The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Chemerinsky and Marcus Go Another Round Re Antisemitism at Berkeley Law
Re the controversy over nine student groups banning speakers who think Israel should exist.
The Jewish Law Students Association can refuse to invite Holocaust deniers. The Black Law Students Association can refuse to invite white supremacists. I may not like the choices they make about what viewpoints they invite or not invite, but that is their First Amendment right.
What is not allowed is excluding a speaker based on religion or race or sex or sexual orientation. And that has not – and I am confident will not happen at Berkeley Law. To be clear, the law, and campus policies, distinguish between word and deed, expression and action. To date the offending student groups have issued statements, declarations, and intentions. Those are constitutionally protected forms of expression. To date, no student has been excluded, cancelled, disinvited, or interrupted. To date no student has been denied the right or the ability to express themselves, to exercise their freedom of speech. Should that happen—and we are working hard to make sure it does not—that would represent a cross-over from expression to conduct and that would be subject to serious discipline.
Marcus:
if he had reached out, Dean Chemerinsky would stop denying that "no speaker has been excluded on account of these or any other views." With due respect to the good dean, this is absurd. Mr. Chemerinsky and his Berkeley Law colleagues now acknowledge that these nine groups' bylaws "impermissibly exclude a large majority of [Berkeley's Law] faculty from participating in the work of these organizations, including [him]." Since he acknowledges that this is impermissible, he should stop permitting it. More to the point, he should stop funding it.
In addition, we all know what happens when campus groups announce "no Zionists"– Jewish students either stop participating or they suppress that part of their Jewish identity to be accepted. Dean Chemerinsky suggests he will act once a Jewish speaker is turned away or a Jewish student is formally excluded. Once the bylaws were formalized that ship sailed. By not acting now, the damage is done.
And if student groups take further discriminatory action by excluding Zionists in the future, there will be no way for Chemerinsky to know that they have done so. It is not as if they will tell the dean that they are doing what he has described as "impermissible."
Comment: Parsed closely, Chemerinsky is arguing that the students have a First Amendment right to ban "Zionist" speakers, but no such right to ban or discriminate against "Zionist" students. I'm not sure that's right for reasons I expressed in a previous post, but let's assume it is. In practice, there would be only one way for a student group to ban "Zionist" speakers (i.e., speakers who believe that Israel should continue to exist), and not in practice discriminate against Jewish speakers--given that, in practice, campus groups' hostility to "Zionists" has fallen entirely on Jews. That would be to ask all speakers, Jewish or not, to sign a pledge that that don't think Israel should exist. Would *that* be ok? Would the campus groups be willing to require such a pledge, including for law firm recruiters who would like to speak with them?
Indeed, I think this should, perhaps must, be the compromise. If the law school determines that it's legal and within school policy for clubs to ban speakers who believe Israel should exist, that policy needs to be transparent, and enforced uniformly. No Dean Chemerinsky or other faculty who support Israel's existence at club events. No law school recruiters who support Israel's existence. No speakers on abortion rights, trans rights, or anything else within the clubs' purview unless they avow that they support Israel's destruction. These groups have made the policy, make them live with it in a way that won't be selectively enforced against Jewish speakers.
As an aside, Dean Chemersinsky is incorrect that expressing discriminatory "intentions" is protected by the First Amendment. It's illegal for an employer to announce that he won't hire a protected group, for a landlord to announce that he won't rent to a protected group, and so on, regardless of whether they follow through if they get applicants from those groups.
