Berkeley Law Doubles Down on Antisemitism

Two months ago, as the school year began, nine affinity groups at the University of California, Berkeley, School of Law, adopted a bylaw banning speakers who support Israel. The bylaw was promulgated by a Berkeley front group for Boycott, Divestment, and Sanctions (BDS) of Israel, the movement described by the Anti-Defamation League as “an international campaign aimed at delegitimizing and pressuring Israel, through the… isolation of Israel, Israeli individuals, Israeli institutions, and, increasingly, Jews…” that is recognized as “a manifestion of antisemitism” by the U.S. State Department.

When the organizations, which include the Women of Berkeley Law, the Asian Pacific American Law Students Association, the Law Students of African Descent, and the Queer Caucus, acted to ban Zionists, they self-evidently acted to ban most Jews. It’s much more than the fact that 95% of Jews have favorable views of Israel, as Gallup found in 2019. Zionism is deeply bound up with Jewish identity – for millennia, Jews have prayed to return to a restored Jerusalem at the conclusion of each Yom Kippur service and Passover Seder, while “[a]t a Jewish wedding ceremony, it is customary to break a glass in memory of Jerusalem and swear not to ‘forget thee O Jerusalem’….”

As Berkeley Law’s Dean Erwin Chemerinsky noted on August 26, Berkeley Law’s BDS bylaw would ban both himself and “90 percent or more of our Jewish students.” The ​​Jewish Students Association at Berkeley Law wrote that the fact “[t]hat our organization was one of the few affinity groups not contacted during this process underlies our concern that these actions will disproportionately silence Jewish voices on campus… Many Jewish students’ identities are intertwined with the existence of Israel as an ancestral Jewish homeland.” As Berkeley Law alumnus Kenneth Marcus observed in the Jewish Journal on September 28, “[u]sing “Zionist” as a euphemism for Jew is nothing more than a confidence trick… Zionism is an integral aspect of the identity of many Jews… In this way, the exclusionary bylaws operate like racially restrictive covenants, precluding minority participation into perpetuity.”

Yet as controversy over the Jewish exclusion at Berkeley Law has grown, Chemerinsky appears to have grown defensive. As early as August 29, Chemerinsky rationalized: “[t]here are more than 100 student groups in Berkeley Law, and several have [adopted the exclusionary bylaw], but the overwhelming majority, over 90 percent, have not.” On October 2, he doubled down, asserting that just “[a] handful of student organizations—fewer than 10 out of over 100… adopted the by-law.”

We can begin by noting that it’s a cheap shot to describe 9 as “fewer than 10” and that “Only 9” is not a valid excuse. To state that the problem is limited to nine clubs is beside the point, as the leaders of 26 (and later more as signatories joined) major Jewish and pro-Israel organizations recognized in an October 3 letter: “[t]he bylaw is a vicious attempt to marginalize and stigmatize the Jewish, Israeli, and pro-Israel community and to normalize the requirement that Zionist Jews hide or alter a fundamental aspect of their identity in order to be fully accepted in certain arenas. This is unabashed antisemitism… such a requirement by even one club is too many.” Would it be acceptable for just nine, or as Chemerinsky would say, “fewer than ten” UC Berkeley clubs to ban Black, female, Muslim, or LGBTQ+ students?

We must recognize that this is more than a slip of the tongue by Dean Chemerinsky. Also on October 2, UC Berkeley professors Ron Hassner and Ethan Katz – respectively, the co-director of the Helen Diller Institute for Jewish Law and Israel Studies and the co-director of the Berkeley Antisemitism Education Initiative – minimized the issue by writing: “just nine out of the more than 100 student groups at the law school chose to adopt such a bigoted course of action.” Instead, they ask us to “ignore the paranoia” and note that “UC Berkeley has many Jewish-filled ‘zones.’” Then on October 5, Yom Kippur – the holiest day in the Jewish year, when observant Jewish students spend the day fasting and praying and do not use electronics and couldn’t respond – UC Berkeley’s Chancellor, Carol Christ, sent an email to students. In the message, she explicitly called Marcus’s article on Jews being excluded “misleading”, reiterating that “fewer than ten” clubs – that same odd term for nine – have adopted the bylaw, and urging students to read both Dean Chemerinsky’s own “fewer than ten” piece and Profs. Hassner’s and Katz’s article on Berkeley’s many “Jewish-filled zones.”

This is self-evidently a damage control effort by powers-that-be at UC Berkeley to halt the emerging perception of Berkeley as a campus where antisemitism has free reign. However, by stressing the distinction between prohibited “Jewish-free zones” and permitted “Jewish-filled zones,” the administration is doing vastly more harm than good. What is the difference between a licensed “Jewish-filled zone” and a 21st Century ghetto?  Indeed, the ​​Jewish Students Association at Berkeley Law has poignantly written that “[w]hen an affinity group adopts this by-law or conditions speaking privileges on denouncing Israel, many Jewish people are put in a position all too familiar: deny or denigrate a part of their identity or be excluded from community groups.”

By stressing that only some spaces are welcome to Jews, UC Berkeley forces us to ask, are these spaces separate but equal? And if free speech protects an anti-Jewish bylaw, what prevents Berkeley Law students from founding, for example, a “whites only” club? Exactly what parts of Title VI of the Civil Rights Act of 1964, which “prohibits discrimination on the basis of race, color, or national origin” and explicitly applies to antisemitism, does Berkeley Law still intend to enforce?

Noa Tishby is Israel’s special envoy for combating antisemitism and delegitimization of Israel.