This fall, nine student groups at Berkeley Law school – including 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 – amended bylaws to prohibit Zionists or anyone who supports Israel from speaking at events on campus. Several of these groups were also instrumental in passing a pro-BDS bylaw on August 21.
On August 26, Erwin Chemerinsky, the Dean at Berkeley Law, told The Jewish News of Northern California that if this bylaw is 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.” He also noted that “to say that anyone who supports the existence of Israel – that’s what you define as Zionism – shouldn’t speak would exclude about, I don’t know, 90 percent or more of our Jewish students.”
This new rule is eerily reminiscent of the 1930s when signs were hung on store windows in cities like San Francisco that prohibited Jews from entering. Rabbi Abraham Cooper, associate dean and director of global social action at the Simon Wiesenthal Center, stated, “No Jews, no dogs, now no Zionists. Leave it to wannabe lawyers in Berkeley to legalize discrimination, censorship and hate.”
Kenneth L. Marcus, founder and chairman of The Louis D. Brandeis Center for Human Rights Under Law, former Assistant U.S. Secretary of Education for Civil Rights and a graduate of Berkeley Law, wrote a widely publicized op-ed piece about this issue, which was published in the Jewish Journal on September 28. He remarked, “The students should be ashamed of themselves. As should grownups who stand quietly by or mutter meekly about free speech as university spaces go as the Nazis’ infamous call, judenfrei. Jewish-free.”
Marcus spoke with The Jewish Press by telephone on Friday about on-campus antisemitism and the ominous potential repercussions of having exclusionary bylaws at a law school.
At the time when you graduated from Berkeley Law in 1991, what was the climate there like with regard to antisemitism?
While there was some hostility towards Israel and to Jewish Americans at the political extremes, I certainly didn’t sense it as being as pervasive as what we’ve seen.
When did you first see an uptick in antisemitism on college campuses? What types of reports of antisemitism there were you first made aware of?
I had actually first sensed the uptick . . . at the onset of the Second Intifada, late 2001, early 2002. I saw initial reports of incidents in California and on the East Coast that were different in kind than what I had seen before . . . At San Francisco State University, then at Columbia University and at the University of California at Irvine, I saw reports of systemic antisemitism of a deeply hateful manner that combined political opposition to the State of Israel with ancient stereotypes of Jewish identity.
Would you say there was a correlation between the BDS (Boycott, Divestment and Sanctions) movement gaining traction and increasing antisemitism at this time?
Yes, I would say that the BDS movement is a set of tactics that operationalized the new antisemitism as it was growing in virulence starting around 2001, 2002.
What kind of work did you do to combat antisemitism when you were Assistant Secretary of Education in the George W. Bush and Trump administrations?
The big development during the Trump years was the very important executive order on combating antisemitism. That executive order codified work that I had done during the George W. Bush administration to establish that Jewish students receive protections under Title VI of the Civil Rights Act of 1964, as well as some of the work that I had done earlier in the Trump administration to adopt the so called IHRA (International Holocaust Remembrance Alliance) working definition of antisemitism . . . When I left government, I could see that there was a need within the Jewish community to fight back against antisemitism using not only education and research but also law and public policy.
Could you tell us about how The Brandeis Center, which you founded in 2011, supports victims of antisemitism on college campuses?
We are a legal organization, providing free legal support for Jewish students, professors and staff members who are facing antisemitic discrimination on college campuses. And we have also begun work in other areas. For example, we have fought BDS in the international arena, through our lawsuit against Ben and Jerry’s.
Are you noticing any trends in the cases you are currently representing?
There is now a much more in-your-face targeted antisemitism that is directed at individual Jews and Jewish organizations. It’s not a matter of speech. It’s a matter of conduct. At USC, it involved trying to impeach a Jewish student, a government vice president, based on her feeling of connection to Israel. This was similar to an effort to impeach a pro-Israel Jewish student from a student government position at Tufts.
At (SUNY) New Paltz and (the University of) Vermont, we’re seeing some of the most vulnerable students being excluded, such as (Zionist) students who are survivors of sexual violence and who are being told, essentially, that there is no space for them within survivor groups.
In your Jewish Journal op-ed, you wrote about how student groups at Berkeley Law banning Zionists from being hired for speaking engagements is discrimination. Are there any other groups who have experienced being banned like this before?
African Americans were banned from many parts of American higher education until the Heman Sweatt case, Brown v. Board of Education and the Civil Rights Act of 1964…. I don’t think that one could ignore the parallels with the awful history of racial and ethnic segregation in the United States that has affected African Americans, as well as Asians and other groups in various parts of the country. This is an evil part of our history that I never thought that we would revisit. I don’t want to suggest that what is happening to Jewish students at Berkeley Law is comparable to racial segregation in American public schools. And yet, it has a resonance historically that is disquieting.
In Dean Chemerinsky’s response to your op-ed, he stated that “only a handful of student groups out of over 100 at Berkeley did this.” Would you like to comment on that?
It is outrageous to suggest that it is okay for nine student organizations to ban Zionist speakers as long as other groups don’t ban them. Can you imagine a mayor saying that we shouldn’t worry if nine neighborhoods prohibit black people from owning houses? Because after all, there are so many other neighborhoods where blacks are permitted to live. Nobody would say that… What Dean Chemerinsky doesn’t seem to understand is that Zionism is more than just a set of political ideas. It is also an integral aspect of the identity of many Jewish Americans…This is not a free speech issue. This is a classic civil rights issue.
In your op-ed, you mentioned that these exclusionary bylaws “operate like racially restrictive covenants, precluding minority participation into perpetuity.” Can you explain how this will prevent the next students that come in from being able to hire pro-Israel speakers? Can these bylaws ever be changed?
Bylaws can always be changed…but this was an effort to do more than just affect one particular semester or one particular year; its effect would bar the Jewish community from speaking to these groups into the distant future.
Is banning a certain group of people from speaking at school events unlawful?
There can be no lawful basis for a public institution to exclude anyone on the basis of race or ethnicity from any of the opportunities that the institution affords. So this is an issue that is not only one of basic morality but also of law.
Have you seen the exclusion of specifically Jews from campus events before?
This has been a building movement. There have been several efforts over the last few years to treat Jewish organizations and individuals as being outside of the norm. That included the exclusion of Hillel and other Jewish organizations from the Know Your Rights fair at San Francisco State University just a few years ago; it also includes incidents in places like New York University. But this is building and getting worse, and we’re now seeing it to a greater extent at law schools than we’ve seen in the past.
What is the unique significance or implication of this happening at a law school?
Several years ago, the Brandeis Center established fellowships and chapters at law schools based on the notion that law schools are uniquely influential for the history of the country. Law schools train future lawyers, government officials, judges and other people who make important decisions for the country. And yet the Jewish community has not invested nearly so much in addressing legal education as it has with respect to undergraduate institutions.
The Brandeis Center has had events and activities at law schools, but what we find is that when we are on the undergraduate campus, we see many other friendly Jewish organizations. On the Law School campus, [by] contrast, the major organizations that are active in our space tend to be anti-Israel extremist groups. They have gotten much more traction. We cannot be in a situation where we have great progress on the undergraduate campus but lose the law schools. If we lose the law schools, we will eventually lose the legislatures we will lose the courts, and we will lose the opportunity to defend ourselves legally. We simply cannot allow that to happen.
