Letter to Dean Chemerinsky on Behalf of American Association of Jewish Lawyers and Jurists

To read a related op-ed by Kenneth Marcus and response by Erwin Chemerinsky, click here.

The American Association of Jewish Lawyers & Jurists (AAJLJ) is the voluntary bar association of American Jewish lawyers. We are a national nonprofit association that represents the American Jewish legal community on legal issues that affect, and are of importance to, the community, including; freedom of religion, civil rights, human rights, access to justice, social justice, and defense of the rule of law. The Association also advocates upon and defends against matters affecting the global Jewish community such as antisemitism and those which are covers for antisemitic claiming only a desire to undermine the State of Israel such as the BDS movement. We are also privileged to have amongst our members student lawyers.

We were appalled to hear that at a prominent law school, such as UC Berkeley, antisemitic acts are being repeatedly tolerated, condoned, and by such inaction, encouraged. That nine (9) student groups have been permitted to amend their bylaws to ensure that no speakers who support the state of Israel or Zionism are permitted to be invited to speak is abhorrent and appalling. For millennia, ever since the first diaspora, Jewish liturgy has called for a return to the land of Israel and a clear message has been given to Jews, you as a people, a race and a religion hold beliefs that are not welcome even to speak at Berkeley.

At its core, such a stance is intellectually bankrupt, as the students are openly foreclosing having a speaker being heard, including current faculty and staff, because of their internal beliefs, even when speaking on non-Israel related issues. These actions cast doubt on the caliber and quality of both lawyers and faculty at Berkeley.

The student lawyers are being taught that law is a tool by which a race or religion can be openly discriminated against, in exactly the same way that black people were refused the right to purchase properties in certain areas, in exactly the same way that voting boundaries have been gerrymandered. Using the bylaws to restrict is using a legal tool to oppress — lawfare.

The faculty clearly is bereft of ideas but also knowledge and research in that it is unable to apply the law to protect its Jewish students. The Supreme Court was clear in Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the L. v. Martinez, 561 U.S. 661, 130 S. Ct. 2971, 2973, 177 L. Ed. 2d 838 (2010) that a college of law’s non-discrimination policy barring discrimination on a number of bases, including religion and sexual orientation. UC Berkeley has such a policy  If a society violates such a policy, that can be found here for faculty and here for students.

UC Berkeley is openly contradicting the well-trodden principle that “[a] vibrant dialogue is not possible if students wall themselves off from opposing points of view”), Martinez 561 U.S. at 705, 130 S.Ct 2971. As such, a clear message needs to go out from the law school that in the form of prohibiting these organizations — namely Berkeley Law Muslim Student Association, Middle Eastern and North African Law Students Association, Womxn of Color Collective, Asian Pacific American Law Students Association, Queer Caucus, Community Defense Project, Womxn of Berkeley Law, and Law Students of African Descent — from using funds, facilities, and official channels of communication if their bylaws are predicated on discriminatory criteria.

Bizarrely, as we can see in light of the Abraham Accords, with record engagement, investment and dialogue between Muslim lands and the state of Israel, such obscurantism in a student society would not be seen in the United Arab Emirates, or Morocco. The fact that any female or queer group would be targeting Israel, where such individual groups enjoy more freedoms than in this country, is intellectually bankrupt.

In the spirit of free speech, I offer myself to speak at Berkeley Law school to debate anyone on the issue of whether a law school is permitted, constitutionally, to regulate student groups that promote discriminatory conduct. That is if Berkeley itself does not find a Zionist Jew of North African descent’s personal beliefs a bar to debating law.

It goes without saying that until this matter is resolved and we, as an organization, can be assured that UC Berkeley is educating its lawyers properly, that we would urge members of the AAJLJ to think twice before hiring a UC Berkeley law graduate. They are clearly ones who might crumble in the face of a contrary opinion, which we know is unheard of in the law.

Robert Garson is President of the American Association of Jewish Lawyers and Jurists, a national organization representing the interest of Jewish lawyers and community at large.