A Free-Speech Scandal at Berkeley Law – The Chronicle of Higher Education

The University of Californias Berkeley campus has been a hotbed of leftist politics since at least the early 1960s, so it is unsurprising that students at its prestigious law school have long embraced the cause of Palestinian rights. It was shocking, however, when the latest expression of anti-Israel sentiment veered into territory so extreme that even the law schools progressive dean, Erwin Chemerinsky, observed that it could be seen as antisemitic. Although the students had not in any sense established Jewish-free zones, as some overheated commentaries called them, what they did was bad enough. Nine law-school affinity organizations, nominally representing a majority of the student body, adopted a bylaw providing that they will not lend platforms to speakers who have professed or continue to hold Zionist views.

Yes, you read that correctly. The bylaw does not simply prohibit pro-Israel presentations at the organizations events. It bans speakers on any topic who happen to support the existence of Israel a category that encompasses more than 80 percent of the worlds Jews, and includes many Berkeley Law students and faculty. As Chemerinsky remarked in an email to students, Indeed, 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. For the same reason, I would also be unable to speak to the student groups about my research on 19th-century abolitionist lawyers, notwithstanding my decades of support for the anti-occupation movement within Israel. (Disclosure: I am a 1973 alumnus of Berkeley Law.)

The bylaw was part of a package of policies promoted by Law Students for Justice in Palestine, in conjunction with the Boycott, Divestment, and Sanctions (BDS) campaign against Israel. It goes far beyond other academic boycotts, which claim to be aimed only at Israeli organizations, because it bars individual speakers on the basis of their beliefs, no matter how unrelated to the subject matter at hand. The American Studies Association, for example, has explained that its BDS resolution does not apply to individual scholars, students, or cultural workers who will still be able to participate in the ASA conference or give public lectures at campuses, so long as they are not expressly representing the Israeli government or universities.

The sweeping prohibition enacted by the Muslim Student Association, Queer Caucus at Berkeley, Women of Berkeley Law, Asian Pacific American Law Students Association, Law Students of African Descent, and others violates the basic values of free speech and open inquiry, which lie at the heart of law practice and legal education. Thus, a group of Berkeley Law faculty recently issued a public statement condemning the discriminatory bylaw for refusing to accept speakers who have Zionist views or beliefs. The bylaw, they add, is not only wrong but is antithetical to free speech and our community values. By prohibiting speakers who support the existence of Israel, the bylaw would also impermissibly exclude a large majority of our faculty from participating in the work of these organizations.

Law Students for Justice in Palestine defended the prohibition. The group argues that free speech and the exchange of ideas cannot be romanticized when the byproduct of such rhetoric causes harm to marginalized communities, evidently meaning that the background beliefs of a pro-Israel speaker, even if unexpressed, will cause unspecified harm to Palestinians.

The discriminatory consequences of that position, not to mention its sheer ridiculousness, have led to calls for sanctions against the adopting organizations and accountability for the law school, on the ground that discriminatory conduct, including anti-Zionist exclusions, is not protected as free speech and may thus be prohibited under Title VI of the Civil Rights Act of 1964.

That is not so. Writing in The Daily Beast, Dean Chemerinsky explained that the offending student groups have exercised their own First Amendment rights to freedom of speech and association. I find their statement offensive, he said, but they have the right to say it. To punish these student groups, or students, for their speech would clearly violate the Constitution. Eugene Volokh, the prominent free-speech scholar at the University of California at Los Angeles, expanded on Chemerinskys position, noting that private groups have the First Amendment right to choose whom to invite as speakers based on the speakers views, even views unrelated to the particular event. Although it might be theoretically possible, Volokh continued, for a university to craft a rule barring student groups from discriminating based on a speakers viewpoint thats unrelated to the topic the speaker is discussing, it would be virtually impossible to carry out in practice.

I agree with Chemerinsky and Volokh that the nine student organizations have the right to exclude speakers on the basis of perceived political support for Israel, but that is not the end of the discussion. First Amendment principles protect the groups and their leaders from discipline by the university, but that does not mean they are free from other consequences. At a minimum, university faculty of all persuasions should refuse to speak at events sponsored by the nine organizations, so long as their restrictive bylaw remains in effect.

Law students will soon be lawyers, and most will be seeking employment with law firms, government agencies, nonprofit organizations, and state or federal judges. In most instances, students political views, no matter how questionable or offensive, should be irrelevant to their future employment, but there is one exception.

Federal judges at every level from the trial courts to the Supreme Court typically hire as many as four recent law-school graduates as clerks, as do California appellate and Supreme Court justices. Serving for a year or two, judicial clerks support their judges by reviewing case records, summarizing documents, conducting research, making recommendations, and sometimes (depending on the judge) even drafting opinions. Judicial clerkships are among the most prestigious jobs a law-school graduate can get, opening many doors for future positions; the higher the court the better.

Crucially, effective clerks are expected to have many of the qualities necessary to good judging: open-mindedness, willingness to entertain unpopular or contrary viewpoints, the ability to set aside preconceptions, and respect for the free expression of others. That being so, how could a judge or justice ever rely on the assessments or judgment of someone who has been unwilling to simply listen to those with whom they disagree on political issues?

The Berkeley students who have promoted or embraced the no Zionist speakers rule have demonstrated utter disregard for the core values essential in a judicial clerk. Their inability to tolerate the mere presence of a speaker who holds uncomfortable beliefs should be disqualifying for a clerkship. The great majority of Berkeley students bear no responsibility for the malicious bylaw, and it would be deeply wrong for a judge to boycott the entire school, as some have foolishly announced they will do in somewhat analogous circumstances at Yale Law School.

But thoughtful judges might well refuse to hire the student leaders who foisted such a discriminatory policy on one of the nations premier law schools. Although the banned speakers would cause no actual harm to marginalized communities, intolerant clerks could indeed work great damage in judicial chambers.

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A Free-Speech Scandal at Berkeley Law - The Chronicle of Higher Education