The Regents are meeting next week and will discuss pending litigation behind closed doors. (We posted the agenda last Saturday.) A whole lot of issues developed after Oct. 7, 2023, with the encampments and related issues, particularly at UCLA. And there was a fallout of litigation - still pending. (I am not referring to the Trump demand for a billion dollars which is a whole other thing and not up for discussion or a "deal.")
In one instance - the Frankel case (named after a student plaintiff) - the Regents effectively admitted guilt, paid some money, and said the problems had been corrected going forward. An official UCLA task force said much the same. But now, in a related case, rather than settle with the individuals involved, the Regents are trying to get that case dismissed on various technical grounds and on the assertion that while Bad Things might have happened in the past, corrective actions have since been taken. A friend-of-the-court brief has been filed with ten Jewish UCLA employees saying that while Bad Things had happened at UCLA, they nonetheless could go about their business.*
As a non-lawyer, the main thing that impresses me is the thought of what it must have cost to have O'Melveny & Myers and their 6 named lawyers prepare the brief, and how much more cost there will be when a hearing is held on the brief on Feb. 1.
Hey Regents, why not work out a deal with the individuals named? Just settle it. You don't need to "win." And here's a little ditty to help you to get there:
Or direct to https://www.youtube.com/watch?v=LC2uPxHEvy0.
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*I asked Claude to wade through the Regents' request for dismissal and summarize. Here is that summary:
UC Regents' Motion to Dismiss: Summary of Key Arguments
Case: United States, et al. v. Regents of the University of California, No. 2:26-cv-01946-CAS-AS (C.D. Cal.), Judge Christina A. Snyder
Document: ECF 79-1, Memorandum of Points and Authorities in Support of Motion to Dismiss (filed Oct. 26, 2026; 55 pages, about 14,500 words)
Counsel for the Regents: O'Melveny & Myers (Adam Karr, K. Lee Blalack II, Meaghan VerGow, Natasha Teleanu, Jennifer Sokoler, Anton Metlitsky)
Hearing: February 1, 2027, 10:00 a.m., Courtroom 8D
What the motion covers and what it asks for
This is a single consolidated brief responding to two complaints. The first is DOJ's Title VII complaint. The second is the First Amended Complaint filed by the Intervenor Plaintiffs (IPs), who are Jewish and Israeli UCLA faculty and staff.
- DOJ complaint: The Regents ask the court to dismiss all six counts in full, with prejudice and without leave to amend.
- IP complaint: The Regents seek dismissal of these specific counts:
- Claim 1, as to Drs. Shamsa, Holloway, Stein, and Burt
- Claim 2, as to Holloway
- Claim 3, as to Shamsa, Holloway, and Burt
- Claim 4 (FEHA failure to prevent), as to all IPs
- Claim 5, as to Holloway
The brief opens by acknowledging that some UCLA employees were exposed to antisemitism on campus, which it attributes to third parties. It then argues that the complaints leave out UCLA's remedial steps and that the legal theories fail as a matter of law. The background section also describes the federal government's $584 million funding suspension and its demand for over $1 billion as unlawful and retaliatory, noting that both are subject to existing injunctions.
1. No standing to seek injunctive relief (Rule 12(b)(1))
- The legal standard. A plaintiff seeking an injunction must show a "certainly impending" future injury (Clapper; Spokeo). Past harm is not enough (Wright v. SEIU; Nelsen v. King County). The brief notes that the same rule applies to the United States.
- The allegations are stale. According to the brief, the complaints focus mainly on events from the 2023-24 academic year, especially the spring 2024 Royce Quad encampment.
- The court may look beyond the pleadings. Because standing is jurisdictional, the court can consider declarations and evidence of UCLA's reforms since 2024. The brief lists these:
- Tightened time, place, and manner rules that ban unauthorized encampments and masking to evade identification
- A new Office of Campus and Community Safety, led by former LAPD officers
- Revoked registration for Students for Justice in Palestine (SJP) and Graduate SJP
- A reorganized Civil Rights Office with new leadership
- New training programs
- Compliance with a December 2024 Voluntary Resolution Agreement with the Department of Education's Office for Civil Rights
- Chancellor Frenk's Initiative to Combat Antisemitism and its May 2026 Roadmap
- An improvement in UCLA's ADL report card grade from F (2024) to B (2026)
- No renewed encampment and no consent-judgment violations. The brief says no encampment has formed since spring 2024 and no one has alleged a violation of the Frankel consent judgment.
- Harvard precedent. The brief relies heavily on United States v. President & Fellows of Harvard College (D. Mass. Aug. 13, 2026), which dismissed the government's injunctive claims as resting on stale, episodic allegations. That ruling is on appeal.
- Causation and redressability. Any future harm would come from independent third parties such as protesters and vandals, not from UCLA, so an injunction against UCLA would not redress it.
2. The hostile work environment claims fail (DOJ Counts II, IV, VI; IP Counts I, III)
- (a) No employer liability for harassment by third parties.
- Title VII reaches the employer and its agents under agency principles (Burlington Industries v. Ellerth).
- The Ninth Circuit allowed negligence-based liability for third-party harassment in Folkerson (1997), but that case involved a tightly controlled casino. Universities have far less control over adult students and members of the public, and a public university is further constrained by the First Amendment.
- More broadly, the brief argues that the negligence theory came from EEOC guidance and should be abandoned after Loper Bright. It points to Bivens v. Zep (6th Cir. 2025), which requires that the employer intended the third-party harassment.
- Both complaints plead only negligence ("knew or should have known"). They do not allege intent, a discriminatory policy, or that Jewish complaints were treated worse than others.
- The IPs' assertion that encampment participants were UCLA's agents is called conclusory.
- (b) UCLA's response was reasonable even under a negligence standard. Under Campbell v. Hawaii Dep't of Education (9th Cir. 2018), the question is whether the employer's steps were reasonably calculated to end the harassment. An employer may respond incrementally and need not act in the most draconian way. UCLA cleared the encampment within about a week, and more than 200 people were arrested and referred for prosecution. UCLA also blocked later attempts at encampments and building occupations. The brief cites Stand With Us v. MIT (1st Cir. 2025), which approved a gradual de-escalation approach.
- (c) Dr. Shamsa's claim is barred by the Frankel release. Shamsa settled the Frankel case for compensation and released Title VII and FEHA claims arising from materially identical allegations. The brief argues the release also bars DOJ from recovering on his behalf, citing EEOC v. Goodyear Aerospace and the rule against double recovery in EEOC v. Waffle House.
- (d) No actionable harassment of Drs. Shamsa or Holloway.
- Standard: Conduct must be severe or pervasive (Manatt v. Bank of America). Speech on matters of public concern that is aimed at the campus community generally, rather than at a particular person, cannot be harassment (Rodriguez v. Maricopa; Reges v. Cauce). Several post-October 7 campus cases have excluded such speech from the analysis.
- Shamsa: Most incidents occurred at protests on the main campus that he chose to attend during work breaks, away from his medical-school workplace. The incidents connected to the medical school were either not directed at him or were protected speech. An anonymous postcard sent to him was intercepted by UCLA, and his department chief brought it to him and suggested he call campus police.
- Holloway: The incidents arose from his signing the "UCLA Faculty Against Terror" letter. They include a chalkboard note, criticism from colleagues, student evaluations that mentioned the letter, and an accusation that he gave a biased personnel review. The brief argues these are protected speech and are not severe or pervasive.
- (e) The "other aggrieved employees" claim (DOJ Count VI) fails.
- DOJ does not state the size of the class or the principles that define its members (EEOC v. Il Fornaio; EEOC v. BNSF).
- The incidents are scattered across a very large campus and do not support an inference of a common experience.
- The Task Force survey cannot fill the gap. Only 231 respondents were employees, out of roughly 50,000. The survey also has selection bias, allowed anonymous participation, does not separate victims from witnesses, and does not measure how often incidents occurred.
3. The pattern-or-practice claim fails (DOJ Count I)
- Intent is required. Section 707(a) applies only to a pattern or practice "intended to deny" rights. The brief supports this with the statute's text, Senator Humphrey's 1964 floor statement, and several circuit decisions. It also relies on the Teamsters requirement that discrimination be the employer's "standard operating procedure."
- DOJ pleaded negligence instead. DOJ's complaint expressly pleads negligence in responding to harassment, so the brief says DOJ "pleaded itself out of court." It adds that no court appears to have recognized a pattern-or-practice claim based on a negligent response to third-party harassment.
- The facts are too thin in any event. Even if such a claim were possible, accounts from about nine employees cannot show a systemic pattern in a workforce of roughly 48,700. By comparison, Teamsters involved about one account for every eight class members plus statistical evidence. The brief also cites Cooper, Craik, and EEOC v. Carrols. Again, it argues the survey cannot fill the gap.
4. The retaliation claims fail (DOJ Counts III, V; IP Counts II, V as to Holloway)
- Shamsa: The complaint does not identify which promotions were lost, when, or by whom, and does not allege that the decision-maker knew of his EEOC charge. Shamsa himself brings no retaliation claim.
- Holloway: The litigation-hold notice sent to his department is a legally required step, not an adverse employment action. The request that he stop voting on personnel matters while on medical leave, and unspecified colleague "concerns" about his transfer, are not tied causally to any protected activity.
5. Two intervenors are not employees (IP Counts I, III, IV)
- Dr. Burt: She is a professor emerita who retired in 2004 and was not recalled to a paid appointment. Her pension and insurance are not compensation. The Regents seek dismissal of her Title VII and FEHA claims.
- Dr. Stein: She is an unpaid volunteer clinical faculty member. Perks such as library and gym access and malpractice coverage are incidental and do not count as remuneration. The Regents seek dismissal of her Title VII claim.
- Other intervenors: The Regents chose not to challenge the remaining IPs' claims individually at this stage. They say they expect to address them later through motions for judgment on the pleadings or summary judgment.
6. The FEHA failure-to-prevent claim fails (IP Count IV)
This claim depends on an underlying claim of actual discrimination (Martin v. Board of Trustees of CSU). The IPs assert only harassment and retaliation under FEHA, so the brief argues the claim should be dismissed to the extent it rests on discrimination.
This summary is based solely on the Regents' brief. It reflects their characterization of the complaints and the law, not the positions of DOJ or the intervenors.
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If you really want to see the underlying documents, here they are:
Frankel Case settlement:
UCLA task force report:
Case to dismiss and related friend-of-the-court brief:
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