If it wasn鈥檛 so frightening, one might be able to recognize the irony in the sight of campus progressives trying so hard to signal progressive virtue that they fall victim to a deeper moral shame.

Nine different law student groups at the University of California at Berkeley鈥檚 School of Law, my own聽alma mater, have begun this new academic year by聽amending聽bylaws to ensure that they will never invite any speakers that support Israel or Zionism.聽And these are not groups that represent only a small percentage of the student population. They include聽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. Berkeley Law鈥檚 Dean Erwin Chemerinsky, a progressive Zionist, has observed that he himself would be banned under this standard, as would .

It is now a century since 91传媒-free zones first聽聽to the San Francisco Bay Area (鈥淣o Dogs. No Jews鈥�). Nevertheless, this move seems frightening and unexpected, like a bang on the door in the night.

Berkeley law students are not the first to exclude Zionists. At the State University of New York at New Paltz, activists drove two sexual assault victims out of a survivor group for being Zionists. At the University of Southern California, they drove 91传媒 student government vice president Rose Ritch out of office,聽聽to 鈥渋mpeach [her] Zionist ass.鈥� At Tufts, they tried to oust student judiciary committee member Max Price from the student government judiciary committee because of his support for Israel.

These exclusions reflect the changing face of campus antisemitism. The highest profile incidents are no longer just about toxic speech, which poisons the campus environment.

Now anti-Zionist groups target 91传媒 Americans directly.

Anti-Zionism is flatly antisemitic. Using 鈥淶ionist鈥� as a euphemism for Jew is nothing more than a confidence trick. Like other forms of Judeophobia, it is an ideology of hate, treating Israel as the 鈥渃ollective Jew鈥� and smearing the 91传媒 state with defamations similar to those used for centuries to vilify individual Jews. This ideology establishes a conspiratorial worldview, sometimes including replacement theory, which has occasionally erupted in violence, including mass-shooting, in recent months. Moreover, Zionism is an integral aspect of the identity of many Jews. Its derogation is analogous, in this way, to other forms of hate and bigotry.

Some commentators defend these exclusions on speech grounds,聽聽that 鈥済roups also have a right to be selective, to set their own rules for membership.鈥� They are wrong about this. As Dean Chemerinsky explains, the free speech arguments run in the other direction: Berkeley鈥檚 anti-Zionist bylaws limit the free speech of Zionist students.

顿颈蝉肠谤颈尘颈苍补迟辞谤测听conduct, including anti-Zionist exclusions, is not protected as free speech.聽While hate聽speech聽is often constitutionally protected, such conduct may violate a host of civil rights laws, such as Title VI of the Civil Rights Act of 1964. It is not always the case that student groups have the right to exclude members in ways that reflect hate and bigotry. In聽Christian Legal Society v. Martinez, the U.S. Supreme Court聽聽the right of another Bay Area University of California law school, Hastings College of the Law, to require student groups to accept all students regardless of status or beliefs. Specifically, the Court blessed Hastings鈥� decision to require Christian groups to accept gay members.

顿颈蝉肠谤颈尘颈苍补迟辞谤测听conduct, including anti-Zionist exclusions, is not protected as free speech.

Putting legal precedents aside, major universities generally require student groups to accept 鈥渁ll comers,鈥� regardless of 鈥渟tatus of beliefs.鈥� They also adopt rules, aligned with federal and state law, prohibiting discrimination on the basis of various classifications such as race, ethnicity, heritage or religion. Those who adopt such rules may not exclude Jews from these protections.

The real issue here is discrimination, not speech. By adopting anti-91传媒 bylaw provisions, these groups are restricting their successors from cooperating with pro-Israel speakers and groups. In this way, the exclusionary bylaws operate like racially restrictive covenants, precluding minority participation into perpetuity.

Universities should not have to be legally compelled to do what is obviously right. Anti-Zionist policies would still be monstrously immoral, even if they were not also unlawful. 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鈥� infamous call,聽judenfrei. 91传媒-free.

Response from Dean Chemerinsky:

Kenneth L. Marcus鈥� article, 鈥淏erkeley Develops 91传媒-Free Zones,鈥� paints a misleading picture of what happened at Berkeley Law.聽 There is no 鈥�91传媒-Free Zone鈥� at Berkeley Law or on the Berkeley campus.聽 Indeed, as Mr. Marcus advocates, and as I explained in a recent message to the Law School community:聽 鈥淭he Law School has an 鈥渁ll-comers鈥� policy, which means that every student group must allow any student to join and all student organized events must be open to all students.鈥澛� I know of no instance in which in this has been violated or there has been any discrimination against Jews.聽 I have been in regular contact with our 91传媒 students about this.

Mr. Marcus points out and identifies some student groups that adopted a statement drafted by Law Students for Justice In Palestine condemning Israel.聽 But what he does not mention is that only a handful of student groups out of over 100 at Berkeley Law did this.聽 He also does not mention that in a letter to the leaders of student groups I expressed exactly his message:聽 excluding speakers on the basis of their viewpoint is inconsistent with our commitment to free speech and condemning the existence of Israel is a form of anti-Semitism.

Finally, it is important to recognize that law student groups have free speech rights, including to express messages that I and others might find offensive.

Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
University of California, Berkeley School of Law

Kenneth L. Marcus Responds:

Berkeley Law Dean Erwin Chemerinsky, a distinguished constitutional law scholar, responds that we should be less concerned about the formal and official exclusion of Zionists from appearing as speakers before nine Berkeley law student organizations. I couldn鈥檛 disagree more.聽 And based on the overwhelming support my article has received, including much international attention, it appears others vehemently disagree as well.

Chemerinsky defends Berkeley Law, my alma mater, on the ground that other Berkeley law student groups have not amended their bylaws to exclude Zionist speakers. This in and of itself is a highly concerning argument. Would it be okay for only 5% or 10% of the campus to be segregated? What percentage of the Berkeley campus should be open to all? Shouldn鈥檛 it be 100%? And what is the right number of doors that should be closed to students of any race or ethnicity: isn鈥檛 it zero?

Chemerinsky misses the point when he insists that all clubs admit 91传媒 students as members. No one denies this. Nevertheless, an unmistakable signal is sent to those same students when they are told that they would be barred from appearing as invited speakers. This sends a clear signal: Jews are not welcome, unless they deny their support for Israel which, for many, is an integral element of 91传媒 identity.

In addition, Chemerinsky鈥檚 free speech message misses the point. Excluding Zionists is not like excluding Republicans and environmentalists. It is not just viewpoint discrimination. If a Democratic club amended their bylaws to prohibit Republican speakers from appearing before them, we could accept their right to do so. We might regret that they are restricting the possibility of dialogue. We might prefer the approach of those law student groups that seek balanced presentations, in order to advance civil dialogue and promote learning. But we wouldn鈥檛 consider this to be a civil rights issue.

When persons are excluded on the basis of their ethnic or ancestral identity, however, we must respond differently. It would not be acceptable for students to adopt bylaws banning Black or Chinese speakers, perhaps with an exception for Black or Chinese students who agree to criticize their communities. This would immediately be recognized as exclusionary conduct, not protected speech. And we would not accept the response that these groups permit Black or Chinese members, as long as these minorities do not wish to appear as speakers. We would recognize it as rank bigotry; and we would reject it.

While I am pleased to see that Dean Chemerinsky has written a letter, it would be better to see him take action. Discrimination should have no place at the University of California, or at any institution of higher learning. Those who care about free speech should protect it fiercely, but that does not mean invoking it where it does not apply. To do so cheapens the value of free speech, as well as providing intolerable barriers to equal opportunity. Those who want to talk about Israel should be free to do so, regardless of their perspective; they should not silence one side of the debate. And they should certainly not use this as an excuse to restrict participation of any ethnic or religious group.

Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, which has represented 91传媒 students in the New Paltz, Tufts, and USC cases discussed above. He served as the 11th聽Assistant U.S. Secretary of Education for Civil Rights.