NY Times: At UC-Berkeley Law, A Debate Over Zionism, Free Speech, And Campus Ideals

Following up on my previous posts (links below):  New York Times, At Berkeley Law, a Debate Over Zionism, Free Speech and Campus Ideals:

A student group, Law Students for Justice in Palestine, barred supporters of Zionism from speaking at its events. The outrage — and legal misunderstandings — grew from there.

On the first day of the fall semester, Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, learned that a student group created a bylaw that banned supporters of Zionism from speaking at its events.

Mr. Chemerinsky said he rarely used profanity but did so in that moment. As a constitutional law scholar and co-author of a book about campus free speech, Mr. Chemerinsky said that he knew the group, the Berkeley chapter of Law Students for Justice in Palestine, had the legal right to exclude speakers based on their views.

But he also knew the bylaw, which eight other student groups also adopted, would be polarizing within the law school and used as a cudgel by forces outside of it.

In hindsight, he said, he underestimated the response. The story “went viral in a way that I could have never possibly imagined,” he said.

The controversy, pushed along online by conservative commentators, hits two of the pressure points in campus politics today. The bylaw was adopted as antisemitism is rising across the country. And some critics of academia have cast left-wing students as censors who shout down other viewpoints, all but strangling, they say, honest intellectual debate.

That collision of issues all but guaranteed a tense debate over free speech, even if a broad swath of speech experts say that student groups are allowed to ban speakers whose views they disagree with.

“A student group has the right to choose the speakers they invite on the basis of viewpoint,” said Mr. Chemerinsky, who is Jewish and a Zionist. “Jewish law students don’t have to invite a Holocaust denier. Black students don’t have to invite white supremacists. If the women’s law association is putting out a program on abortion rights, they can invite only those who believe in abortion rights.”

Mr. Chemerinsky said that excluding speakers based on race, religion, sex or sexual orientation would not be allowed, but he noted that the student groups were excluding speakers based on viewpoint. True, he said, many Jews view Zionism as integral to their identity, but such deep passions do not change the law.

Other legal experts noted that the controversy showed just how mangled the understanding of the First Amendment had become, even at a place like Berkeley, the epicenter of the 1960s free-speech movement. The debate, they said, should focus on whether these bans align with the academic ideal of open, intellectual debate. Even if student groups can prohibit speakers, should they? And should such bans be codified — formally adopted with a bylaw? ...

The Office for Civil Rights at the Education Department said on Dec. 13 that it would open an investigation into whether Berkeley responded appropriately, according to Arsen Ostrovsky, who filed a complaint on behalf of the International Legal Forum, a Tel Aviv-based antisemitism watchdog group, and Gabriel Groisman, a Florida-based attorney.

Opening an investigation does not imply that the office has determined that the case has merit, according to a letter sent to Mr. Ostrovsky by the Office for Civil Rights.

Mr. Chemerinsky said the complaint, which calls on Berkeley to “immediately invalidate” the bylaw, includes the same flawed assumptions from previous attacks. He said he was confident Berkeley was on “strong legal ground.”

“Every dean or school administrator always worries about being accused of discrimination,” he said. “I never imagined I would be accused of discrimination against Jews.”

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)
• San Francisco Chronicle, Complaint Alleges ‘Profound And Deep-Seated Anti-Semitic Discrimination’ At UC-Berkeley Law School (Dec. 14, 2022)