id. Yet defendant Begley later informed GUPS that she and the administration had no issue with the threatening "content" of GUPS's protest. Id. ¶ 106.
SFSU commissioned an Independent Review Report of the events leading up to and occurring during and after the Barkat speech.
The Report, as well as student conduct review processes conducted first by defendant Del Valle and then overseen by defendant Harris, confirmed that violations of the Student Conduct Code had occurred. Yet no actions were taken by SFSU against the disruptive students or the GUPS student group, other than verbal warnings. FAC ¶¶ 81, 96, 106-110. Plaintiffs note that the three complaints filed by Jewish students over the event were never acknowledged or responded to by the Administration. Id. ¶ 113. They allege that the failure of the defendants to impose discipline on the protestors and/or GUPS was related to the resolution of a hunger strike organized by the College of Ethnic Studies (COES), because one of the demands of the hunger strikers was "protection" of COES students facing sanctions related to the disruption of the Barkat event. Id. ¶ 81.
Defendant Wong affirmed that SFSU did not intend to take "disciplinary action against any student, staff, faculty or administrators who have taken part in protest and advocacy efforts." Id. ¶ 81. Plaintiffs criticize Wong for that, his failure to make a public statement for three weeks after the event, and his issuance of an "empty letter" about the event, all of which demonstrate his "deliberate indifference to the struggles that Jewish individuals face at SFSU." Id. ¶ 112. They assert that Wong attempted to distance himself from Jewish students and the serious issues they face at SFSU by (i) invoking anti-Semitic stereotypes in his communications following the event, (ii) failing to condemn anti-Semitic conduct on the campus as strongly and swiftly as he condemned hostile conduct aimed at other groups, and (iii) continually dismissing the dangers to the physical safety of Jewish students on campus as a "political issue." Id. ¶¶ 112, 116, 117, 119, 120, 126, 130-132.
Plaintiffs contrast SFSU's alleged mishandling of the Barkat event with a "long history" of SFSU hosting and facilitating anti-Semitic speakers and events. They contend that this demonstrates SFSU's denial of equal protection to Jewish students as it relates to free speech. FAC ¶¶ 123-124, 126.
In addition, plaintiffs allege that SFSU's Advisor Requirements require faculty advisors of student groups to "assist" the student groups they supervise in upholding University policies, including the Student Code of Conduct, the Non-Discrimination Policy, and Time, Place and Manner policies for protests. Id. ¶ 82. On information and belief, plaintiffs allege that defendant Abdulhadi (GUPS's faculty advisor) "chose to disregard these advisor requirements as they applied to GUPS's conduct surrounding the Barkat event, in violation of Plaintiffs' civil rights." Id.
Student Plaintiffs allege that in February 2017, Hillel was surreptitiously and intentionally barred from a Know Your Rights fair (KYR Fair), contrary to SFSU's non-discrimination policy and with full knowledge and involvement by SFSU Administrators, including defendants Birello, Jaramilla, and Piccinotti. FAC ¶¶ 13, 142, 143. The KYR Fair was sponsored by COES, GUPS, and other organizations for "vulnerable populations who may be feeling targeted in the new political climate" since the 2016 presidential election. FAC ¶¶ 144, 145.
Plaintiffs assert that Hillel was invited to the KRY Fair by accident, but when the accidental invitation came to light, other student groups like GUPS threatened to pull out if Hillel was included. Id. ¶¶ 149, 150. Hillel, through representative Jason Steckler, expressed interest in attending; after responding to a "viewpoint-based" test from the organizers about an allegedly anti-Muslim poster event not connected with Hillel, it was invited. Id. ¶ 150. But the student organizing committee, with SFSU's knowledge, then surreptitiously changed the cut-off date for registration with the goal of excluding Hillel and Jewish students from the event. Id.
Defendant Begley was informed of Hillel's exclusion 13 days prior to the event. He told organizers that excluding Hillel would be a problem. Id. Two days before the event, Hillel's director contacted Begley to express his concern that holding this type of an event "without sufficient space" to include Hillel was regretful. Id. Begley, however, decided to let the event proceed. Defendant Monteiro became aware of Hillel's exclusion and declined an offer to give a keynote address at the event; however, he too allowed the event to proceed. Id. Hillel's exclusion was allegedly intentional and sanctioned by SFSU and its officials. Id. ¶¶ 155, 156.
SFSU commissioned a separate report on Hillel's exclusion from the KYR Fair. To date, that report has not been released to the public, but it has been released to some individuals. It concludes that Hillel was intentionally excluded. Id. ¶¶ 157, 158. Defendant Abdulhadi wrote an article admitting that Hillel was intentionally excluded from the KYR Fair, and characterized SFSU's follow up investigation as an attempt to interrogate and harass students and faculty. Id. ¶ 160. Another student organizer of the Fair, a GUPS member and COES graduate student, likewise admitted that Hillel was excluded because of an "ill fit" with the mission of the Fair and in light of the threat of other organizations' withdrawal if Hillel were allowed. Id. ¶ 161.
On information and belief, plaintiffs allege that defendant Abdulhadi chose to disregard her advisor duties — to assist GUPS in adhering to SFSU's non-discrimination policies — and allowed Hillel to be excluded in violation of the Plaintiff Students' civil rights. Id. ¶ 162. They also assert that defendant Harris, as Dean of Student Conduct, is liable for her failure to reprimand the students involved in this intentional discrimination in violation of SFSU policy. Id. ¶ 163.
There are a number of additional conclusory allegations that lack the date they occurred, how frequently they occurred, and who was involved. For example, there are repeated allegations in the FAC that the Student Plaintiffs were denied tabling permits (and often received "inadequately explained denials") for Hillel and the Jewish fraternity AEPi at campus events. FAC ¶¶ 22, 23, 24, 60. There are few details regarding these alleged denials. The FAC also alleges: (i) that "Jewish students who publicly display their Jewish identities or support the existence of a Jewish national homeland are made to feel unwelcome in a host of classes offered under the umbrella of COES;" (ii) "[w]hile murals exist representing a wide and diverse array of various university minority constituencies," no Jewish mural has been allowed or approved, despite repeated requests and personal efforts by plaintiff Volk; (iii) "Jewish events—including those that have no Israel-related purpose or messaging—are systematically shut down by raucous mobs, with the imprimatur of the university;" (iv) Jewish community members are faced with verbal assaults including genocidal chants and expletives, and are forced to watch as the very state actors under whose protection they remain, embolden the attacks in a number of ways, while ignoring the civil rights and the right to safety of the Jewish members of the SFSU community;" (v) "Jews are often afraid to wear Stars of David or yarmulkes on campus, and regularly text their friends to describe potential safety issues;" and (vi) "Jewish students are not treated or accepted as equals, and their rights are not protected, in the hostile environment for them that is SFSU." FAC ¶ 60. Again, there are no details as to time, frequency, or individuals involved in these occurrences.
The FAC also contains numerous general allegations about violent and threatening social media postings by a former student and former President of GUPS at SFSU. It asserts that those postings and other anti-Semitic on-campus graffiti and hostile events were tolerated by SFSU officials. FAC ¶¶ 127-136.
Plaintiffs admit that SFSU has taken steps to address the two specific events — the Barkat event and Hillel's exclusion from the KYR Fair — as well as anti-Semitism at SFSU. But they assert those steps are "disingenuous" in light of the ongoing failures to acknowledge the threats to Jewish students' civil rights and physical safety at SFSU by Wong and other SFSU officials. FAC ¶¶ 164-169.
In addition to defendant Abdulhadi's alleged failures to adequately advise GUPS, plaintiffs contend that Abdulhadi "conscripted" ethnic studies students to participate in a hunger strike that resulted in no charges of discipline being brought by SFSU against the Barkat event demonstrators. FAC ¶ 126. Plaintiffs also assert that Abdulhadi received SFSU funds to travel to the Middle East to meet with representatives of designated terrorist organizations as "research," and spearheaded a formal collaboration and student exchange between SFSU and An-Najah National University, which according to plaintiffs is a "known recruitment facility" for Hamas. FAC ¶¶ 137, 139. Finally, they state that students have to pass a "political litmus test," a commitment to anti-Zionism, to succeed in Abdulhadi's classes or "nearly any other class in the Ethnic Studies Department." Id. ¶ 141.
The Student Plaintiffs allege that as result of SFSU's conduct before and during the Mayor Barkat event and in excluding Hillel from the KYR Fair, they were denied the opportunity to equally participate in the events. FAC ¶¶ 22-24, 85-87. They repeat general, non-specific allegations that they have been verbally assaulted and physically threatened on SFSU's campus as a result of their Jewish identity. As a result, they assert that they personally experienced SFSU officials' "intentional discrimination and deliberate indifference" to SFSU's "pervasively hostile anti-Jewish environment." FAC ¶¶ 22-24, 85-87.
Student Plaintiffs characterize the SFSU officials' actions and failure to act at the Barkat event as (i) "aiding and abetting" the protestors' and GUPS' violation of the Student Code of Conduct and SFSU's Time, Place and Manner policy, (ii) violating the plaintiffs' free speech and assembly rights, and (iii) fostering a hostile environment for Jewish students Id. ¶¶ 95-99. These and other experiences have allegedly caused the Student Plaintiffs to miss classes, avoid enrolling in classes offered through COES, and deprived them of "equal access to the educational opportunities or benefits provided by SFSU and CSU to similarly situated students who are non-Jewish or who choose not to be open about their Jewish identity." Id. ¶¶ 85-87, 99. The Student Plaintiffs also allege that Hillel's exclusion from the KYR Fair denied them their First Amendment speech and assembly rights and rights to equal protection, and is a further example of SFSU providing inferior and unequal accommodation to Jewish students because of their beliefs and Jewish identities. Id. ¶¶ 144, 152, 153, 154.
The Community Plaintiffs allege that they were denied the right to meaningfully participate in the Mayor Barkat event and express their views regarding the same. FAC ¶¶ 25-27. They also assert that they felt threatened and unsafe during the event, and reported the same to police officers on site. Id. ¶¶ 88-91.
Based on these allegations, the following causes of action are asserted:
The defendants first move to strike the FAC in full, arguing that it is overly-long, confusing, opaque, and poorly organized. Dkt. No. 81. More narrowly, the defendants move to strike large portions of the FAC because it is full of redundant, immaterial, impertinent, and scandalous material irrelevant to the current allegations. Id. Separately, defendant Abdulhadi moves to strike paragraph 43, arguing that plaintiffs have cited a "distorted" definition of the U.S. State Department's definition of anti-Semitism. Dkt. No. 44.
The Entity and Administration defendants, and separately, defendant Abdulhadi, also move to dismiss all of the claims asserted in the FAC. A group of Jewish Studies Scholars have filed a motion for leave to appear as Amicus Curiae, which is opposed by plaintiffs.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
Federal Rule of Civil Procedure 12(f) provides that a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The function of a motion to strike under Rule 12(f) is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing of those issues before trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994) (citation omitted). Motions to strike "are generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice." Rosales v. Citibank, 133 F.Supp.2d 1177, 1180 (N.D. Cal. 2001).
Defendants move to strike the FAC in whole, arguing that the 77 page, 248 paragraph FAC is over-long, redundant, disorganized, and full of irrelevant material, violating Rule 8's short plain statement requirement. Dkt. No. 81. I agree with their concerns. Complaints of this length, particularly given the redundant and non-specific allegations included in the FAC, do no one any good. Potentially relevant facts are buried by the irrelevant ones. Allegations in one section of the FAC are alleged slightly differently, with attendant legal consequences, in other sections of the FAC. Short, plain, necessary allegations — targeted to the claims alleged — are in everyone's best interests. That is not what plaintiffs have presented.
Nevertheless, motions to strike are disfavored. The allegations underlying the six causes of action at paragraphs 170 - 248 of the FAC are clearly stated. Defendants are on fair notice of the claims asserted and the facts connected to each of the causes of action. While the FAC violates the spirit of Rule 8 and does plaintiffs no favors, given its length and repetitiveness, defendants have fair notice of the allegations against them. I will not strike the FAC in full or separately parse through the redundant assertions. Plaintiffs should take heed of the criticisms in this Order when they amend.
Defendants identify irrelevant legal arguments and irrelevant allegations of anti-Semitism that occurred in the past (before the complained-of events) or occurred on other campuses. See FAC ¶¶ 1, 10-11, 60, 80-82, 162-163 (vague and generalized allegations regarding a rise of anti-Semitism, assaults on the First Amendment on campuses, alleged violations of student code and criminal code conduct). While of little to no relevance to the claims actually asserted in the FAC, I will not strike these allegations. I will determine their significance at the appropriate time to act as a gatekeeper so the jury considers only relevant facts. At this juncture, factual allegations that are irrelevant cause no harm to my ability to adjudicate the pending motions.
Defendants argue that allegations about anti-Semitic speech or events at SFSU over the last few decades, and allegations regarding the funding and status of the Jewish Studies department in comparison to other departments, are irrelevant to the claims asserted in this case and should be struck. FAC ¶¶ 4, 46-49, 51-59, 100, 118-119, 123, 125-126, 133-136. Plaintiffs respond that these allegations are relevant, at least, to their Title VI claims that rest in part on the alleged fostering and toleration of a hostile and discriminatory environment by SFSU officials. Under Title VI, past events are only relevant to extent plaintiffs are aware of them and the prior events are "similar" to the ones underlying the current Title VI action, so I question the need for much of the background discussion in FAC paragraphs 44 - 69. While their ultimate relevance is questionable, I will not strike these allegations at this juncture.
With respect to the allegedly scandalous characterization of defendant Wong's statements as invoking anti-Semitic stereotypes, the allegations are not scandalous on their face and their anti-Semitic interpretation (by some members of the SFSU community) are substantiated in the FAC. FAC ¶¶ 116, 117; SFSU MTS at 10. Wong's alleged comments are, obviously, subject to different interpretations by plaintiffs and defendants. Plaintiffs' characterizations of them will not be struck from the FAC.
Defendant Abdulhadi joins the other defendants' motion to strike. Dkt. Nos. 44, 74. She also independently moves to strike the FAC's citation in paragraph 43 to the U.S. State Department's definition of anti-Semitism, an argument also raised in the defendants' motion to strike. Defendants argue that this paragraph should be struck because the State Department's definition of anti-Semitism is immaterial and not-binding on this Court, and also because plaintiffs' purported quoting of that definition conflates examples that are in the State Department's view anti-Semitic with examples that "could," depending on context, be anti-Semitic, without noting that distinction. Plaintiffs oppose the motions to strike, arguing that defendants have not shown that the State Department's definition and examples have no bearing or relevance to this case.
I have noted the qualifying language identified by defendants that plaintiffs omitted from their citation to the State Department's definition. And I agree the definition is not binding on me. But while its primary author may have expressed concerns about its application in a university environment, it is — when viewed in its full context — a potentially relevant definition.
Finally, defendants move to strike the few mentions of defendants Stuart, Piccinotti, and Harris or, in the alternative, move for a more definitive statement regarding them. SFSU MTS at 12-15. Similarly, defendants move to strike the allegations regarding Abdulhadi or, in the alternative, for a more definitive statement regarding her role in and potential liability for the causes of action alleged. Id. The grounds argued in support of the motion to strike regarding these individuals essentially repeat arguments made on the motions to dismiss, which will be addressed below.
Defendants' motions to strike are DENIED.
Defendants move to dismiss on numerous grounds. They argue that CSU and SFSU as entities cannot be defendants on the constitutional claims and the Individual Defendants cannot be held liable for damages on the constitutional claims in their official capacities (SFSU MTD at 7-8). Plaintiffs admit that those points are not in not dispute. The parties differ over whether plaintiffs have adequately and can adequately allege constitutional claims for injunctive relief against the Individual Defendants in their official capacities and for damages against the Individual Defendants in their personal capacities under the first four causes of action. Defendants also contend that plaintiffs cannot state a claim under Title VI because there are no allegations either that SFSU officials intentionally discriminated against any of the plaintiffs or of deliberate indifference to peer-to-peer harassment.
Defendant Abdulhadi separately argues that she cannot be held liable under the constitutional claims as plaintiffs cannot allege that she engaged in any of the conduct that caused plaintiffs harm. Also, she asserts that she cannot be punished — consistent with her own First Amendment rights and rights to academic freedom — for her political views and academic activities.
Defendants contend that each of plaintiffs' claims fails because plaintiffs have not alleged sufficient burdens on their rights to free speech and association or violations of equal protection. In Opposition, plaintiffs confirm that the heart of plaintiffs' FAC are allegations of discrimination against plaintiffs based on their race, ethnicity, and religion.
Defendants argue that the FAC fails to adequately allege a deprivation of First Amendment rights by any of the Individual Defendants. All that is alleged is the failure of some of those individuals to stop others from infringing plaintiffs' First Amendment rights. That is not enough.
To state a First Amendment infringement of freedom of association claim — the Student and Community Plaintiffs' inability to benefit from the Barkat event — plaintiffs must plead that the individuals actions imposed a "serious burden upon, affect[ed] in a[] significant way, or substantially restrain[ed]" the plaintiffs' ability to associate. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1033 (9th Cir. 2004). To state a First Amendment claim for infringement of free speech — the Student Plaintiffs' exclusion from the KYR Fair — a plaintiff must allege facts showing that "by his actions the defendant deterred or chilled the plaintiff's [] speech and such deterrence was a substantial motivating factor in the defendant's conduct." Mendocino Envt'l Center v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (internal citation and alterations omitted). A plaintiff need not show that his or her speech was actually inhibited or suppressed, but that "an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities." Id. (citing Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)).
While plaintiffs may bring claims against the Individual Defendants in both their official and individual capacities, there are significant distinctions between those two claims (in addition to the distinction in available relief). In an official-capacity suit, the plaintiff must demonstrate that a policy or custom of the governmental entity of which the official is an agent was the "moving force" behind the violation. Absent allegations of a "policy or custom" that led to the injury, there can be no individual "official capacity" liability. Hafer v. Melo, 502 U.S. 21, 25 (1991) (because "the real party in interest in an official-capacity suit is the governmental entity and not the named official, `the entity's `policy or custom' must have played a part in the violation of federal law.'" (quoting Kentucky v. Graham, 473 U.S. 159 (1985)); see also Papasan v. Allain, 478 U.S. 265, 277-78 (1986) (The ex parte Young exception "has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation.").
For all of the First Amendment claims (which are expressly tied to the Barkat and KYR Fair events), the underlying allegations are that defendants took specific actions or refused to take specific actions that harmed plaintiffs because of plaintiffs' Jewish religion, ethnicity, or perceived pro-Israeli beliefs. The First Amendment claims, therefore, are invidious discrimination claims. Plaintiffs have to allege defendants' specific intent to discriminate to state an official capacity claim; knowledge and mere supervisory responsibility will not suffice. OSU Student Alliance v. Ray, 699 F.3d 1053, 1070 (9th Cir. 2012) ("Invidious discrimination claims require specific intent," whereas attacks on facially neutral policies (or deliberate indifference claims) do not require specific intent to establish "knowledge but failure to act" supervisory liability).
For personal capacity allegations for damages stemming from a constitutional violation, plaintiffs must plead specific facts showing that each named defendant directly engaged in culpable conduct.
The key factual allegations regarding the right of association claim are that the Administration Defendants violated the Student and Community Plaintiffs' rights of association by consigning the Barkat event to a space far from the center of campus, charging Hillel a fee for that space, and then failing to enforce SFSU Student Code of Conduct policies — namely no disruption of events and no use of amplified sound — and instructing the police to "stand down" and not remove the protestors. This does not add up to a cognizable claim.
The mere fact that plaintiffs were not given access to their preferred space does not constitute a violation of the First Amendment. "[T]he fact that [an organizations' members] cannot assemble at that precise location does not equate to a denial of assembly altogether." San Jose Christian College v. City of Morgan Hill, 360 F.3d at 1033. Plaintiffs allege that the Seven Hills space was not centrally located, that many students "had no idea where Seven Hills was located," and that "[o]n information and belief, fewer students and community members attended the Barkat event due to its out-of-the-way location and because Hillel's opportunity to publicize the event was significantly impacted by the University's delay in confirming the location." FAC ¶ 68. That the location was out of the way and the delay in confirming the location might have decreased attendance are not a denial of a right to assembly. After all, each of the Student and Community Plaintiffs was able to assemble, even if, as discussed below, they were not able to benefit from the purpose of the event because it was shut down by protestors.
Significantly, plaintiffs are not alleging that the denial of a centrally located space for the Barkat event was pursuant to a policy or practice of SFSU to deny Jewish students and community members access to centrally-located space for events. Instead, plaintiffs allege that SFSU officials intentionally discriminated against them by denying them a central space for this particular event. Therefore, cases discussing facial or as applied challenges to statutes, permit processes, and other policies that could "reduce[] the size of a speaker's audience can constitute an invasion of a legally protected interest," are inapposite. See, e.g., Benham v. City of Charlotte, N.C., 635 F.3d 129, 130 (4th Cir. 2011); White Tail Park, Inc. v. Stroube, 413 F.3d 451, 461 (4th Cir. 2005).
Moreover, there are no allegations that the "mysterious" change of space for the event was caused by defendants' concern over the content of the Barkat speech, that Barkat is Jewish, or that many members of the audience might be Jewish. Instead, plaintiffs contend that Administration Defendants expressed concerns over what space would be best because of a non-discriminatory reason — the expected protests and the impact of the protests on classes given the planned time of the event. FAC ¶¶ 65, 67.
With respect to plaintiffs' complaint that Seven Hills room required a fee, it is questionable whether that standing alone can constitute a violation of plaintiffs' First Amendment rights where there are no allegations that any of the plaintiffs paid the fee. The fact a fee was required (and paid by a third-party, Hillel, FAC ¶ 68) does not support an infringement of plaintiffs' First Amendment rights. There are no allegations that the fee imposed a serious burden, affected in a significant way, or substantially restrained the ability of plaintiffs to associate. See San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 at 1033. Indeed, the check was delivered by the third party and the event proceeded despite the fee.
The heart of the allegations against the Administration Defendants related to the Barkat event is that defendants failed to enforce student code violations, stop the protests, or remove the protestors. Defendants argue they cannot be liable because it was the protests by the third-parties that frustrated plaintiffs' ability to benefit from the Barkat event, not affirmative acts by any defendant. Felber v. Yudof, 851 F.Supp.2d 1182, 1186 (N.D. Cal. 2011) ("[E]ven assuming that plaintiffs have alleged, or could amend to allege, sufficient acts of harassment and intimidation directed against them based on their religion to be deemed as an interference with their free exercise of that religion, they simply have no basis for pursuing such constitutional claims against defendants. With exceptions not implicated here, state actors have no constitutional obligation to prevent private actors from interfering with the constitutional rights of others.").
Plaintiffs respond that they are alleging that specific Administration Defendants intentionally failed to enforce the Codes of Student Conduct and issued a "stand down" order to the police. What is lacking from the FAC are plausible allegations that the Administrative Defendants took those intentional acts or intentionally failed to act because of the content of the event's speech, the preferential content for the protectors' speech, or the views or religious beliefs of the attendees or organizers of the event. And even if discriminatory intent could be alleged, it is questionable whether a denial of association claim can be made based on the interruption and failure of the Administration Defendants to handle the protestors in plaintiffs' preferred way (or even in a required way) for one event.
The plaintiffs have failed to allege a claim for violation of their First Amendment rights of association based on the allegations regarding the Administration Defendants' handling of the Barkat event. This claim is DISMISSED.
There are no facts alleged to support the assertion that the Administration Defendants played any role in the denial of Hillel's ability to participate in the KYR Fair. The FAC simply assumes that Administration Defendants must have played some role in light of their job titles and responsibilities. See, e.g., FAC ¶ 13 ("For example, in February of 2017, Hillel was intentionally and surreptitiously barred from a `Know Your Rights' Fair based on its members' religion and ethnicity, with the full knowledge and involvement of SFSU administrators, in clear violation of Plaintiffs' civil rights under the First and Fourteenth Amendments."); FAC ¶ 143 ("On information and belief" defendants Birello, Jaramilla, and Piccinotti (given their job titles) "are each responsible for coordinating and managing student organization events such as the `Know Your Rights' Fair, including ensuring that no registered student organization is intentionally discriminated against, improperly excluded, or otherwise subject to violations of established SFSU policies (including the Non-Discrimination Policy) or state or federal law" and these defendants "allowed the admitted intentional discrimination and exclusion of Hillel to occur, choosing not to address Hillel's intentional exclusion in any way"); FAC ¶ 144 ("The fair was an official SFSU event, sponsored by the SF State California Faculty Association, the Cesar E. Chavez Institute, the College of Ethnic Studies, the Dream Resource Center, the Ethnic Studies Student Organization, General Union of Palestine Students, Improving Dreams, Equity, Access and Success (IDEAS), and the Muslim Student Association."); FAC ¶ 150 ("The organizing committee for the fair, including COES and GUPS, with SFSU's knowledge and approval, cut off registration to purposefully exclude this recognized Jewish student group, excluding other groups in the process in an effort to cover up this active discrimination."); FAC ¶ 153 ("Defendants are responsible for these violations of Plaintiffs' rights because of their direct active involvement in the intentional and deceptive exclusion of Hillel from the "Know Your Rights" Fair."); FAC ¶ 156 ("The decision to exclude Hillel from the event was made and then sanctioned by highranking university officials.").
The more specific allegations of the FAC repeatedly place responsibility for both the "mistaken" invitation and Hillel's ultimate exclusion on the "organizers" of the event who do not include any of the Administration Defendants. FAC ¶ 150 ("Hillel was invited to the fair by accident, and once the invitation had been extended, the event's organizers (including COES, GUPS and MSA [Muslim Students Association]) worked to find a way to rescind it."); FAC ¶ 157 ("the Fair's organizers were responsible for retaliation and intentional discrimination against Hillel and Jewish students at SFSU"); FAC ¶ 158 (according to a SFSU communications officer, "San Francisco Hillel was improperly excluded from the Know Your Rights Fair by the self-organized and self-appointed planning committee.").
Indeed, only two Administration Defendants are identified by name as having violated the Student Plaintiffs' rights because of their alleged failure to force the KYR Fair's organizers to include Hillel or by their failure to shut the event down upon notice that Hillel had been or might be excluded. Defendant Begley, Dean of Students, is alleged to have known about the exclusion of Hillel in advance:
FAC ¶ 150. The allegations against Begley concern not her own affirmative decisions but her failure to force Hillel's participation or failure to cancel the event. Similarly, as to defendant Monteiro, the Dean of COES, the FAC alleges:
Id.
The problem with these allegations against Begley and Monteiro is that while they allege knowledge of the potential or actual intended exclusion of Hillel by others in advance of that exclusion, these allegations do not establish their potential liability. The allegations, as repeatedly characterized by plaintiffs, are based on invidious view-point discrimination. Given the way this case has been framed by plaintiffs, simply having knowledge and failing to act will not suffice to impose personal liability on defendants in either an official capacity (absent clear allegations that SFSU had or has a policy to engage in view-point discrimination) or in a personal capacity. Invidious discrimination requires evidence of specific intent by each defendant, not just knowledge about someone else's actions.
Plaintiffs rely on OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012) where the court allowed imposition of supervisory liability on a university official who knew of but failed to stop enactment of an unconstitutional policy regarding placement of newspaper bins on the public-forum campus. 699 F.3d at 1075. In reaching that conclusion, however, the court focused on the nature of the constitutional violation alleged. As relevant here, the OSU court distinguished claims based on "the right not to be singled out because of some protected characteristic, like race or religion" from claims based on the application of a law that was alleged to violate the Free Speech Clause, e.g., content-based or content-neutral laws, regulations, and policies. Id. at 1074-1075. While plaintiffs here are asserting a First Amendment claim based on rights to free speech and assembly, their claims are based not on allegations of the application of any policy by SFSU, but instead are based on allegations of invidious discrimination. In these circumstances, as confirmed by the OSU decision, specific intent to discriminate is required; supervisors cannot be held liable simply because they knew of and failed to stop the invidious discrimination alleged.
Finally, defendant Harris is alleged to somehow have violated the Student Plaintiffs' free speech rights by "her failure reprimand or discipline in any way the students involved in the intentional discrimination against Hillel vis-à-vis the `Know Your Rights' Fair." FAC ¶ 163. However, plaintiffs cite no authority that would allow them to hold defendant Harris liable for others' actions in violating plaintiffs' constitutional rights where her only role was a post-hoc failure to punish.
Plaintiffs have failed to allege facts plausibly showing that any of the Administration Defendants took acts because of the content of plaintiffs' speech or views (or in preference for others') that impinged on the free speech and right to assembly claims of plaintiffs. Plaintiffs' First Amendment claims are DISMISSED.
To state an equal protection claim under Section 1983, a plaintiff must allege facts sufficient to show that a defendant acted "with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). This generally requires a plaintiff to show that she was treated differently than similarly situated individuals because of some protected classification. Id. Defendants argue that plaintiffs' equal protection claims fail because Student Plaintiffs have not alleged they were treated materially differently than other groups by the Administration Defendants because of their race, ethnicity, or religion.
There are a number of problems with plaintiffs' equal protection allegations claim based on the Barkat event. First, Student and Community Plaintiffs fail to allege any facts showing that in materially similar circumstances — i.e., events where speakers would likely draw protests and scheduled when classes are ongoing — other groups who are not identified as Jewish (by race, ethnicity, or religion) were offered more centrally located or fee-free rooms. Second, plaintiffs fail to allege any facts that in materially similar circumstances — an open event where protestors had access, protestors started to disrupt the event, and protestors used prohibited amplification — the Administration Defendants present at the event acted differently. In other words, plaintiffs need to allege that these same defendants have acted in similar circumstances to remove student protestors or instructed the police to do so, in order for a plausible inference to arise that the Administrator Defendants acted the way they did because of Plaintiffs' Jewish identify.
The Administration Defendants make several arguments against imposing equal protection liability on them, some of which lack merit. For example, they argue that the KYR Fair claim is blocked by plaintiffs' allegation that Hillel's exclusion was secured by the "surreptitious" changing of the registration deadline that excluded numerous other participants, not just Hillel. However, "[a] willingness to inflict collateral damage by harming some, or even all, individuals from a favored group in order to successfully harm members of a disfavored class does not cleanse the taint of discrimination; it simply underscores the depth of the defendant's animus." Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1159 (9th Cir. 2013).
Defendants argue with more promise that because another Jewish-identified group participated in the KYR Fair, there is no plausible basis to allege a denial of equal protection based on Jewish identity. They ask me to incorporate by reference the full content of a post-KYR Fair statement made by defendant Abdulhadi. In that statement, which plaintiffs rely on for evidence that Hillel was intentionally excluded by the organizers, Abdulhadi notes that another Jewish group ("Jews for Peace") was included in the Fair. SFSU Mot. at 11; FAC ¶ 160.
Plaintiffs object to the incorporation of the full Abdulhadi blog post, arguing that their claims do not depend on it. They neglect to note that they themselves rely on it as evidence that Hillel was intentionally excluded from the KYR Fair. However, the full blog post was not attached to either of the motions to dismiss or as part of Abdulhadi's request for judicial notice; therefore, I cannot rely on the portions not cited by plaintiffs in ruling on the motions to dismiss. See, e.g., Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (incorporation by reference appropriate where "plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint.").
Accordingly, I will not dismiss the equal protection claim regarding the KYR Fair on this ground now. However, if there was another Jewish-identified group participating at the Fair, plaintiffs would face a potentially insurmountable burden to show that Hillel was excluded because of Jewish race, ethnicity, or religion. In that event, perhaps plaintiffs could allege a different equal protection theory regarding Hillel's exclusion, but those facts and that theory are not included in the FAC.
More problematic is that the claims in this case are all grounded in invidious discrimination (that the Student Plaintiffs' were denied equal participation in the KYR Fair because of their Jewish identity). While there are general allegations that certain Administration Defendants had responsibility for "student events," the more specific allegations admit that it was the student organizers who accidentally invited and then prevented Hillel from participating. The only Administration Defendants who are specifically identified as having some responsibility for preventing Hillel's exclusion or failing to shut down the KYR Fair are defendants Begley and Monteiro. Yet there are no facts alleged that these individuals had the power to do what plaintiffs seek (require the students to admit Hillel or force the student organizers to cancel the Fair), nor that they acted with the specific intent to deprive the Student Plaintiffs of their equal protection rights because of their Jewish identity.
The equal protection claim suffers from a number of deficiencies identified above with respect to the Barkat event and the KYR Fair and is DISMISSED.
Defendants move to dismiss claims against defendants Piccinotti and Harris because there are no facts alleged that they took any affirmative acts (or failures to act) with respect to any of the alleged violations of plaintiffs' First and Fourteenth Amendment rights. Harris allegedly failed to hold student protestors or student KYR Fair organizers liable for violations of student conduct codes. FAC ¶¶ 110, 163. Those omissions followed the alleged constitutional violations. The claims against Harris, therefore, are DISMISSED.
As to Piccinotti, his only alleged offense was receiving an email regarding Hillel's attempt to secure a room in CCSC for the Barkat event. FAC ¶ 65.
Defendants also move to strike the claims against defendant Brian Stuart because no facts are alleged that he took any affirmative acts. Stuart is only mentioned in the FAC as a defendant who is "SFSU's Assistant Dean of Students & Director, New Student Programs;" as part of the collective who "executed the University's effort to move the Barkat event away from CCSC and to require Hillel's payment to host the event;" as receiving the same email as Piccinotti about Hillel's attempt to secure a room at CCSC; as receiving an email from Begley (also sent to defendants Hong, Stuart, and Parsons) notifying them that Begley had just learned Hillel was trying to secure the CCSC room and of Begley's concerns about disruption to classes; and as "acknowledging" post-event that the use of amplified sound at the Barkat event violated SFSU's code of student conduct and the protectors violated other student code provisions. FAC ¶¶ 38, 64, 65, 67, 80, 81. Plaintiffs fail to allege that Stuart had any direct role with respect to the Barkat event acts. He is DISMISSED.
Defendants argue that the Student Plaintiffs have not alleged intentional discrimination by SFSU or its officials and that a Title VI claim cannot be asserted based on SFSU's failure to prohibit other students (e.g., the protestors) from engaging in their First Amendment activities. Defendants also assert that the Student Plaintiffs fail to allege facts to establish SFSU was deliberately indifferent to peer-to-peer harassment of the Jewish students.
Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." 42 U.S.C. § 2000d. To state a prima facie claim of discrimination under Title VI a plaintiff must allege facts sufficient to "give rise to an inference of unlawful discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Generally, this requires plaintiffs to plead facts demonstrating that (1) they are part of a protected class, (2) they were treated differently from similarly situated individuals, and (3) this treatment was motivated by their protected status. See Rashan v. Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014); see also TC v. Valley Cent. School Dist., 777 F.Supp.2d 577, 595 (S.D.N.Y. 2011) ("[A] claim of discrimination under Title VI must plead (1) that defendants discriminated against them on the basis of race, (2) that the discrimination was intentional, and (3) that the discrimination was a substantial or motivating factor for defendants' actions."). The Ninth Circuit has held that to plead a Title VI claim for a hostile school environment a plaintiff must allege that (1) there is a racially or otherwise hostile environment; (2) the district had notice of the problem; and (3) it failed to respond adequately to redress the problem. Monteiro v. Tempe Union High School Dist., 158 F.3d 1022, 1033 (1998). A hostile environment is one that is "so severe, pervasive, and objectively offensive, and that so detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities." Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 652 (1999) (discussing the standard for harassment claims under the analogous Title IX framework); see also Monteiro, 158 F.3d at 1033 (a "hostile environment" adequately alleged "if it is sufficiently severe that it would interfere with the educational program of a reasonable person of the same age and race as the victim").
Student Plaintiffs initially argue they have stated a Title VI claim based on allegations of direct discrimination (i) that SFSU consigned the Barkat event to a distant and fee-based room and the Administration Defendants failed to stop the protestors so the event could proceed; and (ii) the exclusion from Hillel from the KYR Fair.
The Student Plaintiffs' Title VI claim based on direct discrimination suffers from the same defects described above because the constitutional claims have not been adequately alleged.
Student Plaintiffs confirm in their Opposition that they are alleging a hostile environment claim under Title VI. As framed by the FAC, the only specific current allegations of peer-to-peer harassment that might support a hostile environment claim are the conduct of GUPS and other protestors at the Barkat event and the exclusion of Hillel from the KYR Fair. Those two claims — standing alone — do not show that Jewish students at SFSU suffered such severe, pervasive, and objectively offensive discrimination to be actionable under Title VI, especially when, as discussed above, the alleged incidents of discrimination have not been shown to have emanated from affirmative acts by the Administration Defendants. See, e.g., Davis, 526 U.S. at 631 ("A single instance of severe one-on-one peer harassment could, in theory, be said to have such a systemic effect, but it is unlikely that Congress would have thought so.").
The "background" allegations assert a variety of anti-Semitic conduct starting in 1973 and continuing through 2009 (FAC ¶¶ 46-59). That conduct is not close enough in time nor substantially similar to the two events actually identified and complained of to bolster the claim. See, e.g., Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 337 (6th Cir. 2008) (in Title VII case, "[w]hen determining the relative weight to assign similar past acts of harassment, the factfinder may consider factors such as the severity and prevalence of the similar acts of harassment, whether the similar acts have been clearly established or are mere conjecture, and the proximity in time of the similar acts to the harassment alleged by the plaintiff. . . . In general, however, the appropriate weight to be given a prior act will be directly proportional to the act's proximity in time to the harassment at issue in the plaintiff's case. The further back in time the prior act occurred, in other words, the weaker the inference that the act bears a relationship to the current working environment."); see also Felber v. Yudof, 851 F.Supp.2d 1182, 1188 (N.D. Cal. 2011) ("[A]cts occurring years before plaintiffs ever enrolled at UC Berkeley, and/or on different campuses entirely, does little to demonstrate that plaintiffs suffered severe and pervasive harassment.").
The FAC also alludes to other current events that in plaintiffs' view set a tone that SFSU tolerates, if not promotes, anti-Semitism, but those allegations are vague and conclusory. There are no details with respect to time, frequency of occurrence, who was involved, and in some instances whether the acts were aimed at the Student Plaintiffs or otherwise known to the Student Plaintiffs. FAC ¶¶ 22-24, 133-136, 141, 155. For example, with respect to the vague allegations of having tabling permits denied or that the denials were "inadequately explained," there are no allegations of when these incidents happened, how often they happened, and who (other than in some instances, Mandel) was involved. Similarly, with respect to the "rumors" of a litmus test for COES and Abdulhadi classes, there are no facts substantiating the existence of that litmus test, and only one vague allegation that plaintiff Kern was reluctant, but not prohibited, from taking a COES course. The same is true of the allegations that "students" had to take alternative routes to class and hide their Jewish identity to avoid being threatened. In general, these vaguely identified events and assertions, without more factual support, cannot prop up the Student Plaintiffs' hostile environment claim.
Even if adequately alleged, the Student Plaintiffs are also required to show that defendants had knowledge of the incidents of harassment creating the hostile environment and were deliberately indifferent to them. See, e.g., Doe v. Willits Unified School Dist., 473 Fed. Appx. 775 (9th Cir. 2012) ("Damages under Title IX are available only if an official with authority to address the alleged discrimination and institute corrective measures has actual knowledge of the discrimination and fails to adequately respond—i.e., acts with deliberate indifference." (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)).
The test for deliberate indifference is "whether a reasonable fact-finder could conclude that the College's response was `clearly unreasonable in light of the known circumstances.' . . . In other words, we must decide whether, on this record, one could find that the College made `an official decision . . . not to remedy the violation.'" Oden v. Northern Marianas College, 440 F.3d 1085, 1089 (9th Cir. 2006) (quoting Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 641 (1999) and Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998)).
To "meet this high standard there must, in essence, be an official decision not to remedy the violation and this decision must be clearly unreasonable." Doe v. Willits Unified School Dist., 473 Fed. Appx. at 775-76; see also Monteiro, 158 F.3d at 1034 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388-92 (1989)) ("[T]he district is liable for its failure to act if the need for intervention was so obvious, or if inaction was so likely to result in discrimination, that `it can be said to have been deliberately indifferent to the need.'").
The Entity Defendants initially rely on Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), where the Supreme Court explained in the analogous Title IX context that "[d]eliberate indifference makes sense as a direct liability theory only where the recipient has the authority to take remedial action." Id. at 630. Defendants contend, at least with respect to the Barkat event, that they did not have the authority to prevent or stop the protestors' free speech rights to protest. Defendants' point is well taken.
Even more problematic for the Title VI claim are plaintiffs' own admissions that SFSU has taken steps in response to both the Barkat and KRY Fair events. Specifically, SFSU investigated both incidents and prepared reports, although only the Barkat Report has been publicly released. Plaintiffs also admit SFSU has taken broader steps to address the shutdown of Barkat event and anti-Semitism at SFSU in general, although they characterize them as "disingenuous." FAC ¶¶ 164-169.
Plaintiffs fail to allege facts that plausibly show SFSU's responses are clearly unreasonable. For example, there are no allegations that the investigations were conducted in a way that caused the Student Plaintiffs specific prejudice, e.g., with unreasonable delays or inadequate efforts. See Oden, 440 F.3d at 1089 ("[T]his record does not permit an inference that the delay was a deliberate attempt to sabotage Plaintiff's complaint or its orderly resolution."). Although no student groups or individual students were disciplined with respect to the Barkat investigation or the KYR Fair, according to plaintiffs, there are no facts alleged that that these discrete "failures" to impose discipline amount to deliberate indifference. See, e.g., id. at 1089 ("An aggrieved party is not entitled to the precise remedy that he or she would prefer."). For example, the Student Plaintiffs do not allege that multiple events sponsored by plaintiffs or Jewish students or community members were impermissibly shut down by these same protestors or that these same protestors have repeatedly aimed threats and violent taunts at Jewish students or otherwise repeatedly violated the Student Conduct Code such that the failure to discipline one or more of them amounts to deliberate indifference.
Finally, as to the efforts by defendant Wong and others to address anti-Semitism more generally, while the Student Plaintiffs claim comments by Wong were themselves anti-Semitic and have further hurt and alienated Jewish students, there are no facts alleged showing that the efforts of SFSU are clearly unreasonable. See, e.g., Felber, 851 F.Supp.2d at 1188 (no deliberate indifference where plaintiffs alleged "that the administration has engaged in an ongoing dialogue with the opposing parties in an attempt to ensure that the rights of all persons are respected, and to minimize the potential for violence and unsafe conditions. That the University may not have acted as plaintiffs would prefer does not rise to `deliberate indifference.'"). Plaintiffs have not alleged facts to plausibly show deliberate indifference; indeed, the facts actually alleged appear to show the Entity Defendants' responses were objectively reasonable.
The Student Plaintiffs also fail to allege facts showing that they were denied educational benefits. The two discrete instances of "deprivation" specifically identified in the FAC, the frustration of the Student Plaintiffs' asserted rights to hear Mayor Barkat and right to represent Hillel at the KYR Fair, do not, standing alone, equate to an actionable deprivation of educational opportunities. See, e.g., Fennell v. Marion Independent School Dist., 804 F.3d 398, 410 (5th Cir. 2015) (plaintiffs must show "concrete, negative effect" on the victims' education, for example creating "disparately hostile educational environment" relative to a peer, "forcing the student to change his or her study habits or to move to another district," or "lowering the student's grades," or causing anxiety sufficient to require "alternative study arrangements"); Gabrielle M. v. Park Forest-Chicago Heights, IL. School Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) ("negative impact on access to education may include dropping grades . . . becoming homebound or hospitalized due to harassment . . . or physical violence"; in that case there was no evidence that plaintiff was denied access to an education where although "she was diagnosed with some psychological problems, the record shows that her grades remained steady and her absenteeism from school did not increase."); see also Felber, 851 F. Supp. 2d at 1188 (noting "it was not clear that activities on Sproul Plaza or at Sather Gate necessarily would significantly impede any student's access to the educational services offered by the University" when the incidents alleged "did not occur in the context of her educational pursuits" but when plaintiff was attempting to exercise free speech).
In addition to those two events, the Student Plaintiffs describe their own experience:
FAC ¶ 22. Mandel does not provide sufficient details to plausibly show a concrete, negative effect on his education, consistent with the case law identified above.
FAC ¶ 23. Similarly, Volk does not plead sufficient details to plausibly show a concrete, negative effect on his education as required.
FAC ¶ 24. Kern does not allege facts about the assaults (for example, the dates of the assaults, the frequency of the assaults) and what impact they had on his educational access other than a "reluctance" but not inability to enroll in one COES class. These allegations are likewise not specific enough to plausibly show a concrete, negative effect on Kern's education.
In sum, there are numerous problems with the Title VI claim as alleged. It is DISMISSED.
Defendant Abdulhadi separately moves to dismiss on the grounds that: (i) the allegations against her concern the activities of others; (ii) she cannot be held responsible for her political or academic affiliations; (iii) plaintiffs have no standing to sue; and (iv) any alleged claims are barred by Eleventh Amendment or qualified immunity.
The bulk of plaintiffs' allegations regarding Abdulhadi are about things Professor Abdulhadi has done or appointments she secured in the past. For example: that she became a director and senior scholar at AMED (in 2006); she co-founded a group that advocates for the social, political, and economic boycott of Israel (in 2006); she drafted a brochure celebrating a mural that, initially but not in the final version, contained explicit anti-Semitic image; and as Dean of COES and director of AMED, she was integrally involved in on-campus conferences in 2009 that advocated discriminatory, racist, and anti-Semitic positions, including attacking the legitimacy and right of Israel to exist. FAC ¶¶ 56, 57, 58, 59. Those allegations are irrelevant to the constitutional claims asserted against Abdulhadi and have little or no apparent connection to the Title VI claims against the Entity Defendants.
The allegations about Abdulhadi's actions during the times the Students Plaintiffs have been at SFSU that are the basis of the claimed constitutional violations are:
As an initial matter, while Abdulhadi has been sued in both her official and personal capacity, there is no SFSU "policy" that Abdulhadi is alleged to have created, applied, or otherwise could be liable for as an official actor. Likewise, there are no allegations about ongoing constitutional deprivations, as opposed to deprivations in the past related to Abdulhadi's conduct. See supra. Therefore, no claim can be asserted against her for injunctive relief on the basis of her "official" capacity.
Abdulhadi could theoretically be liable in her personal capacity for damages related to the two incidents of invidious discrimination alleged in the FAC (the shutdown of the Barkat event and the exclusion of Hillel from the KYR Fair). However, there are no allegations that Abdulhadi herself took any affirmative actions against plaintiffs or otherwise acted with specific intent to discriminate against plaintiffs. Instead, there is only speculation that, because of her role as an advisor to GUPS and as a faculty of COES, she had advance knowledge of GUPS's plan to disrupt the Barkat event and failed to prevent it and also failed to prevent the organizers of KYR Fair from excluding Hillel.
Plaintiffs attempt to avoid alleging facts showing specific intent to discriminate by relying on cases arising under the Eighth and Fourteenth Amendments that discuss "deliberate indifference" when conditions of confinement are involved. Those cases are inapposite. Following Iqbal, the prison condition cases continue to recognize that "deliberate indifference" can be a basis for supervisory liability under § 1983 for claims of "unconstitutional conditions of confinement, unlike a claim of unconstitutional discrimination." Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011) (emphasis added); see also OSU, 699 F.3d at 1071 ("[B]ecause Eighth Amendment claims for cruel and unusual punishment generally require only deliberate indifference (not specific intent), a Sheriff is liable for prisoner abuse perpetrated by his subordinates if he knowingly turns a blind eye to the abuse."). As noted above, because plaintiffs' claims rest on intentional invidious discrimination, specific intent needs to be alleged.
As to any affirmative acts by Abdulhadi that caused plaintiffs harm to their constitutional rights, the FAC is silent. Plaintiffs, at most, attempt to build a bridge between Abdulhadi's alleged anti-Zionist and anti-Israel stances, her pro-Palestinian resistance support, and her academic pursuits to support an inference that she must have encouraged GUPS or others to engage in the acts of discrimination complained of.
Given the total lack of facts alleged showing that Abdulhadi herself acted to cause plaintiffs' alleged constitutional injuries, the allegations in the FAC fail to state a claim against her. Out of an abundance of caution, I will allow plaintiffs leave to amend their allegations against Abdulhadi.
Defendants' motions to strike are DENIED. Defendants' motions to dismiss are GRANTED and plaintiffs' FAC is DISMISSED in full with leave to amend. A Second Amended Complaint shall be filed within twenty days of the date of this Order or the case will be dismissed.
