How to tell protected “free speech” from discrimination

Analyzing UC Berkeley student groups’ new anti-Israel bylaws, civil rights expert Kenneth Marcus unpacks the (il)legality of excluding individuals by ethnic/racial identity. While defended as reasonable selectivity by student orgs, these bylaws blatantly discriminate against “Zionists” due to their country of origin, their culture: factors they did not choose. That doesn’t seem reasonable — or constitutional — at all, asserts Marcus.

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

Discriminatory conduct, including anti-Zionist exclusions, is not protected as free speech. While hate speech 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 Christian Legal Society v. Martinez, the U.S. Supreme Court upheld 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’ decision to require Christian groups to accept gay members.

Discriminatory conduct, including anti-Zionist exclusions, is not protected as free speech.

Putting legal precedents aside, major universities generally require student groups to accept “all comers,” regardless of “status of beliefs.” 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-Jewish 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.

This article originally appeared in the Jewish Journal. Read the whole thing here.

Follow Opportunity Now on Twitter @svopportunity

Image by Charlie Nguyen