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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 First Amendment does not allow us to exclude any viewpoints and I believe that it is crucial that universities be places where all ideas can be voiced and discussed. In addition, the Law School has an ‘all-comers’ policy, which means that every student group must allow any student to join and all student group organized events must be open to all students. … Most importantly, no group has violated the Law School’s policy and excluded a speaker on account of being Jewish or holding particular views about Israel. Such conduct, of course, would be subject to sanctions.
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 BLS-JP must therefore be free not to invite speakers who are rabidly anti-Palestinian, for example, without running afoul of Berkeley Law’s speech policies. Could we imagine a student law-school association in the 1960s dedicated to the civil rights of African Americans being compelled to invite Bull Connor or another speaker who advocates “segregation today ... segregation tomorrow ... segregation forever”?
It goes without saying that Berkeley Law must remain an institutionally vibrant setting for debate. But this is the responsibility of the university, not student groups. It is especially ironic that concerns about speech suppression should be directed against student groups engaged in pro-Palestine advocacy in light of the fact that pro-Palestinian speech is regularly targeted and harassed on campuses in the United States and that numerous state laws penalize individuals and businesses that support a boycott of Israel.
It seems that the real complaint is that the bylaw might have the effect of excluding large numbers of Jewish students from organizations they would otherwise wish to join. The Jewish Students Association at Berkeley Law (or JSABL) made this argument, stating that the effect of this bylaw is to “disproportionately silence” Jewish students and to “alienate” them from various student groups. The JSABL made the further argument that Jewish students should not be forced to identify “as either ‘pro-Palestine’ and therefore ‘anti-Israel,’ or ‘pro-Israel’ and therefore ‘anti-Palestine’” as a condition for participating in student organizations.
This argument, however, is based on the false assumption that Jews, by default, are Zionists. In fact, recent surveys show that 34 percent of American Jews agree that Israel’s treatment of Palestinians is racist, 25 percent agree that it is an apartheid state, and a whopping 66 percent do not believe Israel is sincerely interested in peace. The statement is also based on the false assumption that the conflict in Palestine is a zero-sum game, in which one side can prevail only at the expense of the other.
Putting students, or anyone for that matter, to a moral choice on a political question of grave concern is not silencing. It is not unfair, for example, for a student organization to state that a foundational principle of the group is vocal opposition to ethnic cleansing. Taking a stance on crucial moral and political questions is a requirement of our accountability to one another as equal members of a human community. This is particularly true in the context of a law school, where law and justice are core concerns. The JSABL may very well believe that neutrality is a morally acceptable position to take on what has happened and is happening in Palestine. If so, I am certain that Berkeley Law affords them every opportunity to make that case to their classmates. But the BLS-JP and its allies have the equal right to deny that neutrality is morally or politically tenable. Students have the right to make solidarity with the Palestinians a core principle of their organizations in order to combat the pervasive “progressive except Palestine” stance of so many liberals. And the First Amendment certainly gives them the right not to invite as a speaker anyone who believes that Israel’s treatment of Palestinians is morally and politically acceptable.
Chemerinsky also wondered whether, in the wake of the adoption of this bylaw, he would be eligible for an invitation from these student groups given that he is both a critic and a supporter of Israel. It may be the case that some Zionists meaningfully affirm Palestinian equality. If the objection, however, is that the bylaw is ambiguous and therefore overbroad, the proportional response is to ask the students to clarify what they mean by anti-Zionism, and to clarify how they intend to operationalize it, not to threaten students with sanctions. It should be obvious that refusing to invite a speaker who justifies the ethnic cleansing of Palestinians, confiscation of Palestinian land to build Jewish-only settlements, and family-unification laws that exclude Palestinians is hardly evidence of an inability to exercise the impartiality required in a judicial clerk, contrary to Lubet’s claims, or inconsistent with the spirit of free inquiry that Chemerinsky seeks to sustain at Berkeley Law.
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.