Students walk past a building at the UC Berkeley's law school, Jan. 30, 2020. (Photo/JTA-Jane Tyska-Digital First Media-East Bay Times via Getty Images)
Students walk past a building at the UC Berkeley's law school, Jan. 30, 2020. (Photo/JTA-Jane Tyska-Digital First Media-East Bay Times via Getty Images)

Accountability required from Berkeley Law — before the water begins to boil

Berkeley Law professors Ron Hassner and Ethan Katz are less disturbed by what they call the “nakedly discriminatory” activities at their law school than by my article, which has put a national spotlight on their school. In their Oct. 3 op-ed in J., Hassner and Katz concede that the actions of nine Berkeley Law student groups, which have amended their bylaws to ban Zionist speakers, are “bound to make Jewish students feel excluded.” Nevertheless, they worry that I will “erode needlessly” the Jewish community’s “sense of basic safety and security in places where Jewish life is actually thriving” — by revealing the truth of what I have termed “Jewish-free zones” at Berkeley Law.

While Hassner and Katz call my claims “outlandish,” not once do they deny that they are true. That is because the facts are undisputed. The severity of Berkeley’s problems are clearly understood by the extraordinary range of people — Jews and non-Jews, liberals and conservatives, pundits and celebrities — who have shared, circulated or retweeted my article.

These people, whom Hassner and Katz presumably also dismiss as panic-mongers, range from entertainer Barbra Streisand to Sen. Ted Cruz, from CNN’s Jake Tapper to Washington Examiner editor Seth Mandel. They understand the problem at the University of California at Berkeley. The only people who fail to understand it, apparently, are on the university’s faculty.

Hassner and Katz double down on Berkeley Law Dean Erwin Chemerinsky’s shoddy argument that the ban on Zionists is immaterial because only nine student groups amended their bylaws to adopt it. They actually write “happily” that “fewer than 10 out of the more than 100 student groups at the law school chose to adopt such a bigoted course of action.”

One could devote an entire seminar to this use of the word “happily.” Hassner and Katz are not only academics, they are heads of research centers funded by the Jewish community, and they profess happiness — of all possible emotional responses — at the fact that only nine Berkeley Law student groups formally ban Zionist speakers in their bylaws.

It is important to understand the ramifications. Nine student organizations, including the women’s and LGBTQ organizations, are banning anyone who supports the existence of Israel as the Jewish homeland as a speaker. That describes the vast majority of Jews. According to Pew, more than 80% of Jews feel Israel is an integral part of their Jewish identity. In 2021, a University of Vermont book club, the UVM Revolutionary Socialist Union, announced, “No racism, racial chauvinism, predatory behavior, homophobia, transphobia, Zionism, or bigotry and hate speech of any kind will be tolerated.” The group’s constitution and bylaws similarly require every member to pledge no to Zionism. The U.S. Department of Education recently launched a Title VI investigation.

This is where we’re headed if we follow down the path suggested by Hassner and Katz. The Constitution and the laws of the United States do not permit the exclusion of Jewish Americans or any other ethnic or racial group from any public campus programs or activities, let alone nine of them.

That these writers can observe “happily” the extent of this de jure segregation should be shocking to all readers. In fact, it is a common reaction among battle-scarred academics who have become so inured to Jew-hatred that they cease to resist it. They resemble the parable of the frog in boiling water.

Outsiders observe that the temperature is rising and know that the situation will soon become intolerable. But as the water temperature slowly rises, the frog adjusts to the discomfort until it is too late. Berkeley’s academic defenders prefer to accept the worsening campus temperature, quietly assimilating to a climate which outsiders will recognize as unsustainable.

Hassner and Katz are not wrong to boast about the centers that they head. For Jewish college students, American academia has long been a tale of two campuses. On the one hand, Jewish students at many colleges enjoy amenities and benefits, ranging from Hillel and Chabad houses to kosher food options to Jewish fraternities and sororities to Jewish faculty and administrators to falafel parties and Jewish studies classes. At the same time, Jewish students at these very campuses face increasing harassment, marginalization, vandalization and exclusion.

We should not ignore the value of the amenities, nor of the academic programs that faculty like Hassner and Katz provide. At the same time, we should not pretend that political science classes or falafel parties compensate for “nakedly discriminatory” conduct.

Hassner and Katz are absolutely correct when they say that we should not “assail the administration for decisions made by student groups.” Rather, we should hold the administration responsible for its own decisions.

These decisions include the decision to stand idly by while a great law school is brought low by what even Hassner and Katz acknowledge is a “bigoted course of action.” These decisions also include the effort to hide behind the freedom of speech, when the only speech under attack is that of the Jewish community.

It is these decisions for which public accountability is required. And it is required before the water begins to boil.

Kenneth L. Marcus

Kenneth L. Marcus is the founder and chairman of the Washington D.C.-based Louis D. Brandeis Center for Human Rights Under Law.