Berkeley Develops Jewish-Free Zones

After we published this op-ed by Kenneth Marcus, Erwin Chemerinsky, Dean of Berkeley School of Law, sent us a response. You can read it below, followed by a response from Marcus.
September 28, 2022
The U.C. Berkeley campus (Photo by Justin Sullivan/Getty Images)

If it wasn’t so frightening, one might be able to recognize the irony in the sight of campus progressives trying so hard to signal progressive virtue that they fall victim to a deeper moral shame.

Nine different law student groups at the University of California at Berkeley’s School of Law, my own alma mater, have begun this new academic year by amending bylaws to ensure that they will never invite any speakers that support Israel or Zionism. And these are not groups that represent only a small percentage of the student population. They include Women of Berkeley Law, Asian Pacific American Law Students Association, Middle Eastern and North African Law Students Association, Law Students of African Descent and the Queer Caucus. Berkeley Law’s Dean Erwin Chemerinsky, a progressive Zionist, has observed that he himself would be banned under this standard, as would 90% of his Jewish students.

It is now a century since Jewish-free zones first spread to the San Francisco Bay Area (“No Dogs. No Jews”). Nevertheless, this move seems frightening and unexpected, like a bang on the door in the night.

Berkeley law students are not the first to exclude Zionists. At the State University of New York at New Paltz, activists drove two sexual assault victims out of a survivor group for being Zionists. At the University of Southern California, they drove Jewish student government vice president Rose Ritch out of office, threatening to “impeach [her] Zionist ass.” At Tufts, they tried to oust student judiciary committee member Max Price from the student government judiciary committee because of his support for Israel.

These exclusions reflect the changing face of campus antisemitism. The highest profile incidents are no longer just about toxic speech, which poisons the campus environment.

Now anti-Zionist groups target Jewish Americans directly.

Anti-Zionism is flatly antisemitic. Using “Zionist” as a euphemism for Jew is nothing more than a confidence trick. Like other forms of Judeophobia, it is an ideology of hate, treating Israel as the “collective Jew” and smearing the Jewish state with defamations similar to those used for centuries to vilify individual Jews. This ideology establishes a conspiratorial worldview, sometimes including replacement theory, which has occasionally erupted in violence, including mass-shooting, in recent months. Moreover, Zionism is an integral aspect of the identity of many Jews. Its derogation is analogous, in this way, to other forms of hate and bigotry.

Some commentators defend these exclusions on speech grounds, arguing that “groups also have a right to be selective, to set their own rules for membership.” They are wrong about this. As Dean Chemerinsky explains, the free speech arguments run in the other direction: Berkeley’s anti-Zionist bylaws limit the free speech of Zionist students.

Discriminatory conduct, including anti-Zionist exclusions, is not protected as free speech. While hate speech is often constitutionally protected, such conduct may violate a host of civil rights laws, such as Title VI of the Civil Rights Act of 1964. It is not always the case that student groups have the right to exclude members in ways that reflect hate and bigotry. In Christian Legal Society v. Martinez, the U.S. Supreme Court upheld the right of another Bay Area University of California law school, Hastings College of the Law, to require student groups to accept all students regardless of status or beliefs. Specifically, the Court blessed Hastings’ decision to require Christian groups to accept gay members.

Discriminatory conduct, including anti-Zionist exclusions, is not protected as free speech.

Putting legal precedents aside, major universities generally require student groups to accept “all comers,” regardless of “status of beliefs.” They also adopt rules, aligned with federal and state law, prohibiting discrimination on the basis of various classifications such as race, ethnicity, heritage or religion. Those who adopt such rules may not exclude Jews from these protections.

The real issue here is discrimination, not speech. By adopting anti-Jewish bylaw provisions, these groups are restricting their successors from cooperating with pro-Israel speakers and groups. In this way, the exclusionary bylaws operate like racially restrictive covenants, precluding minority participation into perpetuity.

Universities should not have to be legally compelled to do what is obviously right. Anti-Zionist policies would still be monstrously immoral, even if they were not also unlawful. The students should be ashamed of themselves. As should grownups who stand quietly by or mutter meekly about free speech as university spaces go as the Nazis’ infamous call, judenfrei. Jewish-free.

Response from Dean Chemerinsky:

Kenneth L. Marcus’ article, “Berkeley Develops Jewish-Free Zones,” paints a misleading picture of what happened at Berkeley Law.  There is no “Jewish-Free Zone” at Berkeley Law or on the Berkeley campus.  Indeed, as Mr. Marcus advocates, and as I explained in a recent message to the Law School community:  “The Law School has an “all-comers” policy, which means that every student group must allow any student to join and all student organized events must be open to all students.”  I know of no instance in which in this has been violated or there has been any discrimination against Jews.  I have been in regular contact with our Jewish students about this.

Mr. Marcus points out and identifies some student groups that adopted a statement drafted by Law Students for Justice In Palestine condemning Israel.  But what he does not mention is that only a handful of student groups out of over 100 at Berkeley Law did this.  He also does not mention that in a letter to the leaders of student groups I expressed exactly his message:  excluding speakers on the basis of their viewpoint is inconsistent with our commitment to free speech and condemning the existence of Israel is a form of anti-Semitism.

Finally, it is important to recognize that law student groups have free speech rights, including to express messages that I and others might find offensive.

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Kenneth L. Marcus Responds:

Berkeley Law Dean Erwin Chemerinsky, a distinguished constitutional law scholar, responds that we should be less concerned about the formal and official exclusion of Zionists from appearing as speakers before nine Berkeley law student organizations. I couldn’t disagree more.  And based on the overwhelming support my article has received, including much international attention, it appears others vehemently disagree as well.

Chemerinsky defends Berkeley Law, my alma mater, on the ground that other Berkeley law student groups have not amended their bylaws to exclude Zionist speakers. This in and of itself is a highly concerning argument. Would it be okay for only 5% or 10% of the campus to be segregated? What percentage of the Berkeley campus should be open to all? Shouldn’t it be 100%? And what is the right number of doors that should be closed to students of any race or ethnicity: isn’t it zero?

Chemerinsky misses the point when he insists that all clubs admit Jewish students as members. No one denies this. Nevertheless, an unmistakable signal is sent to those same students when they are told that they would be barred from appearing as invited speakers. This sends a clear signal: Jews are not welcome, unless they deny their support for Israel which, for many, is an integral element of Jewish identity.

In addition, Chemerinsky’s free speech message misses the point. Excluding Zionists is not like excluding Republicans and environmentalists. It is not just viewpoint discrimination. If a Democratic club amended their bylaws to prohibit Republican speakers from appearing before them, we could accept their right to do so. We might regret that they are restricting the possibility of dialogue. We might prefer the approach of those law student groups that seek balanced presentations, in order to advance civil dialogue and promote learning. But we wouldn’t consider this to be a civil rights issue.

When persons are excluded on the basis of their ethnic or ancestral identity, however, we must respond differently. It would not be acceptable for students to adopt bylaws banning Black or Chinese speakers, perhaps with an exception for Black or Chinese students who agree to criticize their communities. This would immediately be recognized as exclusionary conduct, not protected speech. And we would not accept the response that these groups permit Black or Chinese members, as long as these minorities do not wish to appear as speakers. We would recognize it as rank bigotry; and we would reject it.

While I am pleased to see that Dean Chemerinsky has written a letter, it would be better to see him take action. Discrimination should have no place at the University of California, or at any institution of higher learning. Those who care about free speech should protect it fiercely, but that does not mean invoking it where it does not apply. To do so cheapens the value of free speech, as well as providing intolerable barriers to equal opportunity. Those who want to talk about Israel should be free to do so, regardless of their perspective; they should not silence one side of the debate. And they should certainly not use this as an excuse to restrict participation of any ethnic or religious group.

Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, which has represented Jewish students in the New Paltz, Tufts, and USC cases discussed above. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.

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