JOIN US (and Kenneth L. Marcus) FOR A VIRTUAL CLE PROGRAM ON NOVEMBER 3, @ 12:45 a.m. (Eastern) DEPAUL UNIVERSITY COLLEGE OF LAW CENTER FOR JEWISH LAW & JUDAIC STUDIES (JLJS) Antisemitic Influences in DEI Programs – Can They Be Corrected? Earn up to 3 units of General Illinois Continuing Education Credit – Register Here! Diversity, equity, and inclusion (“DEI”) are extremely important human rights ideals, and educational programming is an essential element in the effort to achieve them. On campus and in the workplace, there has been a dramatic and pervasive rise in DEI personnel and programming. At the same that ever-increasing resources are devoted to DEI, there has been an unprecedented explosion in virulent, hateful antisemitism. This program – and its outstanding presenters – examines whether these two developments are interrelated. It explores whether factors such as bias in DEI personnel, programs, and teachings deny the authentic Jewish experience and falsely label all Jews as merely part of the wrongfully “privileged White.” GUEST SPEAKERS Ronald C. Albucher, M.D. ~ Clinical Associate Professor, Stanford University Medical School Kenneth L. Marcus ~ Founder of the Louis D. Brandeis Center for Human Rights Under Law Suzanna Sherry ~ Professor of Law Emerita, Vanderbilt Law School April Powers ~ Managing Director, First Impression Rx, conducts training and diversity and inclusion strategy Jason Bedrick ~ Director of Policy at the Tikva Fund’s EdChoice and a research fellow in the Center for Education Policy at the Heritage Foundation [gview file=”https://brandeiscenter.com//home4/klmarcus/public_html/wp-content/uploads/2022/10/JLJS-NOV-2022-Flyer.pdf”]
Jewish Journal ~ October 12, 2022 ~ On “Jewish Free Zones” at Berkeley, the Debate between Chemerinsky and Marcus Continues Dean Chemerinsky writes: Dear Editor, Ken Marcus continues to make his nonsensical accusation that there is a Jewish-free zone at Berkeley Law. There is not now and never will be such a thing. Berkeley Law, and the Berkeley campus, has a strict rule prohibiting discrimination and indeed has an “all-comers” rule that all student organizations and all student events must be open to all students. I know of no instance in which this has been violated or any Jewish student excluded. Mr. Marcus continually focuses on a bylaw adopted by a handful of student groups that pledge to exclude speakers who support Zionism and Israel’s policies. I am stunned that Mr. Marcus never once has called me or anyone at the Law School to learn what has actually happened. For example, if he had done so, he would know that two dozen law professors, including me, signed a statement: “we also condemn the discriminatory bylaw adopted by a small minority of our law student groups refusing to accept speakers who have Zionist views or beliefs. We believe this rule is not only wrong but is antithetical to free speech and our community values. These bylaws would also impermissibly exclude a large majority of our faculty from participating in the work of these organizations, including our Dean. Many Jews (including some of us signing below who are Jewish) also experience this statement as antisemitism because it denies the existence of the state of Israel, the historical home of the Jewish people.” If Mr. Marcus had called, he would have learned that no speaker has been excluded on account of these or any other views. We also could have discussed how student groups inevitably may choose speakers because of their viewpoints. The Jewish Law Students Association can refuse to invite Holocaust deniers. The Black Law Students Association can refuse to invite white supremacists. I may not like the choices they make about what viewpoints they invite or not invite, but that is their First Amendment right. What is not allowed is excluding a speaker based on religion or race or sex or sexual orientation. And that has not – and I am confident will not happen at Berkeley Law. To be clear, the law, and campus policies, distinguish between word and deed, expression and action. To date the offending student groups have issued statements, declarations, and intentions. Those are constitutionally protected forms of expression. To date, no student has been excluded, cancelled, disinvited, or interrupted. To date no student has been denied the right or the ability to express themselves, to exercise their freedom of speech. Should that happen—and we are working hard to make sure it does not—that would represent a cross-over from expression to conduct and that would be subject to serious discipline. It is time to stop repeating the lie of a Jewish-free zone at Berkeley Law. Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of Law University of California, Berkeley School of Law Kenneth L. Marcus responds: Dean Erwin Chemerinsky says he is “stunned” that I “never once has called [him] or anyone at the Law School to learn what has actually happened.” I am flattered at the suggestion that he would like to hear from me. In fact, my colleagues and I have spoken with many people at the law school, if not with the dean himself, and have fully learned what actually happened. Indeed, it seems that by now everyone understands what actually happened. We just don’t understand why Dean Chemerinsky hasn’t been able to fix it. In fairness, although he has not called me either, Dean Chemerinsky deserves kudos for engaging personally on this issue, and for responding to my articles, even if neither his engagement nor his responses have hit the mark. If we had spoken directly, Dean Chemerinsky might understand that it is too much for even one student group to exclude Zionists (Jews by any other name) in their constitutions and bylaws, let alone nine. Second, Dean Chemerinsky would also know that Berkeley’s administration should stop denying that these nine groups have created Jewish-free zones. These are Jewish-free platforms, podia, or spaces. The fact is that these groups have constitutionally barred most Jews from speaking to Berkeley Law’s major identity groups. Dean Chemerinsky hasn’t denied even a single fact that I have written about Berkeley Law. He just doesn’t like the term “Jewish-free zones.” There is a simple way to stop people from talking about Jewish-free zones: Abolish them. Eliminate the barriers that prevent any group, including Zionists, from speaking. Third, if he had reached out, Dean Chemerinsky would stop denying that “no speaker has been excluded on account of these or any other views.” With due respect to the good dean, this is absurd. Mr. Chemerinsky and his Berkeley Law colleagues now acknowledge that these nine groups’ bylaws “impermissibly exclude a large majority of [Berkeley’s Law] faculty from participating in the work of these organizations, including [him].” Since he acknowledges that this is impermissible, he should stop permitting it. More to the point, he should stop funding it. In addition, we all know what happens when campus groups announce “no Zionists”– Jewish students either stop participating or they suppress that part of their Jewish identity to be accepted. Dean Chemerinsky suggests he will act once a Jewish speaker is turned away or a Jewish student is formally excluded. Once the bylaws were formalized that ship sailed. By not acting now, the damage is done. And if student groups take further discriminatory action by excluding Zionists in the future, there will be no way for Chemerinsky to know that they have done so. It is not as if they will tell the dean that they are doing what he has described as “impermissible.” These constitutions are not mere statements or declarations. They are binding commitments. In this case, nine groups have adopted policies that bind them to do what Dean Chemerinsky concedes to be impermissible. This is what judges call “facially” unlawful. At the end of the day, what matters is not so much what we call these “discriminatory bylaw[s]” (his word) but, rather, what we do about them. In his position, Dean Chemerinsky can do more than sign statements. He can eliminate the discrimination that he has identified. At a minimum, he can inform nine student groups that the University of California will no longer fund them as long as they are bound by their bylaws to do what the federal and state law prohibit. Kenneth L. Marcus is chairman of the Louis D. Brandeis Center for Human Rights Under Law and Distinguished Senior Fellow at George Mason University Scalia Law School’s Center for Liberty & Law.
Jewish Press ~ By Eve Glover – October 9, 2022 ~ Q&A With Brandeis Law Center Chairman On Banning Of Zionist Speakers At Berkeley Law This fall, nine student groups at Berkeley Law school – including Women of Berkeley Law, Asian Pacific American Law Students Association, Middle Eastern and North African Law Students Association, Law Students of African Descent and the Queer Caucus – amended bylaws to prohibit Zionists or anyone who supports Israel from speaking at events on campus. Several of these groups were also instrumental in passing a pro-BDS bylaw on August 21. On August 26, Erwin Chemerinsky, the Dean at Berkeley Law, told The Jewish News of Northern California that if this bylaw is taken literally, “this would mean that I could not be invited to speak because I support the existence of Israel, though I condemn many of its policies.” He also noted that “to say that anyone who supports the existence of Israel – that’s what you define as Zionism – shouldn’t speak would exclude about, I don’t know, 90 percent or more of our Jewish students.” This new rule is eerily reminiscent of the 1930s when signs were hung on store windows in cities like San Francisco that prohibited Jews from entering. Rabbi Abraham Cooper, associate dean and director of global social action at the Simon Wiesenthal Center, stated, “No Jews, no dogs, now no Zionists. Leave it to wannabe lawyers in Berkeley to legalize discrimination, censorship and hate.” Kenneth L. Marcus, founder and chairman of The Louis D. Brandeis Center for Human Rights Under Law, former Assistant U.S. Secretary of Education for Civil Rights and a graduate of Berkeley Law, wrote a widely publicized op-ed piece about this issue, which was published in the Jewish Journal on September 28. He remarked, “The students should be ashamed of themselves. As should grownups who stand quietly by or mutter meekly about free speech as university spaces go as the Nazis’ infamous call, judenfrei. Jewish-free.” Marcus spoke with The Jewish Press by telephone on Friday about on-campus antisemitism and the ominous potential repercussions of having exclusionary bylaws at a law school. At the time when you graduated from Berkeley Law in 1991, what was the climate there like with regard to antisemitism? While there was some hostility towards Israel and to Jewish Americans at the political extremes, I certainly didn’t sense it as being as pervasive as what we’ve seen. When did you first see an uptick in antisemitism on college campuses? What types of reports of antisemitism there were you first made aware of? I had actually first sensed the uptick . . . at the onset of the Second Intifada, late 2001, early 2002. I saw initial reports of incidents in California and on the East Coast that were different in kind than what I had seen before . . . At San Francisco State University, then at Columbia University and at the University of California at Irvine, I saw reports of systemic antisemitism of a deeply hateful manner that combined political opposition to the State of Israel with ancient stereotypes of Jewish identity. Would you say there was a correlation between the BDS (Boycott, Divestment and Sanctions) movement gaining traction and increasing antisemitism at this time? Yes, I would say that the BDS movement is a set of tactics that operationalized the new antisemitism as it was growing in virulence starting around 2001, 2002. What kind of work did you do to combat antisemitism when you were Assistant Secretary of Education in the George W. Bush and Trump administrations? The big development during the Trump years was the very important executive order on combating antisemitism. That executive order codified work that I had done during the George W. Bush administration to establish that Jewish students receive protections under Title VI of the Civil Rights Act of 1964, as well as some of the work that I had done earlier in the Trump administration to adopt the so called IHRA (International Holocaust Remembrance Alliance) working definition of antisemitism . . . When I left government, I could see that there was a need within the Jewish community to fight back against antisemitism using not only education and research but also law and public policy. Could you tell us about how The Brandeis Center, which you founded in 2011, supports victims of antisemitism on college campuses? We are a legal organization, providing free legal support for Jewish students, professors and staff members who are facing antisemitic discrimination on college campuses. And we have also begun work in other areas. For example, we have fought BDS in the international arena, through our lawsuit against Ben and Jerry’s. Are you noticing any trends in the cases you are currently representing? There is now a much more in-your-face targeted antisemitism that is directed at individual Jews and Jewish organizations. It’s not a matter of speech. It’s a matter of conduct. At USC, it involved trying to impeach a Jewish student, a government vice president, based on her feeling of connection to Israel. This was similar to an effort to impeach a pro-Israel Jewish student from a student government position at Tufts. At (SUNY) New Paltz and (the University of) Vermont, we’re seeing some of the most vulnerable students being excluded, such as (Zionist) students who are survivors of sexual violence and who are being told, essentially, that there is no space for them within survivor groups. In your Jewish Journal op-ed, you wrote about how student groups at Berkeley Law banning Zionists from being hired for speaking engagements is discrimination. Are there any other groups who have experienced being banned like this before? African Americans were banned from many parts of American higher education until the Heman Sweatt case, Brown v. Board of Education and the Civil Rights Act of 1964…. I don’t think that one could ignore the parallels with the awful history of racial and ethnic segregation in the United States that has affected African Americans, as well as Asians and other groups in various parts of the country. This is an evil part of our history that I never thought that we would revisit. I don’t want to suggest that what is happening to Jewish students at Berkeley Law is comparable to racial segregation in American public schools. And yet, it has a resonance historically that is disquieting. In Dean Chemerinsky’s response to your op-ed, he stated that “only a handful of student groups out of over 100 at Berkeley did this.” Would you like to comment on that? It is outrageous to suggest that it is okay for nine student organizations to ban Zionist speakers as long as other groups don’t ban them. Can you imagine a mayor saying that we shouldn’t worry if nine neighborhoods prohibit black people from owning houses? Because after all, there are so many other neighborhoods where blacks are permitted to live. Nobody would say that… What Dean Chemerinsky doesn’t seem to understand is that Zionism is more than just a set of political ideas. It is also an integral aspect of the identity of many Jewish Americans…This is not a free speech issue. This is a classic civil rights issue. In your op-ed, you mentioned that these exclusionary bylaws “operate like racially restrictive covenants, precluding minority participation into perpetuity.” Can you explain how this will prevent the next students that come in from being able to hire pro-Israel speakers? Can these bylaws ever be changed? Bylaws can always be changed…but this was an effort to do more than just affect one particular semester or one particular year; its effect would bar the Jewish community from speaking to these groups into the distant future. Is banning a certain group of people from speaking at school events unlawful? There can be no lawful basis for a public institution to exclude anyone on the basis of race or ethnicity from any of the opportunities that the institution affords. So this is an issue that is not only one of basic morality but also of law. Have you seen the exclusion of specifically Jews from campus events before? This has been a building movement. There have been several efforts over the last few years to treat Jewish organizations and individuals as being outside of the norm. That included the exclusion of Hillel and other Jewish organizations from the Know Your Rights fair at San Francisco State University just a few years ago; it also includes incidents in places like New York University. But this is building and getting worse, and we’re now seeing it to a greater extent at law schools than we’ve seen in the past. What is the unique significance or implication of this happening at a law school? Several years ago, the Brandeis Center established fellowships and chapters at law schools based on the notion that law schools are uniquely influential for the history of the country. Law schools train future lawyers, government officials, judges and other people who make important decisions for the country. And yet the Jewish community has not invested nearly so much in addressing legal education as it has with respect to undergraduate institutions. The Brandeis Center has had events and activities at law schools, but what we find is that when we are on the undergraduate campus, we see many other friendly Jewish organizations. On the Law School campus, [by] contrast, the major organizations that are active in our space tend to be anti-Israel extremist groups. They have gotten much more traction. We cannot be in a situation where we have great progress on the undergraduate campus but lose the law schools. If we lose the law schools, we will eventually lose the legislatures we will lose the courts, and we will lose the opportunity to defend ourselves legally. We simply cannot allow that to happen.
Jewish Journal ~ By Kenneth L. Marcus ~ October 9, 2022 Berkeley’s Jewish-Free Zones Are Worse Than You Think Berkeley Law’s students have institutionalized an ancient ideology of hate, incorporating it into the legal DNA of their major identity groups. (Photo by Justin Sullivan/Getty Images) For all the resistance that Berkeley’s enablers have generated, the facts are undisputed and indisputable. Berkeley Law’s students have institutionalized an ancient ideology of hate, incorporating it into the legal DNA of their major identity groups. In doing so, they have embodied this bigotry in a dangerous new form of silencing and exclusion. As Berkeley’s administration has conceded, nine Berkeley Law student groups amended their bylaws this academic year to prohibit Zionist speakers. It is important to be perfectly clear about what this means. An expert on real estate law would not be permitted to impart real estate expertise to any of these groups if they also support the existence of one Jewish state among 22 Arab countries in the Middle East. An expert in Title IX could not come speak to the women’s law group if they also support the right for Jewish liberation after thousands of years of anti-Jewish persecution and annihilation. An expert in the legality of gay marriage or gender discrimination employment law could not speak to the LGBTQ+ group. More than 80% of Jews support the existence of Israel as the Jewish homeland. They might also strongly object to Israel’s policies on settlements, they might firmly advocate for improved Palestinian rights, but if they so much as support a two-state solution, they would be banned by these groups. Make no mistake, these are Jew-free zones, i.e., platforms or podia forbidden to Jews. It is absurd to defend this, as Chancellor Christ and Dean Chemerinsky have done, as “less than ten groups out of 100.” Yes, nine is less than ten. These groups, however, represent wide swaths of the law school, including Berkeley Law’s women, Asian and Pacific Islander, African American, LGBTQ, and Middle Eastern student populations. To insinuate that this is less than ten percent, now that is misleading. Berkeley’s administration rationalizes, rather obscenely, that Jewish students can join these groups as members even if not as speakers. If the first nine rows of the bus are barred to Jews, it shouldn’t matter that Jews get to sit in the back. The truth, in fact, is the opposite of what Berkeley’s administration maintains. I have understated the case, not overstated it. To begin with, most of these groups incorporated the discriminatory provisions into their constitutions, not only their bylaws. That is to say, they baked anti-Zionism into their most basic charters. It is now as fundamental to their operations as, say, how they select officers. Worse, they did this to advance the anti-Semitic Boycott, Divestment, and Sanctions movement. They are not only banning pro-Israel speakers. Their new constitutional provision dedicates these groups to “wholly boycotting, sanctioning, and divesting funds from institutions, organizations, companies, and any entity that participates in or is directly/indirectly complicit in the occupation of the Palestinian territories and/or supports the actions of the apartheid state of Israel.” They are not, however, boycotting only Israel. They are boycotting American Jews. But it gets even worse. These nine groups’ constitutions and bylaws now place anti-Zionists in an entirely different position than any other group, no matter how vile. Consider, for example, Berkeley’s Asian Pacific American Law Student Association. Their constitution tackles no other current controversies. They are clear, however about one issue: they will “not invite speakers that have expressed and continue to hold views … in support of Zionism, the apartheid state of Israel, and the occupation of Palestine.” Their constitution does not ban people who have assaulted Asian Americans, despite the surge in such crimes during COVID. Only people who support Israel are constitutionally banned – and they are banned from addressing any subject, not just Israel. Berkeley’s Law Students of African Descent have done the same. Their constitution and bylaws do not ban white supremacists, neo-Nazis, or other anti-Black racists. They would not preclude an invitation to David Duke. Like other leaders of the Ku Klux Klan, Duke is a racist. This is not constitutionally disqualifying for Berkeley’s black law student organization, because Duke, like many other white supremacists, shares their view of Zionism. Berkeley Law’s Queer Caucus is similar. Aside from Zionists, the Queer Caucus does not ban any other category of speaker. They do not, for example, ban homophobic or transphobic speakers. Whoever murdered Ahmad Abu Maria, the gay 25-year old Palestinian, would face no constitutional bar on speaking to Berkeley Law’s Queer Caucus, because they were not Zionists. During his lifetime, Ahmad Abu Maria would probably have been subject to the bar, since he sought asylum in Israel. The Women of Berkeley Law do not, in their constitution and bylaws, ban sexist, misogynistic, or heterosexist speakers. They do not constitutionally ban rapists, child abusers, or those who engage in any form of sexual misconduct. Just Zionists. If an anti-Zionist misogynist were to sexually assault a Jewish woman under Sather Gate at the university’s entrance, the constitution of the Women of Berkeley Law would not ban the perpetrator from publicly addressing them. The victim, by contrast, would likely be banned. Daniel Pearl, a Zionist victim of beheading, would have been constitutionally banned during his lifetime from speaking to any of these groups. His anti-Zionist murderers would not have been. This behavior must be inexplicable to anyone who listens to Berkeley’s administration. It makes no sense if you believe Chancellor Christ’s recent message describing these actions as “nuanced thoughts and feelings” generated by a “crisis in the Middle East.” It is impossible to reconcile with Erwin Chemerinsky’s demonstrably false (not just misleading) claimthat “all some student groups have done is express their strong disagreement with Israel’s policies.” To understand what is happening at Berkeley we need to grasp two things. First, this is no mere criticism of Israel. It is the newest iteration of an ancient ideology that places the Jew at the center of all evil. Jew-hatred has always been more the criticism of Jews. It is a worldview that explains all of the world’s pain as byproduct of Jewish criminality. This central fact, and only this central fact, can explain the behavior of these law students. These groups have taken action, not merely expressed viewpoints. Constitutions and bylaws are not opinion pieces, not policy papers, not public fora. They are concise governance documents that establish fundamental rules, such as membership classifications, officers, and voting procedures. And now, at Berkeley Law, they also bar Israel’s supporters from speaking to these organizations, not only about the Middle East, but about any topic. This includes the great majority of Jews. Chemerinsky concedes that he would be banned, as would 90% of Berkeley’s Jewish law students. No other group is banned in this way. Not rapists. Not axe murderers. Only Zionists are banned. Second, these law students are pioneers, but not in a good way. They are pioneering a new form of Judeophobia which silences and excludes any Jew who does not adequately condemn the Jewish state. Just as anti-Semites long excluded Jews from polite society, Berkeley’s future lawyers – many of whom will one day be our legislators, mayors, and judges – are now expelling Jews from progressive spaces. Just as German Jews during the 19th century had to convert to Christianity to be allowed to participate in civil society and government office, American Jews in the 21st century are being forced to convert to anti-Zionism in order to participate in Berkeley’s civil society organizations, an ignominious process, which if not stopped, will only spread further. This is an effort to strip all Jews of something basic: the trappings of normality that have secured Jewish safety and security in America. While this is a story about Berkeley, it is not only a story about Berkeley. Berkeley is not Las Vegas. What happens there does not stay there. What begins there, and succeeds there, spreads elsewhere. And make no mistake: silencing Jews is the way such stories begin, not the way they end. Some in the Jewish community say that we are too alarmed over this. The real problem is that we are not alarmed enough. Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.
CBN News ~ By Gary Lane | October 7, 2022 ~ New Wave of Antisemitism Infecting US College Students, Hate Crimes Against Jews Hit All-Time High Anti-Jewish hate seems more common in big European cities or in New York City. But as the threat of antisemitism grows right here in the United States, college campuses are the new breeding ground for anti-Israel, anti-Jewish bias. Hate crimes against Jews set an all-time high last year. Most took the form of violent attacks and vandalism against synagogues and Jewish temples. This week on Capitol Hill, congressmen expressed concerns about a new wave of antisemitism infecting young American adults. “The substitution of the word Zionist for Jew has become the modus operandi of a new, insidious strain of antisemitism that has taken hold on college campuses and on social media platforms,” explained Rep. Ritchie Torres (D-NY). Often during public demonstrations, pro-Palestinian protestors call for Jews to be purged from college campuses and classrooms. And critics say that’s exactly what has happened at the University of California, Berkeley where some students have attempted to restrict pro-Israel speech. Berkeley Law School Dean, Erwin Chemerinsky, says media reports about “Jewish Free Zones” are not true. He said only a handful of student organizations, fewer than 10 out of 100, have adopted anti-Israel bylaws, which include a ban against pro-Israel speakers. Berkeley Law School graduate Kenneth Marcus is the founder and chairman of the Louis Brandeis Center for Human Rights. He called Chemerinsky’s response outrageous. “What if there had been any other context in which any other group was shut out of opportunities? Would a law school dean in the 21st century say not to worry?” he wondered. Marcus rhetorically asked if “it’s okay to have nine segregated areas just so long as we have many other areas that aren’t segregated.” Appearing on the CBN News program the Global Lane, Marcus described the speech ban as utterly absurd, ridiculous, and inconsistent with American law. So is this speech ban antisemitic, anti-Jewish, or just anti-Israel? “It’s all of those,” Marcus insisted. “Pick your poison. To begin with, it is a method of silencing one side of a political debate. It is a way of saying we should not permit anyone to participate in a discussion on campus if they are pro-Israel.” American Jewish leaders fear what has started in California may easily spread to other parts of the country. Marcus said Jewish students are already being marginalized and excluded on other college campuses because of the Zionist aspect of their Jewish identity. Jewish students at Rutgers University recently saw their fraternity house egged on the first day of Rosh Hashanah, the Jewish New Year. “We’re seeing a general effort to marginalize and exclude the Jewish community, to create the notion that Jews and the Jewish community and establishment are simply not a normal part of life on college and university campuses,” Marcus explained. “What’s happening at Berkeley Law now is in some respects unique, but in some respects it is simply the latest in what is clearly a nationwide trend and an ugly one,” he said. And concerned leaders like Marcus and Congressman Torres believe only by standing up and speaking out, can Americans reverse the growing tide of American antisemitism.
Jewish Journal ~ Kenneth L. Marcus ~ October 4, 2022 Is the Tide at Berkeley Beginning to Turn? At long last, under pressure, Berkeley Law’s Dean is pledging to enforce Berkeley’s anti-discrimination rules against any of these nine organizations that act upon their new bylaw provisions. He must be held to it. Students walk near Sather Gate on the University of California at Berkeley campus (Photo by Justin Sullivan/Getty Images) Last week, a Jewish Journal article I authored exposing Berkeley Law’s Jewish-free zones touched a nerve. Over the last few days, it has been discussed on countless platforms, widely praised, and retweeted by celebrities, elected officials, and others, for “exposing this appalling anti-Jewish discrimination” (as the ADL’s Jonathan Greenblatt put it). As is the way with such things, the article was also criticized, especially among Berkeley faculty displeased it made “major news.” But what is significant – more than the praise or the criticism – is that the tide is beginning to turn at Berkeley Law. Understanding the change requires a recap. At the start of this academic semester nine Berkeley Law groups changed their bylaws to ban Zionists from speaking to their groups. Berkeley Law’s Jewish Student Association immediately expressed alarm about “the impact this by-law is having on our Jewish community.” They observed that these bylaws put many Jewish students “in a position all too familiar: deny or denigrate a part of their identity or be excluded from community groups.” Berkeley Law Dean Erwin Chemerinsky, a progressive Zionist, acknowledged that he himself would be banned from speaking before the nine student groups, as would 90% of Berkeley’s Jewish law students. According to Pew, the vast majority of Jews view Israel as integral to their Jewish identity. Chemerinsky’s initial criticism was qualified, however. He emphasized that only nine groups were banning Zionist speakers, as if this were good news. And he chastised one of the first newspapers to report on it calling it a “minor incident” that “hardly should be news” and claiming the media was using it to “paint a misleading picture.” He was troubled that a particular viewpoint was silenced but seemed unaware that it was also a particular community – his own – that was being harmed. He failed to grasp the ramifications of what these groups are doing, or he just wanted it to go away without any attention or fanfare. But make no mistake, this was no mere act of viewpoint discrimination. In barring Zionists, these nine groups were banning a people. And Berkeley’s administration failed to resolve this problem, leaving the discriminatory boycotts in place. Several Jewish establishment figures decided to be quiet. Quietism has a long pedigree in Jewish communal history, but not necessarily a proud one. At all periods, Jewish establishment voices have urged community members to endure persecution in silence, assimilating to deteriorating conditions. The idea is that anything we say or do could provoke a backlash that makes things worse. The problem is that things are already getting worse – and it doesn’t help to permit anti-Jewish forces to entrench their gains. The troubles in Berkeley follow efforts to exclude Zionists from various campus spaces around the country. The Brandeis Center has recently convinced the Biden administration to investigate such incidents at the University of Southern California and the University of Vermont. But we are seeing such problems nationwide. When we permit serious discrimination to persist at major institutions like the University of California’s flagship school, we should expect that it will recur elsewhere. Since last week’s article, Berkeley’s Jewish apologists have circled their wagons. Chemerinsky criticized my article; I have refuted his criticisms. Two Berkeley professors, Ron Hassner and Ethan Katz, expressed indignation – not so much at what they call the “nakedly discriminatory” bylaws that they concede is “bound to make Jewish students feel excluded,” nor at Berkeley’s administration, for its feckless response – but at me, similar to how Chemerinsky initially blamed the media. They call my claims “outlandish” but not once do not deny that they are true. They call me inflammatory, because I rang the alarm when their house caught fire. Fortunately, the students are speaking back. On Tuesday evening, for example, over 150 student organizations, several at Berkeley, issued a joint statement urging the nine law student groups to rescind their discriminatory bylaws provisions. “As members of the global Jewish community,” they write, “we recognize these bylaws as a deliberate attempt to exclude Jewish students from the UC Berkeley campus community.” Now, with the whole world talking about the outrage – the exclusion of Jews, not the fact that I’ve written about it – Chemerinsky has written yet again, this time in the Daily Beast. Chemerinsky complains again about my initial article without challenging any of its factual assertions. He falsely claims that “all some student groups have done is express their strong disagreement with Israel’s policies,” when the undisputed facts show that they changed their bylaws to bar Zionist speakers. But then he does something remarkable. Chemerinsky announces that these nine groups will be punished if they follow through on their pledge to ban Zionist speakers. “Most importantly,” Chemerinsky writes, “no group has violated the Law School’s policy and excluded a speaker on account of being Jewish or holding particular views about Israel. Such conduct, of course, would be subject to sanctions.” At long last, under pressure, Berkeley Law’s Dean is pledging to enforce Berkeley’s anti-discrimination rules against any of these nine organizations that act upon their new bylaw provisions. He must be held to it. This is a significant commitment, and it’s a far cry from his initial statement. Chemerinsky could not pledge to punish these groups if he believed that their actions were constitutionally protected. Implicit in his pledge is the understanding, delayed as it is, that neither our Constitution nor our laws protect actions that restrict equal protection. Implicit also is the awareness that anti-Zionist actions violate anti-discrimination rules. Anti-Zionism is racism, pure and simple. It is hardly enough, though, to tuck an important policy statement into a parenthetical comment in an internet publication. Chemerinsky must take the next step and make it formal. And he must convince all Berkeley law student groups to remove anti-Zionist provisions from their bylaws. He should remind these groups that their future application for bar membership is contingent upon a moral character determination. Adoption of discriminatory bylaws is hardly evidence of high moral character. He should remind them that exclusionary bylaws are inconsistent with their status as university-funded, registered student organizations. As nearly 30 Jewish, civil rights, and pro-Israel organizations put it in a joint statement issued on Monday evening, “the nine student organizations should rescind the new, discriminatory provisions from their bylaws or face appropriate sanctions for their failure to do so.” The law, and basic standards of fairness and decency, demand nothing less. Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.
~ Kenneth L. Marcus ~ October 4, 2022 Is the Tide at Berkeley Beginning to Turn? At long last, under pressure, Berkeley Law’s Dean is pledging to enforce Berkeley’s anti-discrimination rules against any of these nine organizations that act upon their new bylaw provisions. He must be held to it. Students walk near Sather Gate on the University of California at Berkeley campus (Photo by Justin Sullivan/Getty Images) Last week, a Jewish Journal article I authored exposing Berkeley Law’s Jewish-free zones touched a nerve. Over the last few days, it has been discussed on countless platforms, widely praised, and retweeted by celebrities, elected officials, and others, for “exposing this appalling anti-Jewish discrimination” (as the ADL’s Jonathan Greenblatt put it). As is the way with such things, the article was also criticized, especially among Berkeley faculty displeased it made “major news.” But what is significant – more than the praise or the criticism – is that the tide is beginning to turn at Berkeley Law. Understanding the change requires a recap. At the start of this academic semester nine Berkeley Law groups changed their bylaws to ban Zionists from speaking to their groups. Berkeley Law’s Jewish Student Association immediately expressed alarm about “the impact this by-law is having on our Jewish community.” They observed that these bylaws put many Jewish students “in a position all too familiar: deny or denigrate a part of their identity or be excluded from community groups.” Berkeley Law Dean Erwin Chemerinsky, a progressive Zionist, acknowledged that he himself would be banned from speaking before the nine student groups, as would 90% of Berkeley’s Jewish law students. According to Pew, the vast majority of Jews view Israel as integral to their Jewish identity. Chemerinsky’s initial criticism was qualified, however. He emphasized that only nine groups were banning Zionist speakers, as if this were good news. And he chastised one of the first newspapers to report on it calling it a “minor incident” that “hardly should be news” and claiming the media was using it to “paint a misleading picture.” He was troubled that a particular viewpoint was silenced but seemed unaware that it was also a particular community – his own – that was being harmed. He failed to grasp the ramifications of what these groups are doing, or he just wanted it to go away without any attention or fanfare. But make no mistake, this was no mere act of viewpoint discrimination. In barring Zionists, these nine groups were banning a people. And Berkeley’s administration failed to resolve this problem, leaving the discriminatory boycotts in place. Several Jewish establishment figures decided to be quiet. Quietism has a long pedigree in Jewish communal history, but not necessarily a proud one. At all periods, Jewish establishment voices have urged community members to endure persecution in silence, assimilating to deteriorating conditions. The idea is that anything we say or do could provoke a backlash that makes things worse. The problem is that things are already getting worse – and it doesn’t help to permit anti-Jewish forces to entrench their gains. The troubles in Berkeley follow efforts to exclude Zionists from various campus spaces around the country. The Brandeis Center has recently convinced the Biden administration to investigate such incidents at the University of Southern California and the University of Vermont. But we are seeing such problems nationwide. When we permit serious discrimination to persist at major institutions like the University of California’s flagship school, we should expect that it will recur elsewhere. Since last week’s article, Berkeley’s Jewish apologists have circled their wagons. Chemerinsky criticized my article; I have refuted his criticisms. Two Berkeley professors, Ron Hassner and Ethan Katz, expressed indignation – not so much at what they call the “nakedly discriminatory” bylaws that they concede is “bound to make Jewish students feel excluded,” nor at Berkeley’s administration, for its feckless response – but at me, similar to how Chemerinsky initially blamed the media. They call my claims “outlandish” but not once do not deny that they are true. They call me inflammatory, because I rang the alarm when their house caught fire. Fortunately, the students are speaking back. On Tuesday evening, for example, over 150 student organizations, several at Berkeley, issued a joint statement urging the nine law student groups to rescind their discriminatory bylaws provisions. “As members of the global Jewish community,” they write, “we recognize these bylaws as a deliberate attempt to exclude Jewish students from the UC Berkeley campus community.” Now, with the whole world talking about the outrage – the exclusion of Jews, not the fact that I’ve written about it – Chemerinsky has written yet again, this time in the Daily Beast. Chemerinsky complains again about my initial article without challenging any of its factual assertions. He falsely claims that “all some student groups have done is express their strong disagreement with Israel’s policies,” when the undisputed facts show that they changed their bylaws to bar Zionist speakers. But then he does something remarkable. Chemerinsky announces that these nine groups will be punished if they follow through on their pledge to ban Zionist speakers. “Most importantly,” Chemerinsky writes, “no group has violated the Law School’s policy and excluded a speaker on account of being Jewish or holding particular views about Israel. Such conduct, of course, would be subject to sanctions.” At long last, under pressure, Berkeley Law’s Dean is pledging to enforce Berkeley’s anti-discrimination rules against any of these nine organizations that act upon their new bylaw provisions. He must be held to it. This is a significant commitment, and it’s a far cry from his initial statement. Chemerinsky could not pledge to punish these groups if he believed that their actions were constitutionally protected. Implicit in his pledge is the understanding, delayed as it is, that neither our Constitution nor our laws protect actions that restrict equal protection. Implicit also is the awareness that anti-Zionist actions violate anti-discrimination rules. Anti-Zionism is racism, pure and simple. It is hardly enough, though, to tuck an important policy statement into a parenthetical comment in an internet publication. Chemerinsky must take the next step and make it formal. And he must convince all Berkeley law student groups to remove anti-Zionist provisions from their bylaws. He should remind these groups that their future application for bar membership is contingent upon a moral character determination. Adoption of discriminatory bylaws is hardly evidence of high moral character. He should remind them that exclusionary bylaws are inconsistent with their status as university-funded, registered student organizations. As nearly 30 Jewish, civil rights, and pro-Israel organizations put it in a joint statement issued on Monday evening, “the nine student organizations should rescind the new, discriminatory provisions from their bylaws or face appropriate sanctions for their failure to do so.” The law, and basic standards of fairness and decency, demand nothing less. Kenneth L. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.
New York ~ The Sun By A.R. HOFFMAN, Saturday, May 21, 2022 ~ A Reckoning on Antisemitism Approaches for NYU The Biden administration will decide whether to keep NYU under federal scrutiny or give it a clean bill of antisemitic health just weeks after an antisemitism scandal. A moment of reckoning has arrived for New York University and antisemitism on university campuses. NYU could see its federal Title VI monitoring, intended to address precisely that bigotry, expire at the end of the month. Whether to keep NYU under federal scrutiny or give it a clean bill of antisemitic health just weeks after an antisemitism scandal that revolves around messages sent school-wide that denounced the “omnipresent Zionist grip of the media” will be a decision for the Biden administration’s Department of Education to make in the coming days. NYU Law, whose board and alumni rolls boast a panoply of legal superstars and pillars of New York’s Jewish community, in 2020 signed an agreement with the Department of Education Civil Rights Division, known as OCR, to quash a Title VI complaint that alleged a “hostile environment for Jewish students on campus.” The complaint adumbrated “two years of extreme anti-Semitism on the NYU campus which has created an intolerable and unlawful hostile atmosphere for Jewish students.” In agreeing to the resolution, NYU denied any wrongdoing in connection with these accusations. Title VI is a provision of the 1964 Civil Rights Act that “prohibits discrimination on the basis of race, color, or national origin.” It is binding on “any program or activity that receives Federal funds or other Federal financial assistance.” As written, Title VI does not explicitly address religion. That lacuna was filled by a 2019 Executive Order spearheaded by the founder and director of the Brandeis Center for Human Rights Under Law and onetime assistant U.S. secretary of education for civil rights, Kenneth L. Marcus. It mandated that “discrimination against Jews may give rise to a Title VI violation.” This allegation was precipitated by “multiple incidents of alleged harassment” spanning years. These incidents included a student tweeting that he wanted “all Zionists to die” as well as a physical attack on a pro-Israel group in Washington Square Park. In agreeing to a settlement resolution in order to “voluntarily resolve the Complainant’s allegation without further investigation,” NYU undertook to “take all necessary actions, including pursuant to its student discipline process,” to ensure that anti-Semitism did not persist on campus. These include reporting, outreach, and training commitments. It will now be up to Biden administration officials in the Department of Education to decide if NYU has shown itself to be on the road to recovery. This raises the possibility that the school will make the case for being beyond reproach even as many of its Jewish students feel under attack. OCR did not respond to repeated requests for comment. Mr. Marcus tells the Sun that it would be a “bad look to release NYU from monitoring when there are still significant issues with antisemitism.” He went on to say that the “Biden administration can’t close its eyes to what is happening at NYU.” The university is likely to be “anxious” to shed these monitoring requirements. While monitoring agreements of this kind do not typically feature an official sunset date, they are reviewed by OCR staff after their last reporting requirements. For NYU, that is May 31 of this year. If the school has been cleared, it will receive a letter with notification of that change in status. Recent events have complicated NYU’s case for release. As reported by the Washington Free Beacon, a series of schoolwide emails from the Students for Justice in Palestine group sent in April lambasted “Zionist” control of the press, advocated for violence, and disdained nonviolence as a “racialized theory.” The statement was endorsed by 11 other student groups. Mr. Marcus tells the Sun that the emails from Students for Justice in Palestine are undoubtedly “massively antisemitic.” No doubt aware of the resolution’s timeline, the dean of the law school, Trevor Morrison, wrote that he found those statements “very troubling” and expressed concern “about their potentially harmful effect on some Jewish members of our community.” The Sun reached out to several members of NYU’s Board of Trustees, many of whom are leading lights in both the legal community and Jewish world. These include a founder of one of America’s most prestigious law firms, Marty Lipton, and the president of Garden Home and owner of the Minnesota Vikings, Mark Wilf. None responded to requests for comment. Instead, a spokesperson sent the Sun a joint statement by NYU and NYU Law saying that they “vehemently reject and condemn anti-Semitism; it has no place in our community.” The school also noted that “several complaints have been filed” in connection with these emails. These protestations notwithstanding, Mr. Marcus identifies the emails from Students for Justice in Palestine as part of a larger pattern of administrative malpractice whereby NYU “has not been effective in how it has addressed antisemitism.” While noting a “continuing pattern” of antisemitic incidents at the Astor Place headquartered school, Mr. Marcus also reminds that the executive order that names those as Title VI violations “has not been rescinded,” and neither has OCR’s obligation to monitor NYU for violations. At least, not until the end of May. With that framework in place, Mr. Marcus believes that if NYU “fails to address this harassment,” this surfacing of antisemitism is likely to be the “basis for future action,” prompted by student complaints. If the resolution is allowed to expire, those actions will have to start from scratch. For his part, Mr. Marcus believes that disciplining individual students in circumstances such as this “can backfire” and precipitate censorship concerns, even as he urges systemic change and insists that “doing nothing is not an option.” The events at NYU have transpired against a backdrop that appears to portend a deteriorating environment for American Jews, both on campus and otherwise. The Anti-Defamation League reported a 34 percent increase in antisemitic incidents in 2021, yielding the highest number on record. The City University of New York’s law school faculty recently voted to endorse the Boycott, Divestment, Sanctions movement and featured a commencement speaker who lambasted “Zionist harassment” and last year said “abolishing Israel is the key to peace.” Another study, published by the American Jewish Committee, found that nearly four in 10 respondents believed that “the anti-Israel climate, on campus or elsewhere, has forced me to hide my Jewish identity.” Another study, published by the American Jewish Committee, found that nearly four in 10 respondents believed that “the anti-Israel climate, on campus or elsewhere, has forced me to hide my Jewish identity.” A.R. HOFFMAN Mr. Hoffman is a reporter and assistant editor of the Sun, where he covers politics and culture. He holds a PhD from Harvard and a law degree from Stanford, and is a 2021-2022 Journalism Fellow at the Hartman Institute. He is an adjunct assistant professor at New York University’s School of Liberal Studies.
Jewish Journal ~ By Kenneth L. Marcus | May 19, 2022 ~ The Buffalo Massacre Was More Than Meets the Eye No matter how you look at it, this brutal act was horrific. Beyond the immediate victims, the shooting has spread terror throughout America, especially in Buffalo’s Black community. Kenneth L. Marcus Photo by Scott Olson/Getty Images In what has been called the “Buffalo Massacre,” on May 14, 2022 18-year-old white college student Payton Gendron shot over a dozen people, nearly all black. Ten have died. Despite massive coverage, politicians and commentators are mostly getting the story wrong. No matter how you look at it, this brutal act was horrific. Beyond the immediate victims, the shooting has spread terror throughout America, especially in Buffalo’s Black community. The massacre was surely “motivated by race,” as many have argued—and by white supremacy, as New York Gov. Kathy Hochul specified. Gendron chose the crime scene for its high concentration of Black people. His anti-Black racism was real, reprehensible and tragic. But there is more to this story than meets the eye. The Buffalo Massacre is not just about anti-Black racism, white supremacy, or the so-called replacement theory. Reflecting a widespread but incomplete understanding of Gendron’s crime, Hochul pledged, “Mark my words: we’ll be aggressive in our pursuit of anyone who subscribes to the ideals professed by other white supremacists, and how there’s a feeding frenzy on social media platforms, where hate festers more hate,” she said. But this misunderstands the problem. Gendron explained his motivation in a manifesto. He says he targeted the Black community, because they present numerous, convenient, “soft” targets. This is a disgusting way to talk about human beings. But the point is that he had more targets in mind, beyond the Black community. The Buffalo victims were not the sole source of Gendron’s hatred. Nor do they represent the whole “problem” Gendron sought to solve. Without diminishing the horrors of Buffalo, we need to understand that this crime fits a pattern. Gendron chose Black victims, but his loathing ran deeper. Like other recent mass-murderer—from all parts of the political spectrum—Gendron was driven by an age-old conspiratorial hatred. In his manifesto, Gendron wrote, Jews “are the biggest problem the Western world has ever had …They must be called out and killed.” In Gendron’s warped view, Jews are orchestrating a global system in which racial minorities are taking public funding and usurping roles previously held by white Christians. He drew these ideas from “replacement theory.” That theory, however, is not fundamentally what is at issue here. The Buffalo Massacre is the third major, multi-victim crime this year in which antisemitic conspiracy theory played a central role. In all three cases, the antisemitic element has been ignored, downplayed or misunderstood. And yet the failure to grasp this problem has endangered members of all communities. The scapegoating of Jews for societal ills has led to violent crimes against Jews, against people thought to be part of Jewish conspiracies, against those living or traveling near Jewish neighborhoods, as well as against members of other targeted groups. The day before the Buffalo Massacre, accused Brooklyn Subway Shooter Frank James appeared in court for firing his handgun 33 times on a crowded subway train. James had posted a Facebook video that castigates Jews while showing photos of Adolf Hitler and images of Jewish Holocaust victims. “This is gonna be about Jews and my personal relationship with Jews.” Like Gendron, James sees Jews as the center of a system that abuses persons like himself. James, however, is no white supremacist. In his case, antisemitism was laced through an ideology of black supremacy. Like Gendron, James chose victims who were not primarily Jewish, yet Jew-hatred rendered his worldview lethal. In January, Malik Faisal Akram, a British Pakistani man, entered a Colleyville, Texas, synagogue and held a rabbi and his congregants hostage to demand freedom for imprisoned terrorist Aafia Siddiqui— a convicted terrorist who dismissed her legal defense team because her lawyers were Jewish and who wanted jurors to take DNA tests to make sure they were not Zionists. “Study the history of the Jews,” Siddiqui once said. “They have always back-stabbed everyone who has taken pity on them and made the ‘fatal’ error of giving them shelter.” Nevertheless, the FBI initially failed to understand the antisemitic character of this event. Gendron, James, and Akram represent three different races and three different mindsets: white supremacist, black supremacist, and radical Islamist. Yet their ideas were unified and made murderous by the same central principle: the age-old conspiratorial fantasy that Jews are an all-powerful cabal who are responsible for all the world’s evils. The end-game for this ideology is genocidal. Gendron speaks for genocidal antisemites of all stripes when he calls for a war between Jews and non-Jews. “The real war I’m advocating for is the gentiles vs the Jews,” he wrote. In the meantime, no one is safe from these criminals. Some perpetrators, driven by antisemitism, choose Jewish targets, as in Poway, California, or the Pittsburgh synagogue shooting. In other cases, they choose targets who are not Jewish. That is because antisemitism is commonly at the core, and it serves to bolster and metastasize, other forms of hate, including anti-Black and anti-White racism. Antisemitism is also often the first sign of a deteriorating society. To prevent the next Buffalo Massacre, the next Brooklyn Subway shooting, the next Colleyville hostage-taking, we need to grasp that what unites all of these criminals in murderous ambition is the all-encompassing global ideology of antisemitism. We must confront that evil, and fast, or we will have many more bodies to bury. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law and author of The Definition of Anti-Semitism. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.
The Buffalo Massacre Was More Than Meets the Eye No matter how you look at it, this brutal act was horrific. Beyond the immediate victims, the shooting has spread terror throughout America, especially in Buffalo’s Black community. Kenneth L. Marcus Photo by Scott Olson/Getty Images In what has been called the “Buffalo Massacre,” on May 14, 2022 18-year-old white college student Payton Gendron shot over a dozen people, nearly all black. Ten have died. Despite massive coverage, politicians and commentators are mostly getting the story wrong. No matter how you look at it, this brutal act was horrific. Beyond the immediate victims, the shooting has spread terror throughout America, especially in Buffalo’s Black community. The massacre was surely “motivated by race,” as many have argued—and by white supremacy, as New York Gov. Kathy Hochul specified. Gendron chose the crime scene for its high concentration of Black people. His anti-Black racism was real, reprehensible and tragic. But there is more to this story than meets the eye. The Buffalo Massacre is not just about anti-Black racism, white supremacy, or the so-called replacement theory. Reflecting a widespread but incomplete understanding of Gendron’s crime, Hochul pledged, “Mark my words: we’ll be aggressive in our pursuit of anyone who subscribes to the ideals professed by other white supremacists, and how there’s a feeding frenzy on social media platforms, where hate festers more hate,” she said. But this misunderstands the problem. Gendron explained his motivation in a manifesto. He says he targeted the Black community, because they present numerous, convenient, “soft” targets. This is a disgusting way to talk about human beings. But the point is that he had more targets in mind, beyond the Black community. The Buffalo victims were not the sole source of Gendron’s hatred. Nor do they represent the whole “problem” Gendron sought to solve. Without diminishing the horrors of Buffalo, we need to understand that this crime fits a pattern. Gendron chose Black victims, but his loathing ran deeper. Like other recent mass-murderer—from all parts of the political spectrum—Gendron was driven by an age-old conspiratorial hatred. In his manifesto, Gendron wrote, Jews “are the biggest problem the Western world has ever had …They must be called out and killed.” In Gendron’s warped view, Jews are orchestrating a global system in which racial minorities are taking public funding and usurping roles previously held by white Christians. He drew these ideas from “replacement theory.” That theory, however, is not fundamentally what is at issue here. The Buffalo Massacre is the third major, multi-victim crime this year in which antisemitic conspiracy theory played a central role. In all three cases, the antisemitic element has been ignored, downplayed or misunderstood. And yet the failure to grasp this problem has endangered members of all communities. The scapegoating of Jews for societal ills has led to violent crimes against Jews, against people thought to be part of Jewish conspiracies, against those living or traveling near Jewish neighborhoods, as well as against members of other targeted groups. The day before the Buffalo Massacre, accused Brooklyn Subway Shooter Frank James appeared in court for firing his handgun 33 times on a crowded subway train. James had posted a Facebook video that castigates Jews while showing photos of Adolf Hitler and images of Jewish Holocaust victims. “This is gonna be about Jews and my personal relationship with Jews.” Like Gendron, James sees Jews as the center of a system that abuses persons like himself. James, however, is no white supremacist. In his case, antisemitism was laced through an ideology of black supremacy. Like Gendron, James chose victims who were not primarily Jewish, yet Jew-hatred rendered his worldview lethal. In January, Malik Faisal Akram, a British Pakistani man, entered a Colleyville, Texas, synagogue and held a rabbi and his congregants hostage to demand freedom for imprisoned terrorist Aafia Siddiqui— a convicted terrorist who dismissed her legal defense team because her lawyers were Jewish and who wanted jurors to take DNA tests to make sure they were not Zionists. “Study the history of the Jews,” Siddiqui once said. “They have always back-stabbed everyone who has taken pity on them and made the ‘fatal’ error of giving them shelter.” Nevertheless, the FBI initially failed to understand the antisemitic character of this event. Gendron, James, and Akram represent three different races and three different mindsets: white supremacist, black supremacist, and radical Islamist. Yet their ideas were unified and made murderous by the same central principle: the age-old conspiratorial fantasy that Jews are an all-powerful cabal who are responsible for all the world’s evils. The end-game for this ideology is genocidal. Gendron speaks for genocidal antisemites of all stripes when he calls for a war between Jews and non-Jews. “The real war I’m advocating for is the gentiles vs the Jews,” he wrote. In the meantime, no one is safe from these criminals. Some perpetrators, driven by antisemitism, choose Jewish targets, as in Poway, California, or the Pittsburgh synagogue shooting. In other cases, they choose targets who are not Jewish. That is because antisemitism is commonly at the core, and it serves to bolster and metastasize, other forms of hate, including anti-Black and anti-White racism. Antisemitism is also often the first sign of a deteriorating society. To prevent the next Buffalo Massacre, the next Brooklyn Subway shooting, the next Colleyville hostage-taking, we need to grasp that what unites all of these criminals in murderous ambition is the all-encompassing global ideology of antisemitism. We must confront that evil, and fast, or we will have many more bodies to bury. Marcus is founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law and author of The Definition of Anti-Semitism. He served as the 11th Assistant U.S. Secretary of Education for Civil Rights.
Brandeis Brief: May 2022 This month, the Brandeis Center was busy leading efforts and partnering with allies to protect Jews from anti-Semitic harassment and discrimination, both on and off campus: LDB filed a brief in the legal case against Ben & Jerry’s, arguing that Unilever “effectively concede[s] that the only reason for not renewing [our clients’] license is [their] refusal to engage in illegal conduct.” As Mohammed El-Kurd prepared to speak at Georgetown, LDB urged the University to promptly condemn anti-Semitic rhetoric that threatens to poison the atmosphere against Jewish students. LDB partnered with AMCHA Initiative, Academic Engagement Network, and Scholars for Peace in the Middle East to urge a dozen U.S. universities to withdraw institutional membership from the Middle East Studies Association after it endorsed an academic boycott of Israel. LDB urged the Fifth Circuit Court of Appeals to uphold the Texas anti-BDS law. LDB expanded its chapter network to include the University of Illinois-Chicago Law school. Elan Carr, former U.S. Special Envoy to monitor and combat anti-Semitism, relied on LDB’s groundbreaking survey of openly Jewish college students in his latest article. Kenneth Marcus wrote in Newsweek about the NYC subway shooter’s anti-Semitic worldview. Alyza Lewin was a featured speaker in webinars for TIKVAH Fund and CUNY Alliance for Inclusion while Kenneth Marcus was a featured speaker for the DePaul College of Law’s Center for Jewish Law and Judaic Studies. Campus Reform interviewed LDB Chairman Kenneth Marcus about a student newspaper’s “disgraceful” apology for publishing an op-ed condemning anti-Semitism. LDB Scholar-in-Residence Diane Kunz recommended two new readings on anti-Zionism and the reestablishment of the modern state of Israel. LDB intern Davis Allen blogged about new laws from Iowa and Kanas adopting the IHRA Definition – and received two awards for his work on Holocaust and Genocide Studies. LDB hired its first director of communications. Call-for-submissions: law school fellowships for the 2022-23 academic year. Read about these and other developments at the Center in this month’s Brief. As always, we thank you for your tax-deductible donations and acknowledge that without you our work could not be done. LDB’s Rebuttal Brief in Ben & Jerry’s Case Argues Unilever ‘Conceded’ Key Argument In a rebuttal brief filed with the U.S. District Court for the District of New Jersey, LDB noted that Defendant Unilever (in its opposition brief) “Effectively concede[s] that the only reason for not renewing [our client American Quality Products and its owner Avi Zinger]’s license is AQP’s refusal to engage in illegal conduct.” LDB argued that Unilever’s insistence that it possesses an “absolute” right to terminate – or refuse renewal – of AQP’s contract disregards abundant legal precedent establishing that refusal to obey unlawful orders is itself an unlawful precondition for termination or non-renewal. LDB’s brief further contends that Unilever declined to refute facts that termination would cause “irreparable harm” to AQP and Zinger. “Unilever’s unlawful demand that Avi Zinger and AQP discriminate against customers based on their residence isn’t a ‘side show’ – it’s the main show,” declared Brandeis Center President Alyza Lewin. “By insisting Zinger violate Israel and U.S. anti-discrimination and anti-boycott laws and public policy, Unilever violated the Consent Decree and License Agreement it signed and unlawfully attempted to coerce AQP to violate laws both parties agreed to obey.” Read the rebuttal brief. Media coverage: Algemeiner, Jerusalem Post, Jewish Press, Washington Free Beacon LDB Urges Georgetown University President to Condemn anti-Semitic Rhetoric In advance of a speech on campus by notorious anti-Semite Mohammed El-Kurd, LDB urged Georgetown University to promptly and forcefully condemn any anti-Semitic speech, should El-Kurd repeat the hateful rhetoric he used recently on other campuses.. “The University should use its own voice to clearly and unequivocally condemn anti-Semitic speech that runs counter to the University’s values of inclusivity…and that threatens to create a hostile environment for Jewish students on campus.” Read more about LDB’s letter in The Algemeiner. LDB Joins Coalition Urging Universities to Withdraw MESA Membership LDB joined AMCHA Initiative, Academic Engagement Network and Scholars for Peace in the Middle East in urging a dozen U.S. universities to withdraw institutional membership from the Middle East Studies Association (MESA) after the organization endorsed an academic boycott of Israel. Failure to do so, the groups charge, would violate the intent and spirit of the Title VI funding that these universities receive from the U.S. Department of Education. “University leaders who are committed to the principles of Diversity, Equity, and Inclusion should, as a first step, withdraw from any organization that embraces anti-Semitic or racist principles,” declared Kenneth Marcus, LDB founder and chair. “This includes, at a minimum, organizations that adopt anti-Semitic Boycott, Divestment, and Sanctions movement policies or practices. This would be an important step for any university, but it is doubly important for any institution that accepts federal funds under Title VI.” Brandeis Center Urges Federal Court to Reverse Decision on Texas anti-Israel Boycott Law The Brandeis Center, joined by Hadassah, filed an amicus brief in a federal court of appeals, urging the Court to reverse a lower court’s decision that misinterpreted Texas’ anti-Israel boycott law by ruling that it violated a Palestinian contractor’s First Amendment rights. The Brandeis Center’s legal brief argues that Texas’ anti-BDS law targets discriminatory conduct, not speech, and discrimination is not protected by the First Amendment. LDB further points out that the judge failed to recognize longstanding precedent upholding the constitutionality of laws that prevent government employees and contractors from discriminating. As the brief states, “This Israel-exception to the States’ established authority to set conditions for government contracts has no basis in the law.” Read the amicus brief JNS coverage University of Illinois-Chicago Law Partners with LDB to Establish Law Student Chapter The Brandeis Center has partnered with the UIC Decalogue Society to establish a Brandeis Center law student chapter at the University of Illinois-Chicago Law. “We are excited to announce that we have created a committee within UIC Law Decalogue as a part of The Louis D. Brandeis Center for Human Rights Under Law,” proclaimed UIC Decalogue Society President Benjamin Blekhman. “We are thrilled to be partnered with such an outstanding organization and are grateful to have the opportunity to work together. As we move forward together, it will be with strong leadership, new ideas, and continued resolve to advocate for our community.” The Brandeis Center’s network of law student chapters at law schools across the country aims to foster a new generation of lawyers committed to advancing LDB’s work to promote Jewish civil rights and combat anti-Semitism on campus. Former U.S. Special Envoy to Monitor and Combat Anti-Semitism Cites LDB’s Survey on Campus anti-Semitism Former U.S. Special Envoy to Monitor and Combat anti-Semitism, Elan Carr, relied on the results of LDB’s groundbreaking survey of openly Jewish college students to demonstrate why the newly confirmed anti-Semitism Envoy should expand her portfolio to focus on combatting the rise in domestic anti-Semitism. Kenneth Marcus in Newsweek: Subway Shooter ‘Anti-Semitic Worldview’ Similar to Colleyville Attack Following a horrific shooting attack last month on a New York subway train that injured dozens, LDB Chairman Kenneth L. Marcus wrote about a central issue largely ignored by mainstream media coverage of the incident: the shooting suspect’s anti-Semitic ideology and the culture of hate that fomented it. As Marcus explained, the suspect was motivated by different forms of anti-Semitism that are increasingly prevalent in today’s society: “erasive anti-Semitism,” which denies the right of Jews to define their own identity, and “secondary anti-Semitism,” which blames Jews for others’ misfortunes. Speaking Engagements by LDB President and Chair Brandeis Center President Alyza Lewin and Chairman Kenneth Marcus were featured speakers at several webinars last month. LDB President Alyza Lewin spoke with Mosaic editor Jonathan Silver on ‘Talking to Your Children About Israel’ as part of the TIKVAH Fund’s Jewish Parents Forum. Lewin also addressed the CUNY Alliance for Inclusion on the topic of ‘Combating Anti-Semitism on College Campuses’ LDB Chairman, Kenneth Marcus, spoke about ‘Defining Anti-Semitism and Why It Matters: An In-Depth Exploration’ at an event hosted by DePaul College of Law’s Center for Jewish Law & Judaic Studies College newspaper issues ‘disgraceful’ apology for publishing piece condemning anti-Semitism Kenneth L. Marcus called out the “disgraceful” letter issued by University of Chicago newspaper Chicago Maroon, which apologized for publishing a student op-ed condemning anti-Semitism by SJP. The Maroon later withdrew the op-ed. Speaking to Campus Reform magazine, Marcus opined about how the incident was reminiscent of the “embarrassing” situation at Rutgers where students “shamed officials into abandoning their moral compasses.” He continued: “One should never apologize for taking a stand against anti-Semitism or racism. What requires an apology is the editors’ decision to apologize for doing the right thing and to undermine those students who continue to do so.” New and Recommended Reading LDB scholar in residence, Diane Kunz, suggests two readings for those interested in learning more about anti-Semitism and Israel. An article by David Hirsh and former Brandeis intern Hilary Miller “Durban Antizionism: Its Sources, Its Impact, and Its Relation to Older Anti-Jewish Ideologies,” explores how the 2001 Durban Conference against racism became a platform for anti-Jewish hate and set the stage for today’s anti-Zionism. Kunz’s second recommendation, Israel’s Moment: International Support for and Opposition to Establishing the Jewish State, 1945-1949 by Jeffrey Herf, provides an account of the creation of the State of Israel and debunks much of the conventional wisdom about Israel’s founding. LDB Intern Davis Allen Covers IHRA in Iowa and Kansas; Receives Awards for Work in Holocaust and Genocide Studies In a blog post this month, LDB intern Davis Allen covered Iowa and Kansas laws making them the 23rd and 24th states to adopt the IHRA Working Definition of anti-Semitism. Iowa’s law is significant for how it codifies that the IHRA Definition should be used to assess the motivation behind illegal discriminatory conduct.Allen received two awards this semester for his work on Holocaust and Genocide Studies. The awards recognize his outstanding research and commitment to work in the field. His award-winning work has been featured so far in three conferences this academic year. Brandeis Center Welcomes First Director of Communications Reflecting the Brandeis Center’s rapid growth, the organization hired its first director of communications, Scott Piro, earlier this year. With decades of experience in public relations and corporate storytelling, Piro will focus on external communications to amplify LDB’s work and messaging with existing and even broader audiences, including the Brandeis Brief, LDB’s social media accounts and donor relations, and LDB’s website redesign and launch. Piro will also oversee LDB’s undergraduate communications and development internship program. “I’m overjoyed to join the Brandeis Center,” Piro shared. “Among all the vital activity fighting anti-Semitism by committed organizations, the Brandeis Center stands out for its ‘boots on the ground’ level of positive impact on Jewish college students’ lives. I have been waiting my whole life to share in this kind of impact.” Apply today for a JIGSAW Fellowship for the 2022-23 academic year We are currently accepting applications for our JIGSAW law school fellowship program for the 2022-23 academic year. LDB’s JIGSAW – Justice Initiative Guiding Student Activists Worldwide – fellows are a select group of law students, trained by Brandeis Center lawyers, to empower and assist undergraduates in combating anti-Semitism on campus. Interested candidates should send a cover letter, resume, transcript and writing sample to: info@brandeiscenter.com with the subject heading “JIGSAW Fellow Application.” Find out more on our website. Sign up for our monthly Brandeis Brief and other messages from us Forward this email to a friend Donate to the Brandeis Center The Louis D. Brandeis Center 1717 Pennsylvania Avenue, NW, Suite 1025, Washington, DC 20006You can update your preferences or unsubscribe from this list. The Louis D. Brandeis Center is a nonprofit organization supported by individuals, groups and foundations that share our concern about Jewish college students. Contributions are tax-exempt under section 501(c)(3) of the Internal Revenue Code. To support our efforts to combat campus anti-Semitism, please contact us at info@brandeiscenter.com
Washington Times ~ By Kenneth L. Marcus – – Monday, May 9, 2022 ~ Federal courts shouldn’t force Texas to subsidize discrimination OPINION: Must Texas taxpayers subsidize antisemitism? Strangely enough, a federal district court required them to do so. Days ago the federal court of appeals began reviewing the legality of the lower court’s decision. In A&R Engineering and Testing v. City of Houston, a federal trial court blocked enforcement of the Texas law that bans anti-Israel boycotters from state contracts during the duration of their boycotts. If allowed to stand, Texas would be compelled to contract with and subsidize parties who discriminate. The Texas anti-boycott statute provides that state governmental agencies may not contract with a company for goods or services unless the company verifies that it does not boycott Israel and will not boycott Israel during the term of the contract. State contractors must certify that they will refrain from this conduct. It is well-settled that states may prevent state funds from being used to pay for discriminatory conduct. The district court refused to apply this basic principle to Texas’s anti-boycott law. The result is that Texas taxpayers must now pay for conduct that the people of Texas, through their elected representatives, have commendably sought to limit. Texas is not legally required to subsidize any other form of discrimination. There is no justification for a rule that applies differently to antisemitism than to other forms of hate. The Texas statute is consistent with the legislature’s prior decisions to prevent public funds from subsidizing other forms of evil. The statute’s legislative sponsor explained, “State law currently restricts investment in Iran and Sudan to prevent public funds from going to organizations that support terrorism or genocide. Similar legislation is needed to prevent Texas’s taxpayer resources from supporting businesses engaged in discriminatory trade practices against Israel. In this case, Texas does not stand alone. Thirty-two other states have enacted similar laws. Twenty-two of these states require contractors to certify their compliance. Such rules are commonplace. Governments at all levels routinely impose similar conditions. Many such laws require contractors to refrain from discrimination based on national origin, race, religion or other grounds. These rules are a pillar of anti-discrimination law. The long history of anti-Jewish discrimination — including the recent attack on a Colleyville, Texas, synagogue — demonstrates the Texas legislature’s wisdom. There is nothing new about the use of boycotts to attack Jews. Boycott campaigns have provided a conduit for antisemitism since at least the 18th century. In the 20th century, Nazi encouragement led to a resurgence of anti-Jewish boycotts. In Germany, the Nazi regime’s first nationwide action against Jews was a boycott. Post-World War II boycotts have formally targeted the State of Israel, but they have been closely associated with this history of general boycotts against Jews. The pre Nazi, Nazi, Arab League and modern Boycott, Divestment and Sanctions boycotts all seek to deny Jewish legitimacy or normalcy as punishment for supposed Jewish transgressions. The modern BDS campaign is antisemitic, just as its predecessors were, because some of its proponents act out of conscious hostility to the Jewish people; others act from unconscious or tacit disdain for Jews; and still others operate out of a climate of opinion that contains elements that are hostile to Jews and serve as the conduits through whom anti-Jewish tropes and memes are communicated; while all of them work to sustain a movement that attacks the commitment to Israel that is central to the identity of the Jewish people as a whole. The anti-boycott law was deliberately drafted in a way that would protect speech while reducing bias. Discriminatory boycotts are not protected by the First Amendment, because they are not speech. The Texas anti-boycott statute preserves the freedom of speech by requiring only that state contractors refrain from discriminatory conduct. Crucially, the statute does not limit speech in support of a boycott. Rather, it permits contractors to speak out against Israel anywhere and anytime they choose. If they wish to go beyond speech and engage in discriminatory conduct, they remain free to do so. They just may not do so at Texas taxpayers’ expense. In a just world, the state of Texas would receive universal applause for its decision to protect taxpayers from having their hard-earned money used to support discriminatory activity. Instead, the state was hit with a lawsuit. Worse, the trial court bought the absurd argument that the First Amendment requires Texas to support the antisemitic anti-Israel boycott movement. The court of appeals should reverse the ill-considered trial court decision. To do otherwise would create an Israel exception to the anti-discrimination law. Texas should remain free to decide who gets to compete for its contractors. If the legislature doesn’t want to pay for bigotry, the federal courts should not force them to do so. • Kenneth L. Marcus is founder and chair of the Louis D. Brandeis Center for Human Rights Under Law and author of “The Definition of Anti-Semitism.” He served as the 11th assistant U.S. secretary of Education for Civil Rights.