A battle of conflicting constitutional amendments
November 29, 2023 - A lawsuit against the University of Berkeley was filed on Tuesday by two Jewish organizations that alleges the college has failed to take action against and thus encouraged a culture of antisemitism in which violence is permitted against Jews. The 36-page lawsuit claims the university has allowed policies that violate the First Amendment's right to freedom of Religion, the 14th Amendment's equal protection clause, and Title VI of the Civil Rights Act.
Although the campus culture deteriorated significantly after Hamas massacred over a thousand Jews on October 7, the lawsuit, brought by the Brandeis Center and Jewish Americans for Fairness in Education, takes issue with university decisions that predate the raucous "anit-Zionist" demonstrations that followed that event.
Last year, several student groups in UC Berkeley's School of Law adopted a new bylaw, painted as antisemitic in the lawsuit, written by Law Students for Justice in Palestine (LSJP). The bylaw, now adopted by 23 of the roughly 100 law student groups, calls for the boycott of Israel and also for no group to allow a speaker who "expressed or continued to hold views...in support of Zionism, the apartheid state of Israel, and the occupation of Palestine."
Law School Dean Erwin Cherminsky, himself a pro-Zionist Jew, defends the bylaw as a matter of free speech. Kenneth Marcus, founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, contends that the bylaw is inherently antisemitic. "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," he wrote in a Jewish Journal article in September 2022. "This would immediately be recognized as exclusionary conduct, not protected speech."
In the lawsuit filed November 28, the argument is that "Conditioning a Jew's ability to participate in a student group on his or her renunciation of a core component of Jewish identity is no less pernicious than demanding the renunciation of some other core element of a student's identity." No such imposition is required "or would be remotely tolerated" of other students.
In addition to the policy allowing discrimination against pro-Israel Jews, which Cherwinsky admits constitute over 90 percent of American Jews, the lawsuit slams the university for failing to protect Jewish students from violence during the pro-Hamas demonstrations on campus after October 7. One student who was draped in an Israeli flag was reportedly hit with a water bottle. Other students have allegedly received emails calling for their gassing and murder.
Berkeley officials say they have offered support and counseling to Jewish students and encourage them to report antisemitic behavior.
A similar lawsuit alleging inaction against antisemitism and violence against Jews has been filed against New York University on November 15 by three students there. MIT has proactively announced an antisemitism initiative following several pro-Hamas unruly demonstrations on campus, but they have refused to "take sides" regarding the current war in Gaza or make a statement condemning the massacre on October 7.
Free speech means speech that can be hateful to some. But threats of and calls for violence are not protected under the First Amendment. Calls for "From the river to the sea" are generally understood to mean eliminating every Jew from the present Jewish state of Israel. U.S. Congressman Rashida Tlaib says this is rather an "aspirational call for freedom, human rights, and peaceful coexistence." But on some college campuses, including Berkeley and NYU, the distance between protected hateful speech and actual physical acts of violence can disappear radically and abruptly. Such situations are outlined in both lawsuits.
Berkeley's anti-Zionist LSJP claims that "Supporting Palestinian liberation does not mean opposition to Jewish people or the Jewish religion; in fact, Jewish liberation and Palestinian liberation are intertwined, and we are committed to each other's safety."
That, however, has not been the experience or the expectation of many Jewish students in today's college campuses or even in some high schools.