Paul L. Caron

Tuesday, April 16, 2024

More Commentary On Student Protest At Berkeley Law Dean Chemerinsky's Home

Following up on my previous posts:

New York Times, At Berkeley, a Protest at a Dean’s Home Tests the Limits of Free Speech:

The dean of Berkeley’s law school is known as a staunch supporter of free speech, but things became personal for him when pro-Palestinian students disrupted a celebratory dinner party for some 60 students at his home.

Erwin Chemerinsky, the law school dean, hosted the dinner on Tuesday night in the backyard of his Oakland, Calif., home. The party was supposed to be a community building event, open to all third-year law students, with no speeches or formal activities.

But a third-year law student and a Palestinian activist, Malak Afaneh, stood up at the event, holding a microphone, and launched into a speech.

As she began to talk, Mr. Chemerinsky, a noted Constitutional scholar, can be seen shouting, “Please leave our house! You are guests in our house!”

Catherine Fisk, another Berkeley law professor and Mr. Chemerinsky’s wife, can be seen with her arm around Ms. Afaneh, trying to yank the microphone away and pulling the student up a couple steps.

Ms. Afaneh and other student protesters described Ms. Fisk’s struggle for the microphone as a disproportionate and violent response. Students, they said, had a right to speak at a university gathering.

Mr. Chemerinsky said the dinner was paid for by the university. But he said that the students, who brought their own microphone and amp, had no such free speech rights in a private home, at a dinner with no planned remarks.

In the past, Mr. Chemerinsky has supported speech rights for pro-Palestinian students, including the right to block Zionists from speaking to their groups. But this latest incident shows how the Israel-Hamas war has intensified and complicated the free speech debate. As pro-Palestinian students stage sit-ins and disrupt events at campuses across the country, some administrators, pressed by donors and politicians, have cracked down on unruly behavior, arresting and suspending students. ...

Mr. Chemerinsky said that he himself was the subject of an antisemitic flier, circulated earlier in the week, which depicted a cartoon image of him gripping a bloody knife and fork, with the words “No Dinner With Zionist Chem While Gaza Starves.” ...

Camilo Pérez-Bustillo, the executive director of the local chapter of the National Lawyers Guild, said that Mr. Chemerinsky was not singled out because he is Jewish. “He was being targeted because he’s failed to take a public position on a matter of urgency,” Mr. Pérez-Bustillo said, “which is U.S. complicity with the unfolding genocide.”

In the video, Ms. Afaneh said, the National Lawyers Guild “has informed us this is our First Amendment right.” ...

After the dinner altercation, the Law Students for Justice in Palestine chapter demanded the resignations of Mr. Chemerinsky and Ms. Fisk, and called for a Palestine studies program that centers on the “resistance and the right to return in a settler-colonial context.”

Richard Leib, the board chairman of the University of California system, and Ms. Christ, the Berkeley chancellor, have supported the couple.

“I am appalled and deeply disturbed by what occurred at Dean Chemerinsky’s home last night,” Ms. Christ said in a statement on Wednesday. “While our support for Free Speech is unwavering, we cannot condone using a social occasion at a person’s private residence as a platform for protest.”

Chronicle of Higher Education, ‘Get Rid of the Zionists Here’: When a Dean Becomes the Target of Student Protestors:

[T]he student activists are characterizing the interaction as involving an act of violence, one with sweeping symbolic resonances. “Last night,” Law Students for Justice in Palestine wrote on Instagram, “Professor Catherine Fisk physically assaulted a Palestinian Law Student activist. ... This attack on a Palestinian Muslim law student is only the latest attack on Palestinian, Muslim, and pro-Palestinian students at the University of California, Berkeley.”

In a video posted to TikTok after the confrontation, Afaneh expatiated on what she characterized as Fisk’s assault. “She put her arms around me, grasped at my hijab, grabbed at my breasts inappropriately ... and threatened to call the cops on a gathering of Black and brown students.” In Afaneh’s view, Fisk “assaulted me because to her, a hijabi wearing, keffiyah repping Palestinian Muslim student that felt comfortable to speak in Arabic was enough of a threat to her that I was justified to be assaulted.”

This, she suggested, had its geopolitical analogue in the war in Gaza. “It was the classic thing that Palestinian lives are constructed to be seen as allowed to be harmed, to be killed, and to be slaughtered, while white ones are allowed to live. Professor Fisk embodied the Islamophobia, the deep anti-Arab racism, and the deep anti-Palestinian sentiment, that these Zionist administrations are built on.”

When I caught up with Chemerinsky via Zoom on Thursday evening, he seemed depressed, wounded by recent events. He had the dazed look of someone unexpectedly navigating a firestorm. A few hours later, he would appear on CNN. One of the first things I wanted to know was whether he and Fisk anticipated a lawsuit. “Might they sue?” he said, pausing as if to mull the possibility. “I feel confident that there was no assault.” ...

I asked Chemerinsky, who has been in law-school administration since 2008 and in legal academia since 1980, whether the campus tensions of the last few months felt unprecedented to him. “I think it’s an unprecedentedly weird moment,” he said. “Our society is more deeply divided than it’s been at any time since Reconstruction. I think we’ve come to a point where there’s much more vitriol in expression than we’ve seen before.”

He added that the war in the Middle East had pitted student against student in a way that felt new to him. “I was in college during the Vietnam War. The students were almost all on one side. Now my students are deeply divided.”

Paul Horwitz (Alabama), This is Not a One-Free-Bite Case:

I will add only one point to the conversation about the Chemerinsky fracas. Dean Chemerinsky's statement about the incident says:

The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.

This does not appear to rule out taking academic disciplinary measures against the student or students who participated in Tuesday's disruption. But it doesn't exactly rule them in either. It reads more as if Chemerinsky is warning students about what will happen going forward. I hope I'm reading it wrong, and that Berkeley will seek to impose disciplinary measures with respect to this incident.

David Lat, A Tale Of Two Protests: UVA v. Berkeley Law:

I emailed Dean Chemerinsky, expressed my sympathy and support for him and Professor Fisk, and asked whether the students who disrupted his dinner might be disciplined. He wrote back, “I do not know whether discipline will be sought against the student who did this.”

I then suggested to him that he should bring disciplinary proceedings against the students; since it was his home and hospitality that were so egregiously violated, he and Professor Fisk most definitely have standing. He responded that they don’t yet know whether they will pursue discipline themselves—but if they do, it would by law be confidential within the university.

Steve Lubet (Northwestern), Will There Be Discipline at Berkeley?:

My guess is that there will be no disciplinary proceedings because (1) it is very late in the school year and the student, Malak Afaneh, is about to graduate; and (2) Erwin probably wants to put the issue behind him.

On the other hand, Afaneh may face employment consequences, depending on her post-graduation plans. A public interest job is probably safe, if she has one, but a law firm might have second thoughts about hiring her. I am not advocating consequences, but I am not a Biglaw management partner.

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