On “Jewish Free Zones” at Berkeley, the Debate between Chemerinsky and Marcus Continues

Dean Chemerinsky writes:

Dear Editor,

Ken Marcus continues to make his nonsensical accusation that there is a Jewish-free zone at Berkeley Law. There is not now and never will be such a thing. Berkeley Law, and the Berkeley campus, has a strict rule prohibiting discrimination and indeed has an “all-comers” rule that all student organizations and all student events must be open to all students. I know of no instance in which this has been violated or any Jewish student excluded.

Mr. Marcus continually focuses on a bylaw adopted by a handful of student groups that pledge to exclude speakers who support Zionism and Israel’s policies. I am stunned that Mr. Marcus never once has called me or anyone at the Law School to learn what has actually happened.

For example, if he had done so, he would know that two dozen law professors, including me, signed a statement: “we also condemn the discriminatory bylaw adopted by a small minority of our law student groups refusing to accept speakers who have Zionist views or beliefs. We believe this rule is not only wrong but is antithetical to free speech and our community values. These bylaws would also impermissibly exclude a large majority of our faculty from participating in the work of these organizations, including our Dean. Many Jews (including some of us signing below who are Jewish) also experience this statement as antisemitism because it denies the existence of the state of Israel, the historical home of the Jewish people.”

If Mr. Marcus had called, he would have learned that no speaker has been excluded on account of these or any other views.

We also could have discussed how student groups inevitably may choose speakers because of their viewpoints. The Jewish Law Students Association can refuse to invite Holocaust deniers. The Black Law Students Association can refuse to invite white supremacists. I may not like the choices they make about what viewpoints they invite or not invite, but that is their First Amendment right.

What is not allowed is excluding a speaker based on religion or race or sex or sexual orientation. And that has not – and I am confident will not happen at Berkeley Law. To be clear, the law, and campus policies, distinguish between word and deed, expression and action. To date the offending student groups have issued statements, declarations, and intentions. Those are constitutionally protected forms of expression. To date, no student has been excluded, cancelled, disinvited, or interrupted. To date no student  has been denied the right or the ability to express themselves, to exercise their freedom of speech. Should that happen—and we are working hard to make sure it does not—that would represent a cross-over from expression to conduct and that would be subject to serious discipline

It is time to stop repeating the lie of a Jewish-free zone at Berkeley Law.

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

Kenneth L. Marcus responds:

Dean Erwin Chemerinsky says he is “stunned” that I “never once has called [him] or anyone at the Law School to learn what has actually happened.” I am flattered at the suggestion that he would like to hear from me. In fact, my colleagues and I have spoken with many people at the law school, if not with the dean himself, and have fully learned what actually happened. Indeed, it seems that by now everyone understands what actually happened. We just don’t understand why Dean Chemerinsky hasn’t been able to fix it.

In fairness, although he has not called me either, Dean Chemerinsky deserves kudos for engaging personally on this issue, and for responding to my articles, even if neither his engagement nor his responses have hit the mark. If we had spoken directly, Dean Chemerinsky might understand that it is too much for even one student group to exclude Zionists (Jews by any other name) in their constitutions and bylaws, let alone nine.

Second, Dean Chemerinsky would also know that Berkeley’s administration should stop denying that these nine groups have created Jewish-free zones. These are Jewish-free platforms, podia, or spaces. The fact is that these groups have constitutionally barred most Jews from speaking to Berkeley Law’s major identity groups. Dean Chemerinsky hasn’t denied even a single fact that I have written about Berkeley Law. He just doesn’t like the term “Jewish-free zones.” There is a simple way to stop people from talking about Jewish-free zones: Abolish them. Eliminate the barriers that prevent any group, including Zionists, from speaking.

Third, if he had reached out, Dean Chemerinsky would stop denying that “no speaker has been excluded on account of these or any other views.” With due respect to the good dean, this is absurd. Mr. Chemerinsky and his Berkeley Law colleagues now acknowledge that these nine groups’ bylaws “impermissibly exclude a large majority of [Berkeley’s Law] faculty from participating in the work of these organizations, including [him].” Since he acknowledges that this is impermissible, he should stop permitting it. More to the point, he should stop funding it.

In addition, we all know what happens when campus groups announce “no Zionists”– Jewish students either stop participating or they suppress that part of their Jewish identity to be accepted. Dean Chemerinsky suggests he will act once a Jewish speaker is turned away or a Jewish student is formally excluded. Once the bylaws were formalized that ship sailed. By not acting now, the damage is done.

And if student groups take further discriminatory action by excluding Zionists in the future, there will be no way for Chemerinsky to know that they have done so. It is not as if they will tell the dean that they are doing what he has described as “impermissible.”

These constitutions are not mere statements or declarations. They are binding commitments. In this case, nine groups have adopted policies that bind them to do what Dean Chemerinsky concedes to be impermissible. This is what judges call “facially” unlawful.

At the end of the day, what matters is not so much what we call these “discriminatory bylaw[s]” (his word) but, rather, what we do about them. In his position, Dean Chemerinsky can do more than sign statements. He can eliminate the discrimination that he has identified. At a minimum, he can inform nine student groups that the University of California will no longer fund them as long as they are bound by their bylaws to do what the federal and state law prohibit.

Kenneth L. Marcus is chairman of the Louis D. Brandeis Center for Human Rights Under Law and Distinguished Senior Fellow at George Mason University Scalia Law School’s Center for Liberty & Law.