No More Excuses—Time for Berkeley to Act

Ever since some student groups at Berkeley Law School signed a pledge to exclude anyone that supports the existence of a Jewish state, there has been a very public debate about the legality of these so-called “Jew-Free” zones. In response to widespread criticism, the groups, led by Students for Justice in Palestine, issued a statement claiming that the bylaw was not antisemitic because it “does not attack Jewish people or faith.” 

The dean of the law school chose to ignore what the statement actually said, accepting this fairly thin excuse and writing that: “[A]t this stage, all some student groups have done is express their strong disagreement with Israel’s policies.” 

From a legal perspective, the dean (and the school) gave undo credence to the mischaracterization of the decision to exclude all Zionists as based on political viewpoint discrimination as opposed to anti-Jewish sentiment. Too bad the antisemites’ own attorney couldn’t help herself from saying more, thereby blowing that flimsy excuse completely out of the water.

Liz Jackson, a senior staff attorney at Palestine Legal, which represents SJP, recently clarified the position of the groups she represents, explaining that she knows “Some students say that their Jewish identity is so deeply identified with Zionism that this effectively discriminates against them, but that’s their subjective view and choice about how they understand their own Jewish identity.”

Here is the problem with that statement: Jewish people, and only Jewish people, get to define what is and is not part of their Jewish identity—not antisemitic groups like Palestine Legal or SJP. And for the vast majority of Jewish people across time and space, Zionism is and always has been an integral part of their Jewish, often their religious, identities. That does, in fact, transform that particular kind of Zionism into a category protected by state and federal civil rights law, whether SJP likes it or not. 

Discriminating against a Jewish person or group just because they are Zionist is illegal because Zionism is demonstrably not just a political movement. For thousands of years, Jews across the world have prayed to God at least three times a day (and often more) for a safe return to Zion. The Pentateuch itself references this ancient Jewish hope while the Prophets and Writings repeatedly record this ambition. More than half of the biblical commandments are specifically tied to the land of Israel, and doctrinally, belief in and hope for the return to Zion is part of the 13 Principles of Jewish Faith. 

Jews were Zionists before there were Muslims, and even before there were Christians. In multiple places throughout the New Testament, the yearning for redemption is expressed in terms of the by-then-already-classic formulation of Jewish Zionism (see e.g., Matthew 21:5 and John 12:15), while the Quran itself is quite clear about the long history of Jews in the Holy Land—and especially in Jerusalem. (See, for example, Surah Bani Isra’il, verses 1-7). While it is true that the Jews were twice expelled from their ancient kingdom of Israel, it is also true that they never fully left: Despite the fairly recent antisemitic lie casting Jews as colonialist outsiders, since biblical times there has always been an indigenous Jewish community living in the eternal Jewish homeland. In the late-19th and early-20th centuries, Jews from around the world came to buy and cultivate land to further expand those existing Jewish communities that had remained in Israel as a continuous presence throughout all of the exiles.

But for those Jews for whom Zionism is a part of their Jewish ethnic heritage and identity, it absolutely is protected and they cannot be excluded on the basis of holding that belief.

Today, support for Zionism can take multiple forms, and mere political Zionism may not be protected, like any other political belief. Not all Zionists are Jews, and not all Jews are Zionists. But for those Jews for whom Zionism is a part of their Jewish ethnic heritage and identity, it absolutely is protected and they cannot be excluded on the basis of holding that belief. Anti-Zionism that allows for discrimination against Jewish people because of their affiliation with, affinity for, or support of the biblical/prophetic/historical/ethnic/cultural/Jewish ideal of Zionism is antisemitism. So is telling Jews what they can and can’t believe.

To be clear, it is the openly stated, on the record view of Palestine Legal and of SJP that they get to define what “Jewish identity” can include for Jewish people. And, if they feel that one or another Jewish belief should not be part of a Jewish person’s identity, they may freely discriminate against people for holding that belief, and that cannot be considered antisemitism. Should Palestine Legal, for example, decide tomorrow that keeping Shabbat or kosher observance is not really part of Jewish belief, just some Jews’ “subjective view and choice about how they understand their own Jewish identity,” then they can and should be free to discriminate against Jewish people who do observe Shabbat or keep kosher. Likewise, should they decide that taking mass is just something that some Catholics subjectively like to do but is not really part of their religion, they can freely discriminate against those Catholics who do practice the ritual.   

Nor was this a one-time accidental admission. When Jewish student leaders, the people who are ostensibly being excluded for their views, clarified that “When we say ‘Zionism,’ we mean the Jewish right to self-determination in their ancestral homeland, which is Israel … This does not say anything about the self-determination of Palestinians,” Jackson doubled-down and “expressed disagreement with that definition of Zionism.” 

Here is the bottom line: Anti-Zionists do not get to define a Jewish person’s Zionism for them, cast it as merely political, and then discriminate against them for it. 

Berkeley made clear that if this was about Jewish identity, then they would step in. Palestine Legal just said the quiet part out loud: It was always about Jewish identity, and they were always aware of it. They just don’t like that part of Judaism. Consequently, they feel they should have the right to tell the vast majority of Jews that they are wrong about their own Jewish identity, and that they better purge themselves of those beliefs or they will be discriminated against.  

There goes that “political viewpoint” excuse. Your move Berkeley.