Could a public law school prevent student groups from excluding lecturers because of their support for Israel?

Several UC Berkeley Law School student groups have pledged not to invite speakers — speaking on any topic — if those speakers “expressed and continued to hold opinions. .. in favor of Zionism, the apartheid state of Israel and the occupation of Palestine.” Berkeley Dean Erwin Chemerinsky, a prominent liberal constitutional scholar, condemned this position, but also argued,

I follow this with a message to the entire law school community: “The First Amendment does not allow us to exclude any point of view and I believe it is crucial that universities be places where all ideas can be expressed and discussed. The law school has an “all comers” policy, which means that each student group must allow any student to join and that all events organized by student groups must be open to all. students.” …

[N]o group violated law school policy and excluded a speaker because he is Jewish or has particular views about Israel. Such behavior would of course be punishable.

However, when I looked into the matter further, I came to the conclusion that the law school not already prohibit such “exclusions”[sions] speakers because of…having particular opinions about Israel”; I confirmed with Dean Chemerinsky that categorically excluding speakers based on their views on Israel – even when the event has nothing to do with Israel – would not be punishable by the rules.

But could there be such a policy? Could a public university prevent student groups from discriminating against speakers based on their point of view in this way?

[1.] For starters, private groups have the First Amendment right to choose who to invite as speakers based on the speakers’ opinions, even opinions unrelated to the particular event. I think Boy Scouts vs. Dale clarifies this: the Boy Scouts had the right to exclude Dale from the post of Assistant Scoutmaster because,

Dale, by his own admission, is part of a group of gay scouts who have “become leaders in their community and are open and honest about their sexual orientation”. Dale was the co-chair of a gay and lesbian organization in college and remains a gay rights activist. Dale’s presence in the Boy Scouts would, at the very least, compel the organization to send a message, both to young members and to the world, that the Boy Scouts accept homosexual conduct as a legitimate form of behavior….

[W]We have found that the Boy Scouts believe that homosexual conduct is incompatible with the values ​​they seek to instill in their young members; it will not “promote homosexual conduct as a legitimate form of behavior”. As the presence of [an Irish-American Gay, Lesbian, and Bisexual Group] in the St. Patrick’s Day Parade in Boston would have interfered with the parade organizers’ choice not to exhibit a particular point of view, Dale’s presence as an assistant scoutmaster would just as surely interfere with the Boy [Scouts’] choice not to express a point of view contrary to his convictions.

To be sure, assistant scout leaders speak for the group, and guest speakers do not need to. But they are certainly part of the “message” that the group seeks to “send” with its events. Indeed, speakers are often invited precisely because their presence (as well as what they say) will send a particular message.

Additionally, groups are necessarily very selective in many ways in the speakers they invite and seek to create a cohesive event with a particular message. Whatever rules apply to malls where visitors speak for themselves and not as part of the mall’s message, or for universities where recruiters speak for themselves and not as part of the university, the First Amendment protects the ability of groups to select which speakers they wish to invite to give group events the message that the groups seek to present.

[2.] That said, a public university can indeed impose reasonable and neutral restrictions on what groups do on university property or with university money, see Christian Legal Society v. Martinez. For example, they may require that student groups can only obtain such public benefits if they have the “all comers” policy noted by Dean Chemerinsky, even though private expressive groups on private property can choose their members. They may require that student groups be democratically structured, or that their leadership be limited to students, although private speaking groups on private property may of course be organized otherwise. And the list can go on.

So a university might be able to devise a neutral rule that a group of students can’t discriminate based on point of view in their choice of speakers – but that would be a very strange rule indeed, because often you would want invite speakers precisely because of the viewpoints they present. (Indeed, even if you try to organize a debate, you would invite speakers according to their contradictory points of view, and exclude speakers whose points of view seem to you too marginal, or for that matter too centrist.) Such a rule certainly wouldn’t be practically viable, and in fact could be so counterproductive that it is not “reasonable” for constitutional purposes.

A university might instead have a rule that prohibits student groups from discriminating based on a speaker’s point of view that is unrelated to the topic the speaker is discussing. This might be more reasonable, but might be harder to implement in a viewpoint-neutral way, since what counts as “unbound” can often be a disputed matter of degree, and would often depend on perception from the speaker’s point of view.

But beyond that, would a university really want to have such a rule? It seems to me that many groups might reasonably not wish to invite speakers whose views they find repugnant enough – Nazis, or Communists, or other supporters of violent revolution or riots, etc. – even if they talk about subjects far removed from these views.

More generally, suppose a pro-gay rights group prefers not to invite opponents of gay rights (whatever topics they discuss), or a traditionalist Catholic group prefers not to invite gay rights supporters to abortion or same-sex marriage, or for that matter, a Jewish group prefers not to invite people who endorse the Hamas Pact statement that “the day of judgment will not come until the Muslims fight the Jews (will kill the Jews)”. It seems like a plausible choice for these bands to make to shape what is after all an event they are putting on that they hope will appeal to their audience. And although such a choice could in some situations be condemned as closed-minded, I doubt that any school would want to forbid such choices.

[3.] What happens in opposition to the “no pro-Israel” policy, I think, is the judgment that pro-Israel views are different from the other views I describe: they are not not as repugnant or extreme as Nazi or Communist views, and they would be chosen by groups whose ostensible goals are quite remote from the Israeli-Palestinian dispute. And I share this judgment.

But I don’t think any university can implement that judgment in a constitutionally acceptable rule, precisely because it’s a judgment fundamentally based on a point of view: some points of view are so bad (or so incompatible with the objective of a group) that it is normal for groups to exclude speakers who hold them, but others do not.

We legitimately make such point-of-view judgments in various situations in our daily lives. (I hope we won’t exclude our friends from our lives, for example, just because we disagree with them on various topics, but we might as well if they start talking about how we should be killing Jews, capitalists, homosexuals, or policemen.) Yet a public university cannot implement such a viewpoint-based rule. It should either prohibit any exclusions based on the speaker’s point of view (regardless of the speaker’s point of view) or allow groups to engage in such exclusions.

[4.] So what is the cure? I think we see it, and it’s publicity. It is important for Jewish students, and for Jews more broadly, to understand the extent and shape of opposition to Israel among various other groups, including groups that many of these Jews might otherwise view as political allies. potentials. That a group is willing to exclude a wide range of American Jews as speakers, many of whom are left (even far-left) and may well agree with the vast majority of the group’s agenda, is an important data point that people should know about the band. (Here these groups are Berkeley Law Muslim Students Association, Middle Eastern and North African Law Students Association, Womxn of Color Collective, Asian Pacific American Law Student Association, Queer Caucus, Community Defense Project, Women of Berkeley Law and Law Students of African Descendence .) Of course, these groups do not necessarily speak for all of the students whose identity they claim, or even for all of their members. But they are, presumably, speaking on behalf of their leaders, and if the project gains momentum, there will be other groups whose leadership positions will become clear as well.

Indeed, I suspect American Jewish support for Israel stems in part from the idea that Jews need a place where they will always be welcome, even when other places turn against them. . “Home is where, when you have to go, they have to welcome you.” Apparently, even many of the apparent allies and supporters of “diversity, equity and inclusion” would be willing to boycott what is likely the vast majority of Jewish speakers. (“Caring about Israel is ‘essential’ to what being Jewish means to 45% of American Jewish adults, and an additional 37% say it’s ‘important, but not essential'”; this appears to be strongly correlated with “support for Zionism” or support for Israel.) This may well lead some American Jews to think that alliances with various non-Jewish groups can be risky and evanescent, and that it is more important to support other Jews (and a Jewish country) than to rely on such alliances.

Sometimes “the right remedy for bad advice is the right one” (to quote a famous Jew) because good ideas are the best way (however imperfect) to fend off bad ideas. But sometimes good advice can be about exposing bad advice and giving us a better sense of what the advocates of bad advice really think, so that we can decide more effectively what is needed to protect ourselves and those who are dear to us.

Nancy I. Romero