Is the Tide at Berkeley Beginning to Turn?

Last week, a Jewish Journal article I authored exposing Berkeley Law’s Jewish-free zones touched a nerve. Over the last few days, it has been discussed on countless platforms, widely praised, and retweeted by celebrities, elected officials, and others, for “exposing this appalling anti-Jewish discrimination” (as the ADL’s Jonathan Greenblatt put it). As is the way with such things, the article was also criticized, especially among Berkeley faculty displeased it made “major news.” But what is significant – more than the praise or the criticism – is that the tide is beginning to turn at Berkeley Law.

Understanding the change requires a recap. At the start of this academic semester nine Berkeley Law groups changed their bylaws to ban Zionists from speaking to their groups. Berkeley Law’s Jewish Student Association immediately expressed alarm about “the impact this by-law is having on our Jewish community.” They observed that these bylaws put many Jewish students “in a position all too familiar: deny or denigrate a part of their identity or be excluded from community groups.” Berkeley Law Dean Erwin Chemerinsky, a progressive Zionist, acknowledged that  he himself would be banned from speaking before the nine student groups, as would 90% of Berkeley’s Jewish law students. According to Pew, the vast majority of Jews view Israel as integral to their Jewish identity.

Chemerinsky’s initial criticism was qualified, however. He emphasized that only nine groups were banning Zionist speakers, as if this were good news. And he chastised one of the first newspapers to report on it calling it a “minor incident” that “hardly should be news” and claiming the media was using it to “paint a misleading picture.” He was troubled that a particular viewpoint was silenced but seemed unaware that it was also a particular community – his own – that was being harmed. He failed to grasp the ramifications of what these groups are doing, or he just wanted it to go away without any attention or fanfare. But make no mistake, this was no mere act of viewpoint discrimination. In barring Zionists, these nine groups were banning a people. And Berkeley’s administration failed to resolve this problem, leaving the discriminatory boycotts in place.

Several Jewish establishment figures decided to be quiet. Quietism has a long pedigree in Jewish communal history, but not necessarily a proud one. At all periods, Jewish establishment voices have urged community members to endure persecution in silence, assimilating to deteriorating conditions. The idea is that anything we say or do could provoke a backlash that makes things worse.

The problem is that things are already getting worse – and it doesn’t help to permit anti-Jewish forces to entrench their gains. The troubles in Berkeley follow efforts to exclude Zionists from various campus spaces around the country. The Brandeis Center has recently convinced the Biden administration to investigate such incidents at the University of Southern California and the University of Vermont. But we are seeing such problems nationwide. When we permit serious discrimination to persist at major institutions like the University of California’s flagship school, we should expect that it will recur elsewhere.

Since last week’s article, Berkeley’s Jewish apologists have circled their wagons. Chemerinsky criticized my article; I have refuted his criticisms. Two Berkeley professors, Ron Hassner and Ethan Katz, expressed indignation – not so much at what they call the “nakedly discriminatory” bylaws that they concede is “bound to make Jewish students feel excluded,” nor at Berkeley’s administration, for its feckless response – but at me, similar to how Chemerinsky initially blamed the media. They call my claims “outlandish” but not once do not deny that they are true. They call me inflammatory, because I rang the alarm when their house caught fire. Fortunately, the students are speaking back. On Tuesday evening, for example, over 150 student organizations, several at Berkeley, issued a joint statement urging the nine law student groups to rescind their discriminatory bylaws provisions. “As members of the global Jewish community,” they write, “we recognize these bylaws as a deliberate attempt to exclude Jewish students from the UC Berkeley campus community.”

Now, with the whole world talking about the outrage – the exclusion of Jews, not the fact that I’ve written about it – Chemerinsky has written yet again, this time in the Daily Beast. Chemerinsky complains again about my initial article without challenging any of its factual assertions. He falsely claims that “all some student groups have done is express their strong disagreement with Israel’s policies,” when the undisputed facts show that they changed their bylaws to bar Zionist speakers. But then he does something remarkable.

Chemerinsky announces that these nine groups will be punished if they follow through on their pledge to ban Zionist speakers. “Most importantly,” Chemerinsky writes, “no group has violated the Law School’s policy and excluded a speaker on account of being Jewish or holding particular views about Israel. Such conduct, of course, would be subject to sanctions.”

At long last, under pressure, Berkeley Law’s Dean is pledging to enforce Berkeley’s anti-discrimination rules against any of these nine organizations that act upon their new bylaw provisions. He must be held to it. This is a significant commitment, and it’s a far cry from his initial statement. Chemerinsky could not pledge to punish these groups if he believed that their actions were constitutionally protected. Implicit in his pledge is the understanding, delayed as it is, that neither our Constitution nor our laws protect actions that restrict equal protection. Implicit also is the awareness that anti-Zionist actions violate anti-discrimination rules. Anti-Zionism is racism, pure and simple.

It is hardly enough, though, to tuck an important policy statement into a parenthetical comment in an internet publication. Chemerinsky must take the next step and make it formal. And he must convince all Berkeley law student groups to remove anti-Zionist provisions from their bylaws. He should remind these groups that their future application for bar membership is contingent upon a moral character determination. Adoption of discriminatory bylaws is hardly evidence of high moral character. He should remind them that exclusionary bylaws are inconsistent with their status as university-funded, registered student organizations. As nearly 30 Jewish, civil rights, and pro-Israel organizations put it in a joint statement issued on Monday evening, “the nine student organizations should rescind the new, discriminatory provisions from their bylaws or face appropriate sanctions for their failure to do so.” The law, and basic standards of fairness and decency, demand nothing less.

Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.