The Volokh Conspiracy
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Should Universities Treat Discrimination against Zionists as Discrimination against Jews?
One response David L. Bernstein and I have received to our article on campus antisemitism and free speech is that we conflate antizionism with antisemitism. I think that is a misreading of our article; we discuss where University should do with regard to complaints about antisemitism without adjudicating whether the complaints are valid. We think that speech should be protected regardless of whether it is antisemitic, and disruptive, violent, harassing, and other illicit forms of protest should be punished regardless of whether it is antisemitic. So in most of the controversies that have arisen, the question of whether the speech or conduct is "really" antisemitic is not terribly relevant to our thesis.
However, the issue does arise when a student or professor is accused of illegal discrimination against Zionists. "Zionist" is an ideological position, and while university rules may prohibit ideological discrimination, and in some cases ideological discrimination at state universities may violate the First Amendment, Title VI does not prohibit discrimination against Zionists, as such.
Title VI does prohibit discrimination against Jews, and the question then arises as to whether discrimination that is claimed to be discrimination against Zionists can or should be deemed to be discrimination against Jews.
"Zionist" can sometimes serve as a proxy for "Jew." For example, when someone talks about the "Zionist-controlled media," or refers to Jewish students on campus as "Zios," or speaks of "Zionists" exaggerating the Holocaust, invoking classic antisemitism, the fact that they substitute "Zionists" for Jews does not make the statements any less antisemitic. A student who tells his friend, "I feel like punching a Zionist today" and then punches the first student he sees wearing a kippah can't get around a charge of antisemitic violence because he used the word Zionist instead of Jew.
A more complicated issue is whether Zionism is so closely connected to perceptions of Jewishness that for the purposes of antidiscrimination law discrimination against Zionists should be deemed to be discrimination against Jews.
If it were a matter of first impression, I would be inclined to say no. Banning discrimination against Jews does not ban discrimination against things that are associated with Jews.
That is not, however, how courts have treated the issue of sexual orientation discrimination. Several state courts and agencies have been confronted with the question of whether discriminating against people seeking services for same-sex weddings amounts to discrimination based on sexual orientation. To my knowledge, every court or agency that has addressed the issue has found that it does.
In other words, imagine the father of one of the two brides in an upcoming same-sex wedding tries to hire a photographer for the wedding. The father is not gay, and the photographer does not have a policy of discriminating against gay customers, and indeed did a photoshoot for the daughter a few months earlier, knowing that she was gay.
Even though the customer is not gay, and even though the photographer only objects to working on same-sex weddings for ideological reasons, courts and agencies have held that the photographer is guilty of discrimination based on sexual orientation. To the extent they have discussed the issue, the relevant judges have explained that same-sex marriage is so closely tied to gay identity that discriminating against those associated with same-sex marriage is sexual orientation discrimination. And that is true even though not all gay people desire marriage, and some are ideologically opposed to it.
Analogously, imagine a student group on campus that has a "no Zionist" policy. The group claims not to discriminate against Jews, and even has a few anti-Zionist Jewish members. Given the apparent consensus regarding same-sex marriage, it would seem that discrimination against Zionists amounts to discrimination against Jews because Zionism is so closely associated with Jews. And that would be true even though some Jews are ideologically opposed to Israel, and even though the group is admits other could prove that it admits other Jews.
It also seems inevitable that a student group that bans Zionists will discriminate against Jews in being much more likely to ask potential Jewish members if they are Zionists than to ask others. Students at encampments such as UCLA's not surprisingly singled out visible Jews, such as Jews wearing yarmulkes, to grill about their views regarding Israel before allowing them to traverse campus.
Imagine a campus group that says that they don't discriminate against gays, but only against those who favor same-sex marriage. Or a campus group in the south of the early 1970s that announced that it does not discriminate against black members, but does ban those who favor racial integration. Campus officials would have good reason to suspect that these policies would result in discrimination against gay or or black students, respectively.
So while it may seem a simple matter to separate discrimination based on ethnicity (being Jewish) from discrimination based on an ideological position ("Zionist") that the overwhelmingly majority of the group hold and that is closely associated with that group, in practice it's not nearly so clear-cut.
