Chronicle Of Higher Education Debate: Is UC-Berkeley Law School Discriminating Against Jews?

Chronicle of Higher Education Op-Eds: 

Mohammad Fadel (University of Toronto), No, Berkeley Isn’t Discriminating Against Jews:

Student groups have a right to impose a moral choice about Zionism.

The University of California at Berkeley School of Law has become the latest front in the continuing campus wars about Palestine, Israel, and what it means to be a progressive. After a student group, the Berkeley Law Students for Justice in Palestine (or BLS-P), announced that nine student groups at the law school had adopted a bylaw in which they agreed not to lend platforms to Zionist speakers, a group of Zionists made outrageous claims that Berkeley Law students were antisemitic and that they were attempting to establish “Jewish free” zones on campus.

The controversy prompted the dean of the law school, the noted First Amendment scholar Erwin Chemerinsky, to publish a Daily Beast article denying the existence of Jewish-free zones at Berkeley Law or anywhere on the Berkeley campus. The dean affirmed the free-speech rights of the student groups at Berkeley Law who adopted the bylaw and denied that it had the sinister effects that the Zionists claimed. But he also felt obliged to make the now-ritualistic condemnations of the Boycott, Divestment, and Sanctions movement without ever commenting on why reasonable people might support it.

Steven Lubet, a retired law professor, also wrote an op-ed in these pages which, after he affirmed the students’ First Amendment rights, nevertheless proposed ways to sanction them. Not content with proposing an academic boycott of these student groups, he made the extraordinary suggestion that federal and state judges should refuse to hire the student leaders behind the exclusion of Zionist speakers as law clerks — a sought-after position for new graduates.

Chemerinsky also sent a statement to the Berkeley Law community that included a not-so-thinly-veiled threat to students. ...

The dean’s threat to sanction students and student groups who uphold the bylaw raises troubling questions under the First Amendment. While Berkeley Law certainly cannot engage in viewpoint discrimination, it is not clear why a student organization cannot engage in viewpoint discrimination, even if this has the incidental effect of excluding some students from joining that group. Many student organizations are organized with the aim of promoting a particular viewpoint. An organization’s ability to engage in expressive activity would be radically undermined if it were forced to admit as members persons who seek to undermine that commitment. In any event, the allegedly offensive bylaw is silent about membership and speaks only to what kind of speakers progressive student groups should, or should not, invite.

Student organizations’ freedom of speech would be radically curtailed if they were compelled to listen to speakers whose views were repugnant to that of their organization.

The conflict in historical Palestine is not inconsequential, like the choice between rooting for the Chicago Cubs or the San Francisco Giants. It is a choice with grave implications for the kinds of values that animate everyday discussions in a law school setting — freedom, democracy, self-determination, and equality. The opposition toward the steps taken by the BLS-JP in support of these values for Palestinians is an attempt to trivialize the Palestinian cause as though no important principles are at stake. The BLS-JP initiative, by contrast, forces all of us to confront what Israel has done and continues to do to Palestinians in the name of Jewish self-determination. It forces us to confront our responsibility as Americans, since Israel acts with the unqualified military, economic, and political support of the United States. It forces us to confront our responsibility as legal academics who claim to teach and uphold values like democracy, equality, justice, and self-determination. Israel’s behavior no doubt embarrasses its many liberal friends in the legal academy who desperately wish that Israel were a liberal democracy, but this embarrassment does not typically lead them to speak publicly against Israel. The goal of Berkeley’s law students is therefore to force their community — law students and legal academics — out from behind convenient and vacuous platitudes about commitments to peace and the two-state solution.

Such a policy might make some Jewish law students at Berkeley or legal academics feel uncomfortable. But that is the point of being put to a moral choice. As Edward Said wrote in an 1989 letter to Jewish intellectuals that was only recently published, “American Jewish intellectuals have to declare themselves plainly and in the full light of day either for the joint, politically equal survival of two peoples, or they should say openly that they feel Palestinians are and should remain less equal than Jews.” The same is true for all legal academics who claim to support progressive legal change: We all have an obligation to declare, openly, whether we recognize Palestinian equality. The BLS-JP initiative is doing no more than requiring speakers who claim to be progressive to make their position on the equal humanity of Palestinians clear.

Steven Lubet (Northwestern University Pritzker School of Law), Yes, Berkeley Is Silencing Jews:

A defense of student bans on “Zionists” misses the point.

It’s not unusual for student organizations to pass resolutions critical of, or even hostile to, Israel, but nine law-student groups at the University of California at Berkeley broke radical new ground when they adopted a bylaw banning all speakers who hold pro-Israel views, regardless of the topics they would address. This bylaw applies in personam, as lawyers say, directed at individual students, faculty members, and others who support Israel’s right to exist, rather than the Israeli government or institutions. It is so extreme that the Berkeley law dean Erwin Chemerinsky — a progressive who has represented the family of a pro-Palestinian activist killed in an Israeli military operation — took strong exception, saying that the measure could be seen as antisemitic. I made a similar point in these pages, noting that the ban violates basic principles of academic freedom and open inquiry.

Mohammad Fadel of the University of Toronto presented an eloquent defense of the Berkeley students, also in these pages, but only by omitting the actual language of the resolution, as well as the students’ rationale for it, in favor of his own cleaned-up and more politically palatable version. Fadel repeatedly refers to the “exclusion of Zionist speakers,” to denying platforms to “Zionist speakers,” and to the right of students to avoid “repugnant views,” as though the prohibition runs only to the content of presentations. In fact, the bylaw bars all speakers who “have professed or continue to hold” Zionist views, no matter the subject matter or occasion. This provision amounts to a de facto ban on about 80 percent of the world’s Jews, who consider the existence of Israel central to Jewish identity. ...

The great irony is that Fadel closes his essay with a quote from the late Edward Said, calling upon Jewish Americans to declare themselves “for the joint, politically equal survival of two peoples.” Anyone heeding Said’s admonition today — advocating the political independence of both Israelis and Palestinians — would be prohibited from speaking on that subject, or any other, to nine law-student organizations in Berkeley.

Prior TaxProf Blog coverage:

• UC-Berkeley Law Faculty, Statement In Support Of Jewish Students (Oct. 11, 2022)
• Steven Lubet (Northwestern), A Free-Speech Scandal at Berkeley Law (Oct. 17, 2022)