The University of California, Berkeley regents and the Louis D. Brandeis Center for Human Rights Under Law announced on March 19 that they settled a lawsuit alleging that the public school failed to adequately address Jew-hatred on campus. More than a week later, the two appear to disagree to agree on the terms.
As part of the settlement, Berkeley said that it will prevent student groups from banning speakers and limiting “officers, board members or speakers based on a category that is protected under federal or state law.” The agreement text makes clear that “Zionist” doesn’t constitute a protected class, but it adds that “Zionist” can often be a code word used to discriminate against “Jews” or “Israelis,” both of which are protected groups.
Shortly after the settlement was announced, Erwin Chemerinsky, dean of the university’s law school, emailed the school community with his understanding of the agreement terms and guidance on how law school student groups ought to comport themselves going forward.
A Brandeis Center official told JNS that Chemerinsky was not involved in the negotiations of the settlement and that his interpretation is “wrong” and “inconsistent with the agreement.” When JNS sought comment from the university, a Berkeley spokesman told JNS that it shares Chemerinsky’s understanding of the terms.
Chemerinsky wrote in the email that student groups cannot state in their bylaws that a certain kind of speaker is banned but still have the First Amendment right to choose which speakers to invite from the start, including “on the basis of viewpoint.”
“Under the settlement, the bylaws of the student organization cannot state a policy of restricting who may speak at the organization’s events,” he wrote.
Paul Eckles, senior litigation counsel at the Brandeis Center, told JNS that the dean’s email is “wrong” and “inconsistent with the agreement.”
“There were other terms in the agreement that specifically address Zionism and bans on Zionists, which he doesn’t mention in his email,” Eckles said. “We’re going to be working with the university to ensure that the students and members of the community receive complete and accurate information about the agreement and its terms.”
The agreement states that “they can choose speakers based on their opinions,” but it “does not say that they may adopt policies banning Zionists,” Eckles told JNS.
“The agreement has specific terms acknowledging that bans on Zionists have been used as a pretext for discrimination against Jews, and that such bans can violate UC Berkeley’s antidiscrimination policy,” he said. “That’s the part that he left out of his email, and so what he said is both not reflective of the text of the agreement and omits critical provisions in the agreement.”
The Brandeis Center is “confident that we’ll be able to work this out,” Eckles told JNS.
“We don’t want the issue with his email to overshadow the larger picture here, which is we think this is a very good settlement, comprehensive, that goes a long way toward addressing the problems of the campus,” he said.
JNS put the questions directly to Chemerinsky whether a student group would violate the agreement, either by articulating a policy of barring speakers who believe that Israel has the right to exist as a Jewish state or by de facto banning such speakers by never inviting them to begin with, without articulating it in writing.
“The settlement says that student groups may choose speakers based on viewpoint but cannot put it in a bylaw,” he told JNS. “The Women’s Law Association can choose to invite only speakers who support abortion rights. The College Republicans can choose to invite only conservatives. A student group likewise can invite only speakers who have particular views about Israel.”
“But they cannot put that policy in bylaws,” he said.
Asked what mechanism, if any, Berkeley could use if a student group opted to have a “shadow policy” and not invite a Jewish or Israeli speaker, say after 50, 100 or 1,000 speakers, Chemerinsky said that “student groups cannot discriminate based on race or religion in inviting speakers.”
“I believe a pattern like you describe would be discrimination,” he told JNS.
The dean told JNS that his Jewish identity “influences everything I do” and that he is also a “First Amendment scholar, and the law is clear that student groups have a First Amendment right to choose speakers based on viewpoint.”
JNS put the same questions to the Berkeley university-wide public relations office. “We have nothing to add from the central campus,” a spokesman for the public school said. It urged JNS to talk to Chemerinsky’s office. “The campus believes that the law school dean’s message is consistent with the terms of the agreement,” the spokesman said.
The lawsuit, which the Brandeis Center filed in November 2023, alleged that Berkeley failed to address the decisions of nine law school student groups to adopt bylaws stating they would not invite Zionist speakers to campus.
Eckles told JNS that Chemerinsky’s email was “ambiguous” and “leaves out critical terms of the settlement, and could falsely lead student groups to believe that it is OK to discriminate against protected classes as long as they don’t explicitly spell it out.”
According to Eckles, student groups can, under the agreement, “choose their own speakers based on their opinions.”
“What they cannot do is exclude anyone based on suspect classifications like race or ethnicity and, for that reason, cannot exclude Zionists as a group,” he said.
Asked if the agreement in any way compels student groups ever to invite a Jewish or Israeli speaker to begin with, Eckles said that it does not.
