Campus Groups Do Not Have a Right to Exclude Zionists

Last week Kenneth Stern published an article explaining that campus groups in the United States should have the right to exclude Zionists. Respectfully, Stern is simply wrong, as a matter of law, and no one should rely on his analysis.  

Stern conflates political speech with identity, and confuses ideology with status. It is true that “people on campus must be allowed to define their politics.” That is why, as Stern notes, the Young Republicans do not have to include a Bernie Sanders supporter. But as Stern also acknowledges, for many people Zionism is a part of their Jewish identity, and has nothing to do with political positions. Nor is it something they are actively communicating when they join a group that has nothing to do with Israel. Student groups cannot discriminate against people because of their identities. That is why no one would dare suggest that the Young Democrats should have the right to exclude all Black or Asian people from their ranks. Student groups do not have the right to exclude Zionists, which would exclude the vast majority of Jews.

Stern is wrong when he casually implies that student groups have an unrestricted right to freedom of association. He cites a case, Hurley v. Irish American GLIB Ass’n, that upheld the First Amendment right of St. Patrick’s Day parade organizers to exclude an Irish gay pride group from their march, but he misunderstands and misapplies that ruling. The Supreme Court actually noted that the parade did not exclude gay people in general, but rather excluded a group that wanted to communicate a particular message during the parade. As one post-Hurley case noted, “the lesson we draw from Hurley is that the principle of ‘speaker’s autonomy’ gives a speaker the right, in some circumstances, to prevent certain groups from contributing to the speaker’s speech, if the groups’ contribution would alter the speaker’s message.” In that case, Hsu By & Through Hsu v. Roslyn Union Free Sch. Dist. No. 3 (2d Cir. 1996), the Court also clarified that there is a required nexus between the group’s purpose for existence and its desired exclusionary principles. Thus, a “hypothetical chess club that excluded Muslims could not claim that the exclusion was necessary to guarantee committed chess players.” Even under Hurley, then, to exclude all Zionists because of who they are remains antisemitic discrimination.

Stern is correct when he writes that “University administrators should work to ensure that no student is harassed, intimidated, or bullied because of their identity, or for any other reason, including their politics.” But he sadly misstates the legal standard, which leads to his awfully incorrect and dangerous conclusion. Under Title VI of the federal Civil Rights Act of 1964, recipients of federal funding must ensure their programs are free from harassment, intimidation and discrimination on the basis of race, color and national origin. In a September 13, 2004 Dear Colleague letter, then Deputy Assistant Secretary of Education for enforcement Kenneth L. Marcus clarified that under Title VI, OCR must investigate antisemitism complaints to the extent that they implicate racial, ethnic or ancestral bias. This (now longstanding) position has been confirmed by the Department on numerous occasions, and in courts as well (both in Title VI and Title VII cases). Discriminating against Jewish people and/or their allies because of their belief in the historical/ethnic/cultural/Jewish ideal of Jewish self-determination in the Jewish ancestral homeland is a form of ethnic/racial/national origin antisemitism, and it is illegal under Title VI. This is aside from the numerous school-specific anti-discrimination policies that most universities tend to have.

Often, student groups that start by demanding Zionists leave campus end up threatening, then committing outright violence against Jews should they refuse to go. 

It is also worth noting that study after study has shown that the kind of discriminatory rhetoric involved in wanting to exclude all Zionists  (with the understanding that “Zionist” is merely an epithet for “Jew” in the same way that “banker,” “globalist” and other such dog-whistles have been used over the centuries to target, demonize and incite against Jewish people) leads directly to antisemitic action. These studies are confirmed every time allegedly non-antisemitic “anti-Zionist” activism breaks through the “nonviolent” veil, leading to people getting hurt. Often, student groups that start by demanding Zionists leave campus end up threatening, then committing outright violence against Jews should they refuse to go. 

That is why it is important to be crystal clear that student groups do not have the “right” to exclude Zionists.