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OCTOBER 13• 2022 | 7

of the identity of many 
Jews. Its derogation is 
analogous, in this way, to 
other forms of hate and 
bigotry.
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 con-
stitutionally 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 stu-
dent groups to accept all 
students regardless of status 
or beliefs. Specifically, the 
Court blessed Hastings’ 
decision to require Chris-
tian groups to accept gay 
members.
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.
Universities should not 
have to be legally compelled 
to do what is obviously 
right. Anti-Zionist policies 
would still be monstrously 
immoral, even if they 
were not also unlawful. 
The students should be 
ashamed of themselves. 
As should grownups who 
stand quietly by or mutter 
meekly about free speech as 
university spaces go the way 
of the Nazis’ infamous call, 
judenfrei. Jewish-free. 

Kenneth L. Marcus is founder and 

chairman of the Louis D. Brandeis 

Center for Human Rights Under 

Law, which has represented Jewish 

students in the New Paltz, Tufts 

and USC cases discussed above. 

He served as the 11th assistant U.S. 

secretary of education for civil rights. 

This article was originally published 

by The Jewish Journal.

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