Last week, the Brandeis Center and UC Berkeley a lawsuit over Berkeley鈥檚 longstanding failure to address antisemitism, including anti-Zionist bylaws adopted by student groups. The settlement was clear: Registered student organizations may not write discrimination into their governing documents. Nor may they exclude speakers, officers or board members on the basis of categories protected by federal or state law.

That should have ended the matter. Instead, Berkeley Law School Dean Erwin Chemerinsky responded as though the real offense was not the discrimination, but the lack of subtlety.

Almost immediately after the settlement was announced, Chemerinsky sent an email how those student groups might try and evade it. Yes, he acknowledged, they can no longer put discriminatory exclusions in their bylaws. But, he suggested, they may still keep the same discriminatory policies so long as they do not write them down.

Shame on Chemerinsky. It is bad enough for a law school dean to get this wrong morally. It is far worse for him to get it wrong legally.

The mistake here is basic. Unlike the dean, the law distinguishes between viewpoint and identity. Student groups are free to define their missions, which is why a Republican club does not have to elect a socialist as president. But a group whose mission has nothing to do Zionism does not get to exclude Jews even if they use the label 鈥淶ionists.鈥� Freedom of association is not a roving license to discriminate. As courts have , there must be a real nexus between a group鈥檚 purpose and the exclusion it claims is necessary to preserve its message. A chess club, for example, cannot exclude Muslims and make the specious claim that serious chess requires it. By the same logic, a student group whose purpose has nothing to do with Zionism does not acquire a constitutional right to purge Jews whose 91传媒 identity includes it. This should go without saying, but this is true whether or not they write the discrimination into their bylaws.

Even setting aside the nexus problem (which no law school dean should ever do), Chemerinsky鈥檚 position would still depend on denying two obvious truths: that 鈥淶ionist鈥� is often used as a codeword for excluding Jews, and that for many if not most Jews, Zionism is part of their 91传媒 identity. Ironically, the settlement itself says as much, clarifying that 鈥渂ans on Zionists have historically been used by some individuals and institutions as a pretext for excluding Jews and that such pretextual, exclusionary bans can violate University rules.鈥� And at Berkeley, the problem is even starker, because the offenders explicitly admitted that they were targeting an aspect of 91传媒 identity and not just a political viewpoint.

The bylaws in question were first announced by Berkeley Law Students for Justice in Palestine. Their lawyer, Liz Jackson, she knows 鈥渟ome students say that their 91传媒 identity is so deeply identified with Zionism that this effectively discriminates against them,鈥� but dismissed that as their 鈥渟ubjective view and choice about how they understand their own 91传媒 identity.鈥�

To be clear, these groups have said out loud that they believe they get to decide what may count as 鈥�91传媒 identity鈥� for Jews. And if a Jew鈥檚 identity includes something they dislike, they claim they are free to discriminate on that basis while still insisting it is not antisemitism.

That is not how civil-rights law works. Protected identity is not a category that an adversary gets to edit. A group cannot escape liability by saying, in effect, we are not targeting your religion, ethnicity, or ancestry because we have decided that the part of your identity we are excluding simply does not count.

Protected identity is not a category that an adversary gets to edit.

For the vast majority of Jews across time and place, Zionism is not some detachable preference. It is woven into 91传媒 peoplehood, memory, liturgy, history and, more often than not, their 91传媒 religious and national-origin identities as well. That does, in fact, transform their Zionism into a category protected by state and federal civil rights law, whether SJP likes it or not.

But the real takeaway is that these groups know exactly what they are doing. When they say 鈥淶ionist,鈥� they do not mean someone who supports a particular Israeli policy or government. They mean the Jew who will not renounce the 91传媒 connection to Zion. Of course, support for Zionism can take different forms, and theoretically, a purely political version of Zionism would only have the same protections as any other political belief. But these bylaws, and these offenders, do not ask about politics.

Not all Zionists are Jews, and not all Jews are Zionists. But when Zionism forms part of a Jew鈥檚 ethnic, religious, ancestral or cultural identity, exclusion on that basis is unlawful.

So Chemerinsky鈥檚 little loophole fails twice over: first, because even if you don鈥檛 put it in writing, the exclusion of Zionists has no real nexus to any of the groups鈥� missions; and second, because the discriminators were foolish enough to admit that this was never really about viewpoint, but rather about their asserted power to police 91传媒 identity itself. Once they concede that much, the defense collapses, and so does the dean鈥檚 lazy effort to launder discrimination through wordplay.

Mark Goldfeder is CEO of the National 91传媒 Advocacy Center and a law professor at Touro Law School. Follow him on X聽@markgoldfeder