Big Brandeis Center Victory for UC Berkeley Jewish Students

The University of California at Berkeley has agreed to pay $1 million dollars to settle the longstanding Brandeis Center lawsuit over “unchecked” anti-Semitism campus and law school student groups that officially barred pro-Israel speakers.

Under the terms of the settlement, Berkeley is revising its anti-discrimination policy so that targeting “Zionists” can be considered an impermissible pretext for anti-Jewish discrimination.  Additionally, student groups are no longer allowed to have by-laws prohibiting speakers.

“As a UC Berkeley alumnus, I am glad that we can finally resolve this long battle with a victory for Jewish American students and for all Americans who care about free speech and fairness,” Brandeis Center chairman Ken Marcus said in a statement. “What began as a ban on Zionist Jewish l, voices, regardless of the subjects they wished to address, and mushroomed into a widespread hostile environment will no longer be tolerated. What happened at Berkeley is a cautionary tale. Universities, unions, corporations, and political parties cannot create an anti-Zionist exception to their conduct codes. They cannot silence Jewish Americans on the pretext of advancing their own political agendas. As we have now seen time and again, if left unaddressed anti-Semitic bigotry, whether or not masked as anti-Zionism, only continues to expand. We will fight this bigotry wherever and whenever we find it, and we will win.”

But this fight may not be over.

The Brandeis Center is now accusing the Berkeley law school dean of contravening the settlement with his school-wide email that said student groups can continue to ban speakers provided the prohibitions are unofficial.

“Under the settlement, student organizations may continue to have policies as to who they will invite as speakers, including on the basis of viewpoint,” Dean Erwin Chemerinsky wrote. “However, under the settlement, the Bylaws of the student organization cannot state a policy of restricting who may speak at the organization’s events.”

“Simply put, student organizations may continue to have the same policies that they have adopted restricting who they will invite to speak, but these policies cannot be contained within their Bylaw.”

Brandeis Center lawyer Paul Eckles told the California Globe that, “The university had just agreed to rescind these discriminatory bylaws and he was messaging that [student groups] could continue doing what they are doing if they” used different language.

Eckles said he plans to take up Chemerinksy’s email with Berkeley officials. “We’ll be talking with the University about this issue and how to fix it.”

Berkeley Law Professor Steven Davidoff Solomon also accused Chemerinsky of green-lighting anti-Israel bans.

“As for Erwin, it is clear to me that Erwin mischaracterized the essence of the suit and settlement,” Solomon told the California Globe.  “The university’s policy clearly now states that “bans on Zionists have historically been used by some individuals and institutions as a pretext for excluding Jews and that such pretextual, exclusionary bans can violate university rules.”

“This means that any group that continues to impose bans on Zionists under the guise of antisemitism is explicitly prohibited from doing so. Erwin’s  stance encourages such actions, which undermines the core principles of inclusion and equality. It is also encouraging the use of per se bans directly at odds with the policy.  Finally — it defies common-sense — the UC is agreeing to eliminate the by-law but saying you can do the same thing anyway?

Solomon also said he wanted to emphasize that he believes Berkeley Chancellor Rich Lyons has improved the atmosphere for Jews on campus.

“I appreciate the efforts that Rich has made to improve the climate at UC Berkeley and the settlement is another step in the right direction though there is still work to do.”

Chemerinsky told the California Globe that he stands by his email.

“The terms of the settlement are clear: student groups may choose speakers based on their viewpoint, but cannot put it in the Bylaws.”

In any event,  Eckles emphasized that Chemerinksy’s missive should not distract from the significance of the settlement.

“We think it is a milestone and big victory. The email has  overshadowed the victory and how comprehensive the settlement is.”

“The University as part of the settlement recognized that anti-Zionists bans amounted to discrimination against Jews.”

The settlement agreement says that “bans on Zionists have historically been used by some individuals and institutions as a pretext for excluding Jews and that such pretextual, exclusionary bans can violate university rules.”

Berkeley also agreed to reaffirm that  “discrimination based on Jewish religion, shared ancestry, shared ethnicity, and Israeli national origin is prohibited.”

And when investigating discrimination complaints Berkeley is now required to use the IHRA definition of anti-Semitism that says particularly vituperative criticism of Israel can qualify as anti-Semitism.

The lawsuit was filed in the United States District Court for the Northern District of California in November 2023.

It charged that Berkeley administrators had allowed the “longstanding, unchecked spread of anti-Semitism” on campus and that the anti-Zionist bylaws of law school groups discriminated against Jews.

“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 — whether based on race, ethnicity, gender, or sexual identity,” said the lawsuit. “No such imposition is required — or would be remotely tolerated — of other students.”

Berkeley tried unsuccessfully to get the lawsuit dismissed and initially defended the anti-Zionist by-laws as First Amendment protected speech.

But now the school is heralding the settlement as evidence that Berkeley is hospitable to Jews.

Berkeley spokesman Dan Mogulof said in a statement that, “This settlement reflects UC Berkeley’s long-standing values and objectives when it comes to combatting abhorrent antisemitic expression, harassment, and discrimination when it occurs on the Berkeley campus. Since this litigation was filed in 2023, the university has taken significant steps to build upon its existing policies, programs and practices that address discrimination and harassment against Jews and Israelis, and to support the quality of Jewish life on campus, which the Anti-Defamation League describes as  ‘excellent’ in its latest ‘Campus Antisemitism Report Card.’  UC Berkeley, under the leadership of Chancellor Rich Lyons, is committed to continuing those efforts that ensure Berkeley continues to be a positive environment for Jewish students.”