October 12, 2022

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.

The Wellesley News one-sided, incendiary and misleading call for “the liberation of Palestine” and pledge of support for the Boycott, Divestment, Sanctions (BDS) campaign against Israel, a force the U.S. State Department has labeled “a manifestation of antisemitism” is more than misguided or misleading, it is flat out disgraceful and dangerous.

BDS’ policy of “anti-normalization,” as the ADL notes, “forbids people-to-people exchanges, dialogue opportunities for Israelis and Palestinians or even interactions between ‘pro-Israel’ and ‘pro-Palestine’ groups and advocates unless the parties involved first recognize Israelis as ‘oppressors’ and ‘colonizers.’” It utterly rejects a two-state solution or any sort of peaceful resolution, and it extends that rejection to Jewish individuals and students who support the peaceful existence of one Jewish state alongside the 22 Arab countries in the Middle East.  Just as BDS boils down the entire Middle East conflict into this one-sided and dangerous understanding, so does the Wellesley News.  It dangerously furthers the othering of Jews and takes a stance that will encourage antisemitism.

The editorial board never states how much of historic “Palestine” – which, as the name of a British colony or “Mandate” from 1920-48, included all of modern-day Israel – they would “liberate” from the Jewish state. However, the article’s usage appears to indicate that they consider the entire country “occupied” territory – the position of BDS, which the article explicitly endorses. It also misleadingly calls for “granting Palestinian refugees the right to return to their homes” – but since the refugees from the 1948 Partition of Palestine are the only group considered “refugees” over multiple generations, this is coded language for demographically overwhelming, and ultimately eliminating, the Jewish state. Nor does it mention that most Israelis are descendants of Middle Eastern Jews who were expelled from Muslim-majority countries during and immediately after the 1948 conflict.  In addition, it fails to even acknowledge the number of times Israel has offered land for peace or the challenges Israel faces in protecting its citizens from terrorism.

The article suggests that “Palestinian students on campus, especially international students… may hesitate to speak out for fear of retribution.” The authors do not appear to understand that this is what is currently happening to Jewish students, who again and again are being asked to suppress part of their identity to be welcome in certain spaces, and are being shamed and demonized if they don’t. To prove that point, the editorial board strongly and unequivocally condemns Wellesley’s policy “to encourage more Jewish college students to visit Israel” on Birthright trips. In fact, in September of 2021, a survey of “college students who claim a strong sense of Jewish identity and connection to Israel” by the Louis D. Brandeis Center for Human Rights Under the Law found that 50% felt the need to hide their Jewish identity.

Very dangerously, the editorial board advocates support for the Mapping Project, a map that tracks the Jewish institutions of the Commonwealth of Massachusetts and labels them “highly militarized forces that share resources and information to enforce the intersecting systems of white supremacy and capitalism.” The “highly militarized forces” whose information the map publicizes include teen- and youth-focused organizations like the Hillel Council of New England, the Jewish Teen Foundation of Greater Boston, and even a Jewish high school, Gann Academy, as well as the Synagogue Council of Massachusetts, the Jewish Arts Collaborative, the Jewish Journal – and many more. This is happening as pro-BDS radicals call Jewish community organizations “Zionist organizations hiding behind Judaism. So every single organization on that list is a legitimate target…” and publicly state: “We need to pay attention to the Zionist synagogues. They are your enemies.” As I warned on June 15, “[w]hat the Mapping Project has built is a plan for a pogrom.”

The editorial board concludes by comparing “Israel’s settler-colonial regime” to “Russia’s invasion of Ukraine [and] the fall of Roe v. Wade…” in a further attempt to demonize the Jewish state, and, in turn, Jewish students. The comparisons are wildly inept. Israel, like Ukraine, has been in a struggle for survival for its entire existence against much larger neighbors; it’s no wonder that Ukraine’s President Zelensky has said that he wants his country to become“a ‘‘big Israel’ with its own face[,]” a security-focused democratic state. In Israel, about 98% of those who apply for an abortion receive one, and the government further liberalized an already robust pro-choice policy after Roe was struck down by allowing women “to undergo abortions at their local health centers, rather than at hospitals or surgical clinics.” The column also repeats the widely inaccurate comparison of Israel and South Africa, calling Israel “apartheid” no fewer than four times in a single article. In fact, Israel is the only true democracy in the Middle East, with Arab representation at its highest levels of government, the home of Asia’s largest Pride celebrating the LGBTQ+ community, and has a Jewish population whose majority is from outside Europe, including 160,000 Africans rescued from Ethiopia.  It also completely ignores the idea that Israel celebrates Jewish self-determination and provides a safe haven for Jews who have been discriminated against, persecuted and even annihilated for thousands of years.

Wesley College President Paula A. Johnson strongly condemned the editorial board’s endorsement of BDS and the Mapping Project and should be commended for forcibly speaking out against this dangerous endorsement. While President Johnson understands the danger of the BDS campaign against Israel, the editors of the Wellesley News have been sold a bill of goods by the antisemitic BDS campaign. As I wrote on June 1 after the Harvard Crimson endorsed BDS, “[t]he fact that budding journalists at one of the country’s most selective colleges would spread such a lie is shocking but not surprising… scores of students and faculty have been convinced they are supporting a nonviolent, peaceful movement for Palestinian independence, without understanding what they are truly backing.”

As the AMCHA Initiative’s researchers have found, “[s]chools that are promoting BDS or other kinds of anti-Zionist rhetoric…are three to eight times more likely to have incidents that target Jewish students for harm,” including physical assault, harassment, the suppression of speech, and destruction of property. Perhaps some on the editorial board meant well, but at a time when antisemitism is soaring in the United States – the Anti-Defamation League (ADL) found an all-time high of antisemitic campus incidents in the 2020-21 school year, with 43 percent of Jewish college students personally experiencing or witnessing antisemitic activity – it’s important to present the full picture and not one that is likely to alienate Jewish students, breed anti-Jewish bigotry and ignite a campus firestorm.

Jacob Baime is Chief Executive Officer of the Israel on Campus Coalition (ICC), a leading organization in the fight against anti-Israel activity and antisemitism in the United States. He was also the Area Director of AIPAC’s New England Region and served as Campus Coalition Director for Massachusetts Lieutenant Governor Kerry Healey.