If it wasn’t so frightening, one might be able to recognize the irony in the sight of campus progressives trying so hard to virtue signal that they fall victim to a deep moral shame.
Nine different law student groups at the University of California Berkeley’s School of Law, my own alma mater, have begun the new academic year by amending bylaws to ensure that they will never invite any speakers that support Israel or Zionism.
These are not groups that represent only a small percentage of the student population. They include Women of Berkeley Law, Asian Pacific American Law Students Association, Middle Eastern and North African Law Students Association, Law Students of African Descent and the Queer Caucus.
Berkeley Law’s Dean Erwin Chemerinsky, a progressive Zionist, has observed that he himself would be banned under this standard, as would 90% of his Jewish students.
It is now a century since Jewish-free zones first spread to the San Francisco Bay Area (“No Dogs. No Jews.”). Nevertheless, this move is frightening and unexpected, like a bang on the door in the night.
Berkeley law students are not the first to exclude Zionists. At the State University of New York at New Paltz, activists drove two sexual assault victims out of a survivor group for being Zionists. At the University of Southern California, they drove Jewish student government vice president Rose Ritch out of office, threatening to “impeach [her] Zionist ass.” At Tufts University, they tried to oust student judiciary committee member Max Price from the student government judiciary committee because of his support for Israel.
These exclusions reflect the changing face of campus antisemitism. The highest-profile incidents are no longer just about toxic speech, which poisons the campus environment. Now anti-Zionist groups target Jewish Americans directly.
Anti-Zionism is flatly antisemitic. Using “Zionist” as a euphemism for “Jew” is nothing more than a confidence trick. Like other forms of Judeophobia, it is an ideology of hate, treating Israel as the “collective Jew” and smearing the Jewish state with defamations similar to those used for centuries to vilify individual Jews. This ideology establishes a conspiratorial worldview, sometimes including replacement theory, which has occasionally erupted in violence, including mass shootings. Moreover, Zionism is an integral aspect of the identity of many Jews. Its derogation is analogous, in this way, to other forms of hate and bigotry.
Some commentators defend these exclusions on speech grounds, arguing that “groups also have a right to be selective, to set their own rules for membership.” They are wrong about this. As Dean Chemerinsky explains, the free speech arguments run in the other direction: Berkeley’s anti-Zionist bylaws limit the free speech of Zionist students.
Discriminatory conduct, including anti-Zionist exclusions, is not protected as free speech. While hate speech is often constitutionally protected, such conduct may violate a host of civil rights laws, such as Title VI of the Civil Rights Act of 1964. It is not always the case that student groups have the right to exclude members in ways that reflect hate and bigotry. In Christian Legal Society v. Martinez, the U.S. Supreme Court upheld the right of another Bay Area University of California law school, Hastings College of the Law, to require student groups to accept all students regardless of status or beliefs. Specifically, the Court blessed Hastings’ decision to require Christian groups to accept gay members.
Putting legal precedents aside, major universities generally require student groups to accept “all comers,” regardless of “status of beliefs.” They also adopt rules, aligned with federal and state law, prohibiting discrimination on the basis of various classifications such as race, ethnicity, heritage or religion. Those who adopt such rules may not exclude Jews from these protections.
The real issue here is discrimination, not speech. By adopting anti-Jewish bylaw provisions, these groups are restricting their successors from cooperating with pro-Israel speakers and groups. In this way, the exclusionary bylaws operate like racially restrictive covenants, precluding minority participation into perpetuity.
Universities should not have to be legally compelled to do what is obviously right. Anti-Zionist policies would still be monstrously immoral, even if they were not also unlawful. The students should be ashamed of themselves. As should grownups who stand quietly by or mutter meekly about free speech as university spaces go the way of the Nazis’ infamous call, judenfrei. Jewish-free.
Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, which has represented Jewish students in the New Paltz, Tufts and USC cases discussed above. He served as the 11th assistant U.S. secretary of education for civil rights.
