The Volokh Conspiracy

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Berkeley Law's "Jew-Free Zone" Controversy


In August, nine student groups at Berkeley law school signed a statement sponsored group Berkeley Law Students for Justice in Palestine pledging not to invite "speakers that have expressed and continued to hold views … in support of Zionism, the apartheid state of Israel, and the occupation of Palestine."

Two things need to be clarified. First, by "support" for "the occupation of Palestine" SJP means "supports the existence of Israel." So any speaker who thinks Israel should exist is forbidden. Second, the pledge is to not invite any speaker on any subject who comes within the scope of the ban. So, for example, if the "Women of Berkeley Law" group wanted to invite a speaker from NARAL to speak about post-Dobbs abortion rights activism, the group would decline to do so if the speaker has ever publicly stated that she's not in favor of Israel being destroyed (the flip side of Israel existing).

In practice, given that the only way Israel will cease to exist in the foreseeable future is via military defeat that would result in the deaths, expulsion, and other horrors inflicted on the 7.5 million Jews in Israel, that nine Berkeley groups have pledged to invited only speakers who favor genocide against these Jews. (Yes, in theory a peaceful transition from Israel to "Palestine" could occur, but let's acknowledge that this is highly unlikely. And let me add that I have yet to encounter any Israel-abolitionist who will say publicly that if the price of creating Palestine is mass oppression of Israel's Jewish population, that this would be too high a price. The late Edward Said, the leading American Israel-abolitionist of his day, for one acknowledged the potential price as unfortunate but one he was willing to countenance.).

Dean Erwin Chemerinsky publicly criticized the pledge, noting that "taken literally, this would mean that I could not be invited to speak because I support the existence of Israel, though I condemn many of its policies."

There things stood until attorney Ken Marcus, former chair of the Department of Education's Office of Civil Rights (and a friend and Distinguished Senior Fellow at my law school's Liberty and Law Center, where I am executive director), wrote an op-ed on the matter, published with the title, "Berkeley Develops Jew Free Zones." Marcus argued that given that the overwhelming majority of Jews support the existence of Israel, and are likely to have said so at some point, the relevant policy would exclude the vast majority of Jews from speaking to the relevant student groups. I would add that such "anti-Zionist" speaker policies are almost always selectively enforced against Jews; it's unlikely that a Brittany Smith would be queried about her views on Israel before being invited to speak, while an Aviva Rosenberg would be much more likely to face such scrutiny.

Marcus' op-ed set off a furor. Dean Chemerinsky responded that Marcus "does not mention is that only a handful of student groups out of over 100 at Berkeley Law did this." I think Erwin is being too cute here. The nine groups in question are all active groups, whereas I doubt there are really 100 active student groups at Berkeley Law, or even close. More important, the nine are affinity groups that at least purport to represent the vast majority of students at the law school: Muslim students, Queer students, Women students, Women of color students, and Asian Pacific students, to name the largest groups.

Chemerinsky also penned an op-ed in which he wrote that "widespread media attention to recent events at Berkeley Law are stunningly misleading and inaccurate." "There is no 'Jewish-Free Zone' at Berkeley Law or on the Berkeley campus."

I'm afraid that Chemerinsky's op-ed, however, is itself misleading and inaccurate. He writes, "At this stage, all some student groups have done is express their strong disagreement with Israel's policies." There is, in fact, no criticism of Israel's policies in the SJP boycott statement. Rather, as noted previously, there is a pledge to disinvite any speaker who thinks Israel should exist, regardless of its policies. And until each of the student groups in question publicly repudiates their pledge not to invite speakers who don't oppose Israel's existence, the media attention has neither been misleading nor inaccurate.

Chemerinsky also notes that the issue has received very little attention on campus. (I spoke to a small audience there last month, and I condemned the organizations in question as antisemitic, and I should have added pro-genocide). But that's exactly the problem. Naked, genocidal hostility to Israel's very existence, resulting in a boycott of predominately Jewish speakers, is met with indifference.

Two professors at the law school responded to the furor by noting that there is an active Israel-related program at the law school, and adding that "panic-mongering around anti-Zionism on U.S. campuses serves no purpose, other than to offer free advertisement for extremist ideas, and to erode needlessly Jews' sense of basic safety and security in places where Jewish life is actually thriving." But the professors also condemned SJP's campaign as "nakedly discriminatory," "bigoted" and "an outrage."

While I agree with these professors that the pro-genocide boycott is not worthy of "panic," surely outrageous, nakedly discriminatory, bigoted action by some large and influential student groups at one of the nation's top-ranked law schools is at least cause for alarm?

UPDATE: My post has been met with the insistence that support for "Zionism" and "occupation of Palestine" does not necessarily mean "Israel's existence." To the extent there was any ambiguity on this issue (and if you understand SJP's politics, we know its intent), it was cleared up when Dean Chemerinsky wrote to the entire law school school student body that because he supports Israel's existence, the rule would apply to him. Neither SJP nor any of the signators responded, "oh, no, we only meant people who support Israel's occupation of the West Bank, or right-wing Zionists."

The reaction of commenters seems part of a pattern in which Western liberals are unable to take the genocidal demands of Palestinian nationalists seriously, even when they are stated explicitly. Hamas, for example, explicitly seeks to replace Israel with "Palestine" and expel all Jews whose ancestors weren't in "Palestine" by 1898. Those remaining would live as second-class citizens in an Islamic state. Nevertheless, when Hamas and Israel are fighting, I consistently see reporters stating that "Hamas objects to Israel's occupation of the West Bank and its blockade of Gaza," as if Hamas's real objection wasn't to Israel's very existence.

Are Hamas's demands both unreasonable and genocidal? Yes. Is that a good reason to not take them seriously? Well, Jews have had some experience with unreasonable, genocidal hostility, and we don't have the luxury of not taking it seriously.