Assorted Thoughts on the Chemerinsky Incident

If you're in my neck of the internet woods, you've no doubt heard about the incident in Berkeley where a small group of students conducted a pro-Palestinian protest in the backyard of the Dean Erwin Chemerinsky's house. 

To make a long story short, Dean Chemerinsky had invited the 3L class over to his home to celebrate their impending graduation (he normally invites the 1L class at the start of their law school journey, but since this crop of graduating students spent their 1L year mid-pandemic and so wasn't able to come, he invited them before graduation instead). The local SJP chapter issued a demand that Chemerinsky cancel the dinner, distributing a poster showing a caricatured image of the Dean with a bloody knife and fork over the message "No dinner with Zionist Chem while Gaza starves." Chemerinsky refused to cancel the dinner; so some of the students RSVP'd and, once they arrived at his home and were welcomed into his backyard, stood up with a microphone and began delivering a speech about Gaza. Chemerinsky and his wife (Prof. Catherine Fisk) asked that they stop and leave, as guests in their home; the student with the microphone initially declined, asserting she had a "First Amendment right" to engage in her conduct. At one point, Prof. Fisk placed her hand over the shoulder of the student to try and take her microphone away (the student has characterized this as an assault -- even going so far to imply it was a sexual assault -- and has indicated she wants to file legal action against the law school). Eventually the students left, the Dean released a statement, and the internet was set ablaze.

From my vantage point, the students' behavior was abhorrent and very possibly a violation of the university's code of conduct (and the notion that they are the victims here is farcical). Beyond that bottom line, my emotional reaction to this story has been stronger than I might have anticipated, and it's worth talking through why. I do have a Berkeley connection, and though I've never met Chemerinsky personally, his reputation for both kindness and brilliance is unrivaled in the academy. I also have former students currently at Berkeley Law, and while I cannot imagine they participated in this fiasco, I would be disappointed and crushed if I found out otherwise.

On a more personal level, I suspect my views on Israel are quite similar to Chemerinsky (two-stater, sharply anti-Bibi but pro-Israel existing), and I also have been known to host students at my house for dinner (typically my small-group seminar students at the end of the semester). I view the dinners as a nice way to cultivate an environment of care and welcoming in the often-impersonal environs of the law school, and as a way of paying forward the sort of collegiate community I was lucky enough to enjoy as an undergraduate to another generation of students. If that gesture of welcoming students into my home were to be exploited in a manner akin to what the students did here, I'd be devastated. Protests like this are exploitations of trust, they rely on and take advantage of the host's unguarded openness and welcoming. We're not screening people based on ideology, we're not making people fill out political questionnaires, we just -- welcome students into our homes, without reservation. To take advantage of that, to extract costs on that openness, invariably leads to more closedness, more guardedness, and more cloisteredness -- a loss for everyone, and one that can and should be mourned (I saw someone argue on social media that if the Dean didn't want to be protested in his own backyard, he shouldn't have invited these students in the first place and instead tried to screen out whichever students he thought might be likely to protest him. That to me bespeaks an almost impossibly short-sighted and narrow attitude that is utterly toxic to the sort of university community anybody should want to cultivate).

Meanwhile, there's the question of "why was Chemerinsky picked for this protest?" That question has two related dimensions: why Chemerinsky, and why this protest (since virtually everyone seems to think that something as extreme as protesting in your host's own household should be reserved only for the most malign and irredeemable actors). Chemerinsky very much views himself as being targeted as a Jew, citing the bloody fork caricature and its resonance with the classically antisemitic blood libel. The immediate demand of the protesters is for Berkeley to divest from Israel; but the law school dean doesn't make investment/divestment decisions, so they're limply left arguing that Chemerinsky doesn't personally support divestment -- true, but a feature he shares with thousands of other members of the Berkeley community who also don't make investment decisions on behalf of the university. He also has beliefs on Israel that, while anathemas to the SJP crowd insofar as he rejects Israel being wiped off the map, are by no means some sort of Israeli maximalist/anti-Palestinian eliminationism and are entirely mainstream amongst both liberals and Jews (and are again widely present in the Berkeley community and beyond). Again, even if one opposes that stance, there is (or should be) a gap between "what we oppose" and "what we deem protest-worthy", and even among those who are protest-worthy, there is (or should be) differentiation as to when and where a protest is justified.

The most specific thing I've seen people point to in justification of "why Chemerinsky" is an editorial he wrote this past October -- just a few weeks after 10/7 -- recounting the antisemitism he's experienced as a Jew at Berkeley in the wake of the Hamas attack. The usual suspects make the usual claims in response: that Chemerinsky's claims about antisemitism are wrong, unfair, smears, conflations of anti-Zionism and antisemitism, and those sins justify what might otherwise seem an obviously abusive overreach of a protest. On that point, one thing I haven't seen commented on much is the deep and dangerous chilling effect this sort of position has (and is intended to have) on Jewish faculty speaking on the subject of antisemitism. I've written on this in the context of academic freedom, but there is a very significant contingent in American and global society who deeply believe that if you are a Jew and you speak on antisemitism in a way that they don't approve of, it is open season -- you have removed yourself from any and all protections (certainly norm-based, possibly law-based) one might enjoy in a liberal, tolerant society. Needless to say, as a Jew whose academic work centers in large part on antisemitism, this is a tremendously dangerous trend for me personally, and so of course I notice when it rears its head in such an explicit fashion.

Those are the more personal reflections I have. But there are a few more scattered issues I've seen that I might as well address here as well.

• One area where I think the internet breaks our brains is how it interferes with our sense of proportion -- literally, in terms of "how many people are doing/believe in this thing we're upset out, compared to how many don't." The protesters appeared to number about ten students. That's not negligible, but it's also a very small percentage of Berkeley Law's total enrollment. Online, the consensus view from what I'm seeing is pretty strongly that the protesters were out of line here -- and while my internet circles are of course not perfectly representative, my read has been that one has to go pretty far out towards the fringes and randos before one starts seeing folks defending what the students did. But the thing is, even if the breakdown is, say, 80/20 against the protesters, if I'm reading one hundred posts about this event, that means I'm reading twenty people announce they support it. That feels like a lot, even though objectively an 80/20 split is actually extremely lop-sided!

• The students' claim that her conduct was First Amendment protected is ludicrous save for the sheer moxie of lecturing Erwin Chemerinsky on First Amendment doctrine in his own house. One issue some people have flagged is this dinner being an "official" Berkeley Law event, and asking whether that changes thing insofar as Berkeley Law is of course bound by the First Amendment. But there's less here than meets the eye, because even if we view this as a "government" event, not all government events or property are public forums. Even on the Berkeley campus, areas like the administrative back offices or the classroom when classes are in session are not public forums (hence why a professor could remove a heckler from her classroom without it being a First Amendment violation even where that same speech would be protected from sanction on the campus quad). A professor's personal domicile is, if anything, a clearer case -- if public forum analysis applies at all, it is clearly a non-public forum and so the student's protest is not First Amendment protected once she is asked to leave.

• Many people have criticized the protest against Chemerinsky in terms of it being "counterproductive". Who is this supposed to persuade? Don't they realize the protesters are the ones who look bad here? Antisemitism discredits the cause! I understand where this sentiment comes from, but I think it is at least partially misguided. First of all, whether it's "counterproductive" depends on what it's trying to produce. If the immediate goal is sympathy from either Chemerinsky himself or even the public at large, maybe it's ineffective. But if the goal is just "make an enemy miserable", then it may be perfectly effective. Second, there are many theories of protest whose model of change does not depend on the protest immediately swaying popular opinion in their favor. Without overstating comparisons to disanalogous contemporary events, we should all at this point understand how a shocking breach of basic social rules and norms can, even where it's immediately the subject of revulsion, generate a series of events that may ultimately redound to the violator's benefit. Ultimately, while it may be that this protest is counterproductive (though again, that depends on what one is trying to produce), I think the immediate declaration of counterproductivity, insofar as it is paired with a more moralistic condemnation of this sort of protest, is a means of eliding a more worrisome possibility: what if morally-contemptible norms violations are in fact quite productive means for certain social groups to achieve their goals? I've said it before and I'll say it again: antisemitism is a productive ideology. It builds things, engenders alliances, and motivates action. And so opposition to antisemitism, or other norm-violative behaviors, must be willing to oppose such actions even when they're productive -- because they often are.

• Joe Patrice at Above the Law makes clear that he thinks this sort of protest is unjustified, but mentions in passing the "authoritarian" free speech position coming out of the right whereby it is a "free speech violation" if, say, a social media platform blocks or bans you. In many ways, the incident at Chemerinsky's house is the meatspace version of this: Chemerinsky is literally hosting, and a speaker is claiming a First Amendment entitlement to retain access to Chemerinsky's space in defiance of the wishes of the host. It's a bad First Amendment argument as applied to Twitter, and it's a worse First Amendment argument as applied to someone's backyard.

• I'm certainly not the first person to say this, but part of civil disobedience is accepting consequences. While it's true that a good protest will often be disruptive and a breach of the normal rules of operation, it's also the case that the reason a protest is disruptive and a breach is that it violates normal, enforceable rules. To engage in that sort of breach, but then to act scandalized that the relevant authorities treat it as a breach, is to have one's cake and eat it too. And so I get someone feeling strong enough about a particular issue to say "it's worth it to me to violate this rule and face these consequences." I do not get -- or at least don't respect -- someone simultaneously expecting plaudits for being so bold as to defy the rules and demanding exemption from having those rules enforced.

• Finally, I'm increasingly tired of the way these sorts of student protesters weaponize their status to act as if it's unreasonable to hold them to basic norms of conduct, or some sort of authoritarian imposition to subject them to consequences that can be wholly anticipated. It's true that, as we age, it's easy for professors to forget that young students are young and are still learning, and are going to make some foolish choices and say some foolish things because they haven't learned better yet. But it's also the case that as we age and our students seem ever-younger relative to us, we can also forget that the students are in fact adults and are perfectly capable of understanding how to behave as well as eminently-predictable consequences of their actions. I am not someone who thinks student discipline has to be overly punitive, and I respect that student conduct officials often find themselves in difficult spots. But unlike other recent Berkeley events, here we know who the perpetrators are; there does not seem to be much reason for why a conduct investigation shouldn't be opened here other than the administration either not wanting to or being scared to. Formal disciplinary responses are not always the first resort or the best resort, but they are a valid resort, particularly in cases where student behavior seems to be at least partially encouraged by a culture where the very idea of facing consequences for breaking rules is viewed as a form of oppression. There are people who basically immediately say student conduct violation related to speech warrants expulsion and anything short of expulsion tacitly assents to the violation. I don't agree with that, but I also don't agree with the view that every student conduct violation should be assessed solely as a "learning experience". Law and graduate students, in particular, are not smol, they are adults, and adults on the precipice of exercising significant political and social authority -- and part of entering into that latter role is accepting their status as responsible actors who can be held responsible.

Jewish Protests at Berkeley, a Follow Up and Victory Lap

UC-Berkeley Political Science professor Ron Hassner has ended his sleep-in protest, stating that the university administration has agreed to all of his requests. In particular he flagged the following:

(1) First, he asked that "all students, even the ones wearing Stars of David, should be free to pass through [Sather Gate] unobstructed. The right of protestors to express their views must be defended. It does not extend to blocking or threatening fellow students." The university has since "posted observers from the Division of Student Affairs to monitor bullying at the gate. These are not the passive yellow-vested security personnel who have stood around Sproul in prior weeks. The Student Affairs representatives are there to actively document bullying, abuse, blocking, or intrusion on personal space."

(2) The second request was for the Chancellor to "'uphold this university’s venerable free speech tradition' by inviting back any speaker whose talk has been interrupted or canceled. The chancellor did so gladly and confidently. The speaker who was attacked by a violent mob three weeks ago spoke to an even larger crowd this Monday."

(3) The third request was to fund and implement "mandatory Islamophobia and anti-Semitism training on campus". This has also apparently been arranged.

I give Ron a lot of credit. First, he's not dunking on the administration here, in fact, he gives them a lot of credit: "It is my belief that campus leaders would have fulfilled all these requests of their own accord even in the absence of my sleep-in.... At best, our sleep-in reinforced the university’s determination to act and accelerated the process somewhat."

Second, it's important to emphasize that Ron's protest did not ask or come close to asking that Berkeley silence anyone else's speech, including that of the protesters at Sather Gate. While they should not be able to obstruct Jewish students seeking to travel to campus, they have the right to present their views as well as anyone. It is not a concession but an acknowledgment of the proper role of the university administration that he did not press for them to end the protests outright.

Third, one might notice that Hassner's last demand was for antisemitism and Islamophobia training to be implemented on campus. In recent years, it has become almost cliched to hear certain putative anti-antisemitism warriors express fury whenever the fight against antisemitism is paired with the fight against Islamophobia, racism, or other forms of bigotry. They call it "All Lives Mattering" (although, when these coalitions against hate form and antisemitism isn't included in the collective, they call it "Jews Don't Count"). I've long thought that this was an abuse of the "All Lives Matter" concept, and it is notable that Hassner -- who not only has a ground-level perspective but who is actually putting his money where his mouth is in terms of combatting antisemitism -- doesn't see the pairing as a distraction or diminishment of what he's been fighting for but as an asset. More people could stand to take note.

Jewish Protests at Berkeley

I wrote a few days back about goings-on at Berkeley regarding protests -- which turned destructive -- against an Israeli speaker and a general deterioration of the situation for Berkeley's Jewish community. A few other developments have occurred since then, both of which entail Jews becoming the protesters, rather than the protested.

First, my friend and former colleague Ron Hassner has begun a sit-in in his own office, refusing to leave until the Berkeley administration takes action regarding a series of demands he's made regarding how to address campus antisemitism. Second, a large group of Berkeley Jewish students marched on Sather Gate, where a different group of pro-Palestinian students had been blocking passage as part of their own protest (and reportedly have been haranguing Jewish students in the vicinity). Initially, the plan appeared to be to force a confrontation by attempting to pass through the gate; in the end, the Jewish marchers diverted around the gate, wading across a small creek before reemerging on the other side.

I've given a recap before of my own experience at Berkeley, but that was from several years ago and certainly times and circumstances have changed since then. So I won't comment on the actual state of affairs for Jews on campus -- I'm not on the ground, and people like Hassner are. I do think this is an interesting example of Jews adopting what I termed a "protest politic" -- seeking change via the medium of a protest (as opposed to, say, a board resolution, letter to the editor, or political hearings). I wrote in that post that while I personally am averse to protests (not on general political or tactical grounds; it's a temperamental preference), it does seem that acting via protest -- sit-ins, marches, or even disruption -- was a way of marking yourself as being of a particular political class on campus and so a way of being taken seriously.

At least on campuses, it seems that certain brands of protest have become the language through which communities communicate that they are part of the circle of progressive concern. We can identify an issue as a "progressive" one by reference to how its advocates perform their demands -- the medium rather than the message. If something is demanded through a sit-in or a march, that's an issue that's in the progressive pantheon. Something that is pressed through a Board of Trustees resolution, not so much.

Again, I don't comment on whether these protests are "good", either in their tactical efficacy or their underlying demands. But I do find the adoption of this particular medium, and its comparatively transgressive character, to be an interesting development, and so I wanted to flag it.

Berkeley Has a Tough Task Ahead of It

I just finished a draft article (now before law reviews!) entitled "They Managed a Protest: Prohibitory, Ethical, and Prudential Policing of Academic Speech." As the name implies, it addresses recent controversies regarding free speech on campus, though the framing device is the Kyle Duncan incident at Stanford Law which these days feels almost quaint. In any event, one of my main objectives in the paper is to explore the position of the university administrators -- often untenured -- who are tasked with enforcing free speech policies in the context of campus protests. They occupy difficult positions, not the least because many external observers think their position is easy -- just severely punish disruptive protesters and call it day. What could be simpler than that?

Of course, things aren't as simple as that, even in the seemingly clearest cases. Earlier this week, a group of protesters organized by the "Bears for Palestine" student organization managed to violently shut down a scheduled talk by a right-wing Israeli speaker at UC-Berkeley. Protesters smashed windows and the door of the building where the talk was scheduled to occur, and allegedly assaulted and slurred Jewish students trying to attend the event.

There's little question that this behavior violated UC-Berkeley policy and, probably, state law. The UC-Berkeley Chancellor, Carol Christ, has written a strong statement denouncing these actions. And for my part, as much as I respect the right of students to engage in protest, the allegations of what happened in this event are such that severe punishment -- including potentially suspensions or expulsions -- would seem to be warranted for at least the most serious offenders. To that extent, this is a simple case.

Even still, though, I do not envy the Student Affairs officials* who are tasked with operationalizing that simple case into actual disciplinary action.

To begin, it is abundantly clear that Berkeley is under immense pressure to significantly punish someone. If at the end of their process nobody gets more than a slap on the wrist for violations of this magnitude, they will be accused of turning a blind eye to this sort of behavior, or even tacitly sanctioning it. It needs, at the end of this, to put a few heads on pikes.

But to that end, while I suspect that Berkeley will be able to identify many of the students present at the protest, it likely will not be easy to figure who exactly is responsible for the more egregious acts that would justify the harshest punishment (the antisemitic slurs, the destruction of university property). Many protesters wore masks, and the group itself was comprised of students and non-students. 

So what is the university to do? It could adopt a policy wherein it just throws the book at everyone -- "expel 'em all and let God sort it out." But that sort of short-circuiting of normal due process protections will generate intense backlash and possibly make them vulnerable to a lawsuit. Breaking windows, smashing doors; these are violations of university speech policies. But -- depending on what went down at the event -- being in the vicinity of those actions, without participating in them, may not be. It's the difference between attending Trump's "Stop the Steal" rally versus actually breaching the Capitol. One might not think the former are good people, but they haven't done anything illegal.

In short, there are severe cross-cutting pressures at play here that make reaching even the "simple" right outcome harder than it appears. Those pressures are amplified by the very loud voices on both ends of the spectrum, some of whom will insist that nothing short of a complete extirpation of all pro-Palestinian advocacy on campus means capitulation, others of whom will fulminate that any consequence to any righteous protester on any ground is tantamount to jackbooted censorial thuggery. While we can perhaps justly demand that Student Affairs professionals ignore those voices (easier said than done), their presence, too, complicates significantly the more legitimate problems the office will face in its quest to come to a good decision.

* Disclosure: My wife works in the UC-Berkeley Student Affairs Division, albeit not in a role that has anything to do with meting out student discipline.

What the UAW's New Leadership Means for Campus BDS

The United Auto Workers (UAW), fresh off their huge contract win with the "Big Three" automakers following their strike, have joined a petition calling for a ceasefire in Gaza (the petition also expressly calls for the immediate release of Israeli hostages). They are (I believe) the largest union to sign on to the statement as a full union (as opposed to via individual locals).

I think Spencer Ackerman might be a little ... optimistic (from his vantage) about what this augurs for the UAW going forward (h/t: LGM). Still, at one level, endorsing this petition is very much in line with the UAW's new, more aggressively progressive leadership. And at another level, I hardly expect the UAW to go full BDS or anything like that (as Ackerman notes, a pretty sizeable chunk of the UAW's workers are Trump-voting "economic nationalists", which may or may not put a brake on the union as a whole going too lefty on foreign policy or anything else). Ceasefire + return of the hostages is a far cry from the hyper-left politics many fantasize about the union vanguarding on Israel and Palestine.

But I'm just going to quickly flag a sideline here that's of interest to me. For obscure reasons, the UAW is the union that represents graduate students at the University of California (though strangely enough, people always gave me odd looks when I called myself "an autoworker"). My recollection from my time back at Berkeley is that the UAW national office intervened to put some brakes on BDS activity by the graduate student local when the latter got a little too frisky on the subject. But that was under the old regime. And again, while I don't expect the UAW as a whole to suddenly endorse BDS, it would not surprise me if the new leadership took a more laissez-faire attitude to what their locals did on the question -- including their grad student locals.

Just something to keep in mind.

UPDATE: For example, the Association for Legal Aid Attorneys (a union for public defenders), which is also under the UAW umbrella, just passed a resolution which not only call for an immediate ceasefire but also endorses full BDS and a Palestinian right of return while not mentioning the Israeli hostages at all (indeed, it only gives one very passing passive-voiced mention to "the violent tragedy on October 7, 2023").

It's Not (Always) About IHRA

The Cal student government just passed a resolution denouncing antisemitism. However, a handful of student Senators (I've seen different reports -- between five and nine) abstained from the vote, contending that the resolution "penalizes" senators by "forcing them" to approve a resolution that "equates supporting Palestine with being antisemitic."

When I hear language like that, I immediately assume that the problem is over utilization of the IHRA antisemitism definition -- a widely accepted tool for identifying antisemitism that has come under significant scrutiny and controversy for allegedly improperly targeting pro-Palestinian speech or action.

But here, the resolution doesn't mention IHRA. In fact, the resolution doesn't talk about Israel at all. None of the "whereas" clauses speak to antisemitic incidents related to Israel. None of the resolution parameters in any way speak about Israel or Zionism in any way whatsoever.

So given all of that, how is it that a cluster of students -- a minority, but not an insignificant one -- thinks that the resolution "equates supporting Palestine with being antisemitic"?

The apparent answer is that the resolution identifies a webpage created by Berkeley's Center for Jewish Studies as a resource students can use to find more about antisemitism. And that webpage, in turn, among its many links and resources, contains a video about antisemitism which contains a small segment trying to articulate when criticism of Israel becomes antisemitic. 

The video draws the line in relatively normal places (criticism of Israeli policies is fine, supporting a Palestinian state is fine, supporting Arab rights in Israel is fine; relying on classic antisemitic imagery is not fine; Nazi comparisons are not fine; opposing Israel's existence where one supports analogous forms of national autonomy groupings for other marginalized groups is not fine). But one needn't find the video sacrosanct to think that it represents a tremendously thin reed through which to say that this particular resolution "equates supporting Palestine with being antisemitic."

I think this reaction, though, illustrates something important. Much of the criticism of, for example, IHRA, styles itself as lawyerly or technical objections to IHRA's vagueness, or over- or under-inclusivity. I share many of those criticisms; I think IHRA has many problems. Yet I've been very hesitant to join in on the various "drop IHRA" campaigns. And the reason why is that the underlying social movement that drives these campaigns is not one predicated on technical or lawyerly objections. It is based on belief in a more fundamental claimed entitlement: the absolute right that no type of "anti-Israel" or "pro-Palestine" speech or conduct ever be deemed antisemitic, in any case or context. Any condemnation of antisemitism that doesn't promise plenary indulgence for anti-Israel activity will be deemed tantamount to "equating supporting Palestine with being antisemitic."

For this reason, I think that many of the more thoughtful anti-IHRA critics are deluding themselves if they think their compatriots' problem with IHRA really boils down to things like "there's no need for a more specific codified standard of antisemitism" or "it's too vague" or "it's applied overexpansively". All of those things may be true -- but one can take them all away and the core opposition would still remain in any case where claims of antisemitism are treated as conceptually plausible in a non-trivial number of cases relating to speech or conduct about Israel or Zionism.

The Berkeley resolution studiously -- perhaps too studiously -- avoided the issue of Israel. It passed, which was good. But the minority opposition's claims that even a resolution that anodyne was objectionable -- that it was tantamount equating any support for Palestine with antisemitism -- I think is revelatory about a sort of political positioning on antisemitism that cannot be dismissed as a bit player. For some people, it isn't about IHRA, nor about technical objections or more precise language. A lot of the push here is by people who will settle for nothing less than a blanket, preemptive exoneration of anything and everything that might be said or done to or about Jews, so long as it styles itself as "supporting Palestine." And it's going to be up to the good faith critics of IHRA et al to recognize the existence of that cadre and its non-triviality, and decide how to sever them from the ranks, because right now they're unfortunately driving a lot of the conversation forward in a fashion that -- if they have their way -- would essentially make any non-nugatory move against antisemitism impossible.

On the Vice of the Right of Exclusion

Inspired no doubt by recent news out of UC-Berkeley Law, Ken Stern published a column arguing that student groups have the right -- as destructive as it may be -- to exclude "Zionists" (and vice versa -- student groups also have the right to exclude anti-Zionists). It is not a good decision, it is not a noble decision, it is certainly a hurtful decision, but it is a decision that is within the right of a student groups to make.

Still, this was unsurprisingly a controversial take. I think it is right -- but with some very significant qualifiers.

On Twitter, Blake Flayton drew the analogy to arguing that "campus groups have a right to exclude Chinese students who want China to continue existing." It's not quite right -- the exclusion would be of any students who want China to continue existing, regardless of whether they are Chinese or not -- but it's close enough for our purposes to help clarify quite a bit.

Ideological groups have to have the right to set boundaries of inclusion -- the Student Dems can say "no Trumpists" and the Student MAGA club can say "no Democrats". How could it be otherwise? And once we accept that case, it's very, very hard to explain why other declarations of ideological necessity can be forbidden.

Moreover, these ideological exclusions are distinguishable from a status-based ban, even where the status is very closely tied to the belief. Yet noting that distinction, which may be the entire ballgame from a legalistic or rights-based perspective, in no way obviates or renders incorrect the feeling by the group that they're enduring discrimination. Chinese students are not unreasonable in viewing a rule that says "all members of a group must support the dissolution of China" as discriminatory; all the more so in the case of a group that seems to have little to do with China. Jews are entitled to view the same thing regarding compulsory anti-Zionism. The more such exclusions proliferate, the more they practically act to squeeze out Chinese or Jewish students from campus life. And these remain true notwithstanding the existence of dissident minority views within the group.

Perhaps the most common example we see regularly is a student group that does not say "no gays", but does demand all members affirm the ideology that homosexual conduct is an abomination or that marriage is solely between a man and a woman (one sees things like this regularly in campus Christian groups; Stern's analogy to the Hurley case where an Irish-American gay rights group was excluded from an "Irish Pride" parade is also well taken). These are conceptually distinct, even though gay individuals could and would clearly be justified in feeling targeted by the rule (and if all or nearly all campus groups imposed such a rule, it would represent a structural impediment to gay inclusion in campus life even as it operated in the space protected by the groups' free association rights). 

Put differently: "No Zionists" and "no gay rights apologists" are both conceptually distinct from "no Jews" and "no gays"; perhaps dispositively so, but to go further and say that the former rules are not even related to discrimination against Jews or gays, it's just a idiosyncratic coincidence that Jews and gays happen to be disproportionately excluded, is patronizing nonsense. The discrimination here is perhaps protected, but it isn't a "conflation" or a hypersensitivity for Jews or gays to view it as discrimination. And the more commonplace such exclusions are, the more they can be said to represent a structural inequity afflicting the relevant groups.

It is no revelation that individuals and groups can exercise their rights in harmful and destructive ways. The Berkeley student group which invited Milo to campus had the right to do so, and Milo himself has the right to express his deeply racist and misogynist views, we can and should view both as behaving badly for doing so.

So to say that student groups have the right to exclude Zionists does not mean they are right to do so. Indeed, they are behaving quite wrongly, and we should have no qualms in saying so. Something can be in the realm of rights and yet nonetheless be nasty, discriminatory, counterproductive, and antipathic to community building, and a "no Zionists" rule is all of these things even where it is an exercise of a student group's "rights". Rather than speaking in terms of rights, we should be speaking in terms of certain virtues that we wish to inculcate in our student communities -- virtues of open-mindedness, pluralism, and free inquiry. We have a right to narrow the boundaries of who we are willing to stand in community with, just as we have a right to only read newspapers and articles and twitter accounts of people who already agree with us. But neither choice is a virtuous choice, even if it cannot be articulated in the language of rights. That we cannot be compelled by principle to live out these values makes it more important, not less, that they be impressed as matters of moral virtue and vice.

For example, even Blake I imagine does not think that Students for Justice in Palestine has to admit Zionists, any more than Students Supporting Israel has to admit anti-Zionists. The trouble comes when we're not talking about SJP or SSI, but "Women of Cal" or "the Ice Cream Lovers of America Club" that decides excluding Zionists or anti-Zionists is core to the group's ideological mission. Conceptually speaking, there might not be a way of distinguishing these cases so as to be able to craft a rule that says "SJP and SSI can exclude while Woman of Cal and the ICLAC cannot". As a matter of practical moral logic, these cases are obviously distinctive, and the more the exclusions migrate into the latter type of case, the more toxic they are to the aforementioned virtues of open-mindedness and pluralism.

Does this mean that rules such as this can never be legally discriminatory? No. The example Blake used, where the rule is specifically applied only to Jewish (or Chinese) students, would be an obvious example. More subtle would be circumstances where the rule is nominally applicable to all, but is enforced with greater care or scrutiny against Jews than others. Everyone supposedly has to be anti-Zionist, but Jews have to prove they're anti-Zionist. That heightened scrutinization should be seen as a form of discrimination as well, and one that is very much associated with "rules" such as this.

Yet on the whole, I think the focus on "rights" is misleading here. We would be better off concentrating on the virtues and vices of how student groups should behave, rather than on what they have the right to do. And in the exercise of their rights, these student groups are behaving poorly. They are not embodying the virtues we hope to inculcate in young minds regarding how they handle issues of pluralism and disagreement. In practice, their actions function to discriminate against Jews, even if it is in a manner that must be legally protected. There is the same right to exclude Zionists as there is the right to exclude proponents of gay rights; and we should view the decision to exercise one's right in that way as vicious in the same way.

Breaking: UC-Berkeley Students Protest Against Allowing Israeli Politician To Speak on Campus

A petition -- launched by a UC-Berkeley student organization, and now with ~8000 signatures -- demands that the UC-Berkeley admin "take action" to prevent a former member of the Israeli Knesset from delivering a presentation on campus. 

While purporting to "fully support freedom of speech," the activists contend that "we stand against hateful indoctrination and explicit lies being sold to an audience at an academically sponsored event." Hence, the petition demands that the faculty member who invited the speaker be "held accountable", insisting that campus officials must take "immediate administrative action" against him and to ensure that the Israeli speaker is not given "an academic platform to spew her propaganda". "If no action is taken immediately," the petition states ominously, "we will have proof that our university does not care about its academic, intellectual, and moral standards."

Of course, such protests against permitting Israelis to speak on campuses like Berkeley perhaps does not surprise certain readers, who have heard tale of an emergent campus culture of censorial illiberalism, perhaps particularly when it comes to Israel and Israelis.

But I do wonder how many of those unsurprised readers might be a little surprised to learn that the Israeli politician in question is Haneen Zoabi,* and the student group seeking to bar her from campus is (the right-wing pro-Israel group) Tikvah. Apparently, the movement to obstruct engagement with (certain) Israeli perspectives runs deeper than we thought!

* I am, needless to say, no fan of Zoabi, and I am likewise no fan of the faculty member who invited her to campus or his assessments of who is and isn't a useful contributor to academic discourse. But my belief in academic freedom as ensuring an unqualified right for campus community members to host and engage with speakers of their choosing, free from any de jure or administrative sanction, is not tied to my personal agreement or disagreement with any given speaker. I am not an especial fan of Nir Barkat either, but I understood the attempts to shut down his talk at San Francisco State for what they were. And, to the extent the claim is that Zoabi's talk is not balanced by other academic offerings at UC-Berkeley that provide a different vantage point on Israel, that is flatly spurious -- Berkeley has one of the largest and most vibrant Israel Studies programs in the country, recently supplemented by a $10 million gift, and offers a wealth of stellar programming -- from talks to courses to study-abroad programs -- on Israel-related issues from a variety of perspectives.

(For the record, this petition is from a few years back -- I thought it looked familiar! -- but it nonetheless is illustrative of how the wheel turns on these sorts of things).

It Wasn't a Bomb Roundup

Unbelievably, this package -- which randomly arrived at the offices of The Jewish Daily Forward for me (I do not work at the Forward, for the record) -- didn't contain a bomb. The truth was actually weirder -- it was (eight copies of) a pamphlet on Jews, marijuana, and prostitution, given to "strengthin [sic] you and your friends."

What a weird world we live in sometimes.

* * *

The Tarrant County, Texas GOP prepares to vote on whether to remove a party official for that most heinous crime of ... being Muslim. Tarrant County is not some tiny speck -- it's where Fort Worth is.

Two Black men have turned up dead in the house of a prominent California Democratic Party donor -- another man who was hired to do drugs and sexual activity shares his story.

Carly Pildis has an insightful column on how to tighten synagogue security while recognizing that a police presence won't necessarily make all congregants feel safe (picking up on a conversation Bentley Addison helped start last November).

Tema Smith has a good essay in the Forward on the history of Jewish Whiteness in America.

Andrew Silow-Carroll does an excellent job parsing the issue of Rep. Rashida Tlaib's "dual loyalty" insinuation from a few days ago.

An ADL staffer reports on a recent interfaith trip he organized with African-American pastors to Israel and the Palestinian territories. Though I think the term "Third Narrative" has already been taken.

The Chronicle of Higher Education reports on the outcome of a significant sexual harassment investigation involving a Michigan State political scientist (though -- lawyer's tic -- the article is incorrect to say that the "preponderance of the evidence" standard used in the investigation wouldn't be used in court. "Preponderance of the evidence" is the normal standard used in non-criminal judicial proceeding).

Senator Kamala Harris comes out in favor of legalizing marijuana and expunging the convictions of non-violent offenders.

And, to complete the "not a bomb" circuit, a Berkeley man was arrested after leaving a fake bomb laced with antisemitic slurs on the UC-Berkeley campus

End of the Year Roundup

I know what you're thinking: It's not the "end of the year". The end of the year was almost a week ago!

But Blogger thinks you're wrong. If you look at the right-hand column of archived posts, it counts anything written from the week of December 30 through January 6 as being written in 2018.

And there's more: In both 2016 and 2017, I apparently wrote exactly 229 post. This post? This one right here? This should be post number ... 230.

That's right: an overtime victory for 2018's productivity.

* * *

Israel has officially announced it will seek $250 billion dollars in compensation from other Middle Eastern countries who expelled their Jewish populations in the wake of Israel's independence.

Good to see D.C. statehood get more traction in the House.

Five Jewish teenagers were arrested on suspicion of involvement in the stone-throwing death of a Palestinian woman. Cases of Jewish terrorism targeting Palestinians tripled in 2018.

This feels like something the Joker would do: colorful balloons carry explosives sent from Gaza into Israel (the bomb was safely defused with no injuries).

Meanwhile, here in Berkeley, a man has been arrested after bringing a fake bomb covered with antisemitic writing into our campus police department.

Tyler Cowen: speech regulation policies on private media platforms (like Facebook or Twitter) can be scalable, efficient, and consistent -- pick two. Put differently: a small website can efficiently manage a consistent moderation policy. But a large website (like Twitter) must either invest tremendous sums into moderation (far more than is cost-effective) or settle for a patchwork and inconsistently applied system that's largely ineffective and makes everyone angry.

UPDATE: Oh dang -- joke's on me! Apparently, today counts as the first day of 2019. Which means that 2018 -- like 2017 and 2016 -- will go down as having exactly 229 posts written.

That's kind of cool in its own right. I guess.

The Impossibility of Speech Disruption

Last week, I went to a talk at UC-Berkeley by James Loeffler on the Zionist history of the architects of post-WWII human rights law.

In the middle of the talk, there was a disruption.

Now you might think that "disruption at Berkeley of a talk on Zionism" would be from some sort of pro-Palestinian or anti-occupation activist -- but in this case, you'd be wrong. The disrupter instead was a disheveled old White man who stood up in the middle of the talk and started rambling incomprehensibly about Mammon and Christ and the coming day of judgment and some 500 year old campaign of resistance which either Jews were a part of or Jews were the adversary of (it really was hard to follow).

In a sense, this was the "ideal" disruption because it is entirely unsympathetic. There's no political controversy that skews our prejudices, there's no uncomfortable dissenting view that may need space for airing. On the ledger of "ensuring the speaker can speak" and "ensuring the audience can participate", every entry fell in favor of silencing the protester as quickly and decisively as possible.

Which is why I found it interesting that, even in this case, there really wasn't anything the event organizers could reasonably do to end the disruption in a timely fashion. We were pretty much at his mercy for as long as he wanted to talk. The organizers walked up towards him and sort of vaguely gestured at the exits, which he ignored; eventually a different organizer got a microphone and asked him to leave and let people listen to the talk, which he also mostly ignored. Eventually, he made his way down to the front and out the door (never not talking), started to walk out (to cheers), briefly walked back in (to boos), and then finally exited once again. But there was no real doubt that he could have kept going indefinitely, at least until some form of security arrived to forcibly remove him.

And that's the interesting thing about such disruptions: even in a case like this, where one is wholly unsympathetic to a protester who is adding no intellectual or social content to the event whatsoever, if he withdraws social cooperation and just refuses to leave when asked, there's really nothing anyone can do short of the physical. And that, in turn, will no doubt feel like an escalation and an overreaction -- the protester literally dragged out of the room -- even in a case like this, much less in one where some people might have sympathy for the protester.

And in a way, that dynamic is what is being relied upon in these sorts of protesters. Our society relies on certain implicit norms of social cooperation (such as, if you're asked to leave an event you're disrupting, you walk out under your own power). Where that cooperation is withdrawn, society isn't powerless, but it becomes a lot cruder a lot more quickly -- and the revelation of the crudeness is often the point of the protest. But the point of using the above example is to stress that this is the reality in any social case -- it isn't something unique to a particular political or social worldview. Any social institution relies on implicit cooperation as a substitute for physical power as against any sort of challenge -- it's not something unique to the good guys or the bad guys.

Qualified Grader Roundup

I passed my qualifying exam last week, which is the last formal hurdle before I begin writing my dissertation. That's a weird sentence to write -- like talking about the last safety check before jumping out of an airplane, or the last underling to defeat before facing the Ultimate Final Boss Monster -- but it's where I am.

At the same time, my students' final exams are due today, so my immediate future is not as a writer but as a grader. And since it would be just catastrophic if anything distracted me from that essential task, I suppose it's time to clear some browser space.

* * *

I wrote last week about alleged discrimination against Jewish chaplains in the army; now we get a different story about retaliation against a chaplain in the Air Force after he converted to Judaism.

This is the story of another immigrant we, the United States of America, effectively murdered in the most gruesome way possible (the penultimate part of the story -- before the death -- is an amputated penis) via a mixture of grotesque indifference to obvious medical need and complete lack of empathy.

UC-Berkeley releases its report on campus free speech issues. One interesting thing about it is that it is not really focused on questions law. Rather, it takes for granted that Berkeley is constrained in various ways by the First Amendment, and rather than dwelling on where those precise borders lie it tries to ask what practical steps the university can take -- consistent with those strictures -- to foster and maintain a healthy speech culture.

Also germane: Jeffrey Sachs has an interesting data set on instances of speech suppression on campus. Interestingly, there have been more successful terminations of left-of-center college professors for "bad" speech than conservative professors -- and while on its own that might be explained by different base rates, the big spike in left (but not right) firings from 2015 to 2017 can't be. The other interesting finding was that -- contrary to some narratives about the so-called "Palestine exception" to the First Amendment -- Israel issues were of comparatively minor importance. There were, depending on how you count Joy Karega (Oberlin) and Michael Chikindas (Rutgers), between three and five Israel-related terminations (or coerced resignations) over the data-collecting period (out of a total of 58). Of the unambiguous cases, two were for anti-Israel speech (Steven Salaita at Illinois and N. Bruce Duthu, who returned to the regular Dartmouth faculty from a deanship position due to backlash over his role in the NAISA BDS resolution), one was for pro-Israel/anti-BDS speech (Melissa Landa at the University of Maryland).

The mixture of deep hostility to divorce, openly male supremacist theology, and physical abuse is a toxic combination in the Southern Baptist church.

Speaking of toxic Protestants, a wing of the Presbyterian Church has published a follow-up to its notorious Zionism Unsettled document -- 110 pages on why Israel is the locus point of global colonialism and genocide (this sounds familiar....) through everything from eating hummus ("cultural genocide") to wanting to actually talk to people ("normalizing oppression"). This is the latest in a series of PCUSA highlights, including calls for all Jews to "come home to America" and my absolute favorite exhortation by a Christian minister on this issue: "Jesus wasn’t afraid to tell the Jews when they were wrong."

An interesting "This American Life" segment on an ill-fated Alabama field trip to see Schindler's List.

Two good pieces on police misconduct that I wanted to flag. One is by a Black police officer commenting on business trespass calls (like the Starbucks affair). The argument here is that when individuals call the cops against seemingly innocuous conduct, there is to some extent a fobbing off of responsibility to then say the police officers are the wrongdoers rather than the caller (cf. Colorado State). The other is in the Atlantic on how we might want to extend our narratives of police bravery or cowardice to cover instances where they whistleblow (or cover off) instances of violence, racism, or misconduct by their colleagues.

Post- (and Pre-)National Roundup

No, this isn't about Tillerson (or Goldstein, or McEntee ... goodness, this was a hell of a morning). I delivered the lecture on Nationalism in our Political Theory class today -- which went fine, except that I also have to teach a section on Nationalism tomorrow and now I've used up all my knowledge on the subject. Time for many rounds of my old standbys -- "say more on that", "well, what do you think?", and of course "break off into small groups to discuss."

Anyway, roundup time!

* * *

Advances in turbine technology are making wind power a real player in electricity market -- and not grading on the "renewable energy" curve either.

A powerful story on a UC-Berkeley student living in an unheated trailer with no sewage hookup .... that he's about to be evicted from. This is an extreme story, but it gets to why I get very defensive when Berkeley students are attacked in the media as supposedly epitomizing careless, unserious millennial frivolity. Many of the students here are coming from places and backgrounds where they're well aware of what it means to be attending UC-Berkeley, and are behaving accordingly under conditions that God willing I'll never come close to. When they're lazily stereotyped as aimless hippie stoners, it disrespects them, their work ethic, their talent, and their perseverance.

U. Penn. Law Professor Tobias Barrington Wolff on his colleague, Amy Wax, whom he persuasively argues has converted into the academic equivalent of an Ann Coulter provocateur. This passage is also generally applicable:

What academic freedom does not provide, however, is a free pass entitling faculty who say inflammatory things to escape denunciation or to engage in toxic behavior without consequence. Invoking academic freedom to delegitimize sharp criticism or to claim impunity for improper conduct is a misuse of that principle.

Many people have seen Adam Serwer's excellent commentary on Tamika Mallory's relationship with Louis Farrakhan (a sterling example, incidentally, of how to explain the NoI's appeal to certain segments of the Black community without washing away it's hideously bigoted track record), but Stacey Aviva Flint is another good addition to the list of Black Jews whose opinions you should read on this matter.

Gretchen Rachel Hammond -- the half-Indian Jewish transwoman best known for breaking the story of the Chicago Dyke March expelling Jewish marchers and then being fired from her own newspaper for covering the story -- has a powerful piece detailing her experience and her "divorce" from the trans community in its wake. It is a poignant, cutting, and often very sad piece -- not the least because, for all her fulminations against "intersectionality", the concept in its original manifestation would be very well suited to articulating the sort of marginalization and exclusion Hammond details (one would not be off the mark in summarizing Hammond's experience as one of being "split at the root" -- Adrienne Rich's felicitous phrase which has often been approvingly quoted in the intersectionalist literature).

Today in Academic Freedom

Yesterday, I published a column in Ha'aretz on Berkeley's response to the Ben Shapiro speech. I noted that, since the Berkeley administration actually did exactly what it should have done in ensuring that Shapiro's juridical right to speak was protected, and since the Berkeley community largely followed through and responded to his speech through perfectly legitimate means (counterspeech, non-violent protest, flyers, questioning), perhaps we could now move on the substantive merits of what signal it sends when Ben Shapiro is invited at all.

It's been a banner couple of days for academic freedom, after all. For example:

* Harvard administrators overruled its own History Department's decision to admit Michelle Jones, a woman who rose to prominence for conducting top-level historical research while incarcerated in Indiana, to their graduate school. Reportedly, the decision was motivated in part by what conservative media outlets would say if Harvard admitted "a child murderer, who also happened to be a minority."

* Harvard also withdrew a fellowship offer previously extended to Chelsea Manning, this time in response to furious objections from conservatives in the intelligence community who deem Manning a "traitor." Manning was convicted of leaking classified information, and had her sentence commuted after serving seven years in prison. Corey Lewandowski, who assaulted a reporter, and Sean Spicer, who epitomized the "post-truth" ethos of the Trump administration, remain fellows in good standing.

* The University of Maryland is investigating the termination of a Jewish professor, Melissa Landa, from the College of Education. Landa contends that her relationship with her colleagues soured after she began organizing against antisemitic comments by (now-former) Oberlin Professor Joy Karega (Karega was eventually terminated after spreading several antisemitic conspiracy theories on social media; Landa is an Oberlin alum). Several of Landa's students have released an open letter criticizing her termination, describing her as an "ally" and "one of the few professors who is an expert in helping students examine their own biases."

* A lecturer at the John Jay College of Criminal Justice was suspended after tweeting that he enjoys teaching "future dead cops." The New York City Police Union wants him fired, but New York Times columnist Bari Weiss wrote a lengthy essay explaining that, while the lecturer's views were offensive and reprehensible, it is important both for CUNY students and police officers to be exposed to ideas that discomfort them and respond via counterspeech rather than demand censorship [error: column not found].

* The University of North Carolina's board of governors shut down a civil rights center at UNC Law School which ruffled conservative feathers by litigating desegregation and environmental impact suits. I had already written about this controversy here, noting the incredibly ad hoc justifications given for what was obviously a political power play ("we just think law schools should focus less on practical training and more on esoteric, Ivory Tower theorizing!").

So that's where we stand. One suspects that some of these cases will gain great notoriety within certain political factions while others will be wholly ignored; switch the factions and you no doubt switch the cases that matter. As we've long since learned, academic freedom has a lot of fair weather friends. But as these examples indicate, the assault on academic freedom does emanate from a single source. You either defend the norms which let a university function, or you don't. 

I'm Sick of Smug-Takes on Berkeley Offering "Counseling"

Former Breitbart editor Ben Shapiro is coming to campus this week. Shapiro will be followed this month by Ann Coulter, Steve Bannon, and Milo Yiannopoulos, as part of a Berkeley "free speech week".

In a long email outlining the various campus policies that would be in place to facilitate all these speeches (and as I've consistently argued, having been invited by authorized community members they do have a right to speak free of censorship or material disruption, though of course not from non-intrusive protest or criticism), Executive Vice Chancellor Paul Alivisatos mentioned that, among other things, counseling services were available for any students who felt "threatened or harassed simply because of who they are or for what they believe."

And the internet went wild.

I don't need to collect links -- here's an example, but they're not hard to find. Across the entire political spectrum of the mainstream media -- you know, center-left to hard-right -- there was near-uniform glee in dumping on coddling Berkeley administrators and infantile Berkeley students who need counseling just because they're hearing "ideas they disagree with."

I cannot tell you how sick I am of hearing this. It's lazy, it's a cheap shot, it's intellectually incoherent, and above all it's mean-spirited. Berkeley isn't wrong here. And it's detractors are showing more about what's missing in their character than the most stereotypical Golden Bear hipster.

For starters, Berkeley is a big place. Its total enrollment is over 40,000 students. These young people come from a range of backgrounds, and at any given time across that 40,000 there will be persons who are struggling, or experiencing crises, or feeling threatened, or any other permutation of personal circumstance and emotional troubles you can imagine. I've already written recently about how all of us -- self-satisfied declarations notwithstanding -- intuitively understand how certain speech can truly wound deeply, in a manner which we can all empathize with. That doesn't mean we ban it (and offering counseling doesn't "ban" anything), but it does mean that there's a genuine phenomena that we can and should attempt to address

So let's be empathic. Let's imagine, amongst Berkeley's 40,000 students, that there is a student who is struggling. Maybe he's away from home for the first time and having difficulty adjusting. Maybe she feels in over her head in classes, finding that work that got her an A in high school is barely scraping a C at Berkeley. And then let's add more to it -- maybe he's just found out that he's now at imminent risk of deportation from the only country he's ever truly known. Maybe she's found out that, though she proudly served her country and is a veteran of the American armed forces, the President of the United States publicly declared her to be a burden on the US military who should never have been allowed to wear the uniform.

Now let's remember who Ben Shapiro is.

Ben Shapiro thinks that trans individuals suffer from a "mental illness" and gratuitously misgenders them for the primary purpose of causing offense. He refers to DACA as President Obama's "executive amnesty". Pretty much the only reason he isn't an avowed member of the alt-right is that they happen to hate him too. He's not an intellectual. He's not one the great thinkers of the right. His oeuvre, his raison d'etre, is to be a hurtful provocateur. That's what he brings to the table.

And let's be clear: this, the above, was why Ben Shapiro was invited to Berkeley. It wasn't because he offered "a different view." And it certainly wasn't because of the intellectual candlepower he has on offer. The people who invited Ben Shapiro to UC-Berkeley did so because of, not in spite of, the hurt he will dish out to already-vulnerable members of the community.

The students I outlined above -- already struggling, buffeted by political dynamics which very much are designed to dehumanize them -- now have to reckon with the reality that a non-negligible chunk of their colleagues are glad they're feeling that way. They actively want to accelerate the process. They'll go out of their way to invite speakers to reiterate and emphasize the point.

Honestly, I don't blame them if they could use a venue to talk out their feelings a bit. It strikes me as spectacularly uncharitable, a colossal failure of basic empathy, to think otherwise. Then again, what is our polity going through now but a colossal failure of basic empathy?

After the election, I made a similar comment (which I cannot find) when people again made fun of college kids who expressed deep hurt and fear upon the election of Donald Trump. This, too, was attributed to fragile millennial snowflakes who don't know how to tolerate hardship. And I remarked that the man now faced with being expelled from the country is not scared because he's frail, and the woman who was the victim of a sexual assault is not despondent because she's weak-willed. We've seemingly moved past "don't punch people who think you're subhuman" (okay) to "don't be sad that people think you're subhuman" (really?).

Some are arguing that the real problem with offering counseling is that it doesn't teach the kids "resilience". First of all, I wonder what they think goes on in counseling sessions -- my strong suspicion is that they are precisely about fostering resiliency so that students are better able to cope with such annoying trivialities like "I may be torn from the only home I've ever known at any moment and a sizeable portion of what I thought was my community will cheer as they drag me off." The objection here isn't so much to lack of resilience as to the university having the temerity to try and teach it -- like objecting to wilderness training because shouldn't real men already know how to survive outdoors?

Second, it is hard not to hear in this objection a deep resentment at the fact that today, even now, some people still do proactively care about the feelings of others. The argument seems to be that "fifty years ago if someone felt marginalized on a college campus nobody gave a shit. Today, some people -- including a few holding administrative positions -- do care, and for some reason that's a step backwards for society." One can hear more than a little of the typical mockery associated with using therapy of any sort -- though I admit I hadn't heard it manifest this overtly in some time -- which suggests that only persons of pathologically fragile mental composition could ever need something as lily-livered as counseling. Again, I find this argument hard to relate to, seeing as its genealogy is so thoroughly bound up in nothing more complicated than pure cruelty. Shorn of the feelings of superiority it generates, can anyone actually defend this?

Others complain that students shouldn't be going to therapy in response to such speech, they should be responding in other ways -- debate, protest, donations, activism, any thing else. Of all the objections, this is the one that is the most difficult to credit. Does anyone think that the only way Berkeley students will respond to Ben Shapiro's speech is by going to counseling sessions? That Friday morning, all 40,000 of us will march into whatever center houses our mental health professionals and demand to be soothed? Of course not. Of course there will be debate, and protest, and donations, and activism. And you can bet that however such actions manifest, people will still find a way to denounce the entire response tout court -- unjustified actions like violence, yes, but also silent protest, but also waving signs, but also pure condemnatory speech (especially if that speech dares use the dreaded -ism or -phobic suffixes).

Finally, let's dispense with the notion that this is all being triggered by students who can't tolerate "ideas they disagree with." For starters, it's notable that while Alivisatos' email does not in fact refer to any speakers in particular, everybody simultaneously assumed they were talking about Ben Shapiro while at the same time being aghast at how anyone could possibly need counseling after hearing Ben Shapiro. Me thinks they protest too much. But more to the point: Berkeley regularly hosts speakers who will present ideas many on campus will disagree with. This week, David Hirsh is giving a talk on "Contemporary Left Antisemitism" -- surely, many on campus would resist his conclusions. Later this term, National Review editor Reihan Salam will be speaking on immigration policy -- with no known objections or protests planned.

So the problem isn't ideas people disagree with. The problem is Ben Shapiro, and Ann Coulter, and Milo Yiannopoulos. One doesn't invite them to campus because they're presenting important ideas which need to be reckoned with. There are plenty of conservatives who fit the bill, and when those conservatives show up they are typically met with little fanfare. But if you're inviting this contingent, you're doing it because you like hurting people. That's their comparative advantage, that's the thing they can offer over and above all of their competitors.

It neither bothers me, nor surprises me, nor offends me, that this offends certain students. If some portion of those students are in an emotional place right now where they feel like they need counseling, I encourage them to get it. If others want to protest the speech, I support their right to do so within the parameters of the law. If still others want to attend the speech, or subject Shapiro to harsh questioning, or pen scathing op-eds in the Daily Cal, I applaud them all for it. And each of these options got pride of place in Alivistos' email.

All of these are valid responses. None of them are worthy of scorn, none of them signal any deficiency in our student body. What is far more worrisome is the reaction of the so-called "adults" in the media, who have grown so fond of bashing kids-these-days that they've seemingly forgotten the need to reason, much less to empathize.

Hi, I'm David, and I Don't Drink Almond Milk

Michael Tomasky gives us the latest installment of an everflowering series: crudely caricaturing "coastal elites" while purporting to educate them on middle Americans:

[E]lite liberals need to recognize a fundamental truth: All of these people in middle America, even the actual liberals, have very different sensibilities than elite liberals who live on the coasts.

First of all, middle Americans go to church. Not temple. Church. God and Jesus Christ play important roles in their lives....

Second, politics simply doesn’t consume middle Americans the way it does elites on the coasts.... They talk kids, and local gossip, and pop culture, and sports....

Third, their daily lives are pretty different from the lives of elite liberals. Few of them buy fair trade coffee or organic almond milk. Some of them served in the armed forces. Some of them own guns, and like to shoot them and teach their kids how to shoot them. Some of them hold jobs in the service of global capital and feel proud of their work.

Fourth, they’re patriotic in the way that most Americans are patriotic. They don’t feel self-conscious saluting the flag. They don’t like it when people bad-mouth our country. They believe that America is mostly good, and that the rest of the world should look more like America.

I find these very frustrating, not because of what they say about middle Americans, but because of what they say about me -- born inside the beltway on the east coast, currently living in the ultimate liberal bubble of Berkeley on the west coast.

I don't drink almond milk (I've tried it, once, and think it's disgusting). I don't buy fair trade coffee or sip lattes of any variety. I've fired a gun, and while I don't have any real interest in doing it again, I don't begrudge others who do. I have friends from both high school and college who served in the armed forces. I can chat pop culture with the best of them (ask me about my breakdown of  Gordon Ramsay shows). There is plenty that I find great about America, and am quite happy to kvell about.

Admittedly, I talk politics a lot (I am a political blogger), and I go to synagogue, not church. But I just got back from a funeral (my fiance's grandmother) which was held at a church in a town of less than 2,000 in rural Minnesota (Goodhue County went for Trump by 18, FYI). I survive such locales just fine. And while I always knew of how important her Christian faith was to her life, when I found out that she had specifically included me in her deathbed prayers, I was deeply moved.

Maybe this feels like protesting too much. But it's not just about me. It's also about the folks here at UC-Berkeley -- yes, hyper-lefty Berkeley -- that falsify that coastal bubble hypothesis.

When I started at Berkeley Law, my most liberal student was an alum of the University of South Carolina, and my most conservative was literally the scion of a wine dynasty. In between I taught decorated combat veterans and the daughter of an inland empire county sheriff. This is typical. UC-Berkeley is one of the world's great public universities, and our students accordingly come to us from all over the state and all over the world. They come from suburban Orange County, yes, but also inland ranch towns and impoverished LA neighborhoods. It is no surprise at all that Berkeley ranks ninth in the New York Times college access index measuring economic diversity amongst enrolled students, nor that UC schools comprise the entirety of the top 5.

So maybe we're asking the wrong questions. We know that students come from a wide range of backgrounds and geographic locations and pedigrees to attend to Berkeley. Indeed, I suspect that more Berkeley students and alumni know a sizeable chunk of folks who grew up in small towns than persons who grew up in small towns know a sizeable chunk of folks who attended schools like Berkeley. And we know that the resulting campus culture here at Berkeley is very liberal. And yes, self-selection plays a part in that, as does the relative ideological uniformity of the faculty. But maybe, just maybe, it's also evidence that when you expose people to a rich tapestry of human diversity encompassing people of a wide range of backgrounds, hometowns, and pedigrees -- the result is a tendency towards liberalism.

The fact is, our students aren't born on the Berkeley campus. Some of them come from those rural towns (in California or elsewhere). Or they don't, but their parents did. Or their best friend. Or their roommate. Or their future spouse. To act like Berkeley students have never met anyone who doesn't eat gluten-free is a grotesque parody of who actually comprises our "bubble".

So of course we should respect each and every part of America -- urban, suburban, and rural, north and south, coastal and middle. But the "coastal elites" who supposedly sniff down upon middle Americans from atop their soy lattes? They weren't born in a Starbucks. They might have been born in that small town in rural Minnesota that they supposedly cannot possibly understand.

Today I Got Assaulted

Today, walking to lunch in Berkeley, I was shoved into a wall.

I'm fine, mostly. Some minor scrapes on my wrist and soreness in my shoulder (which took the brunt of the impact). And the lawyer in me needs to say that technically, it was a "battery" and not an "assault".

The man who attacked me was a member of the local homeless population, and I suspect has some form of mental illness (when I called my mom to tell her, her first thought was that it was a protester angry at something I had written on my blog. Leave it to a Jewish mother to instinctively assume that her son must be important enough to be targeted for violence. A nice career aspiration, I suppose.).

Anyway, we were walking past each other on the sidewalk -- me on the building-side, him street-side -- and as we passed he yelled something unintelligible at me and then kind of pushed/body checked me into the wall.

I was in a bit of shock, and didn't really know what to do, so I just kept walking. But looking over my shoulder, I saw him strike another pedestrian behind me, who was much more visibly upset than I was. And unlike me, he had a bunch of witnesses who urged him to contact the police (conveniently enough, all of this happened literally across the street from the UC-Berkeley Police). Once I saw him walk across the street to talk to the officers, I figured I might as well join him. Unfortunately, my co-victim said he had a final exam to take and quickly bolted, so I ended up being the only person to give a statement.

After quickly getting my information, the first thing they asked was whether I wanted to file a formal police report. Since no officer had witnessed the crime, they couldn't arrest the man (who claimed he was "tying his shoelaces" -- no, he wasn't) without a report. I asked what that would entail. One of the officers said that this was misdemeanor assault, and that in all likelihood he'd be cited, spend a few days in jail, and then be released. I asked if he was known to be violent -- if he was a known problem then that'd be one thing, but if this was a one-off I wasn't sure I wanted to make a big deal about it. One officer said he didn't know of any violent behavior the guy had done, but another said that he was on probation and that he was kind of day-to-day -- sometimes in a good mood and smiling, and other days ... more like this.

Ultimately, I decided to file the report (the decisive factor in my reasoning was that he had hit me and another guy). So I got to have my statement taken (along with pictures of my various scrapes and bruises), and chat with several officers in the process.

One of them was very invested in telling me that media coverage of police violence was completely overblown and that it overlooks all the circumstances or reasons why police use of force might be justified. That was academically a very interesting perspective to listen to, mostly because it was coming from a rank-and-file officer who giving his pretty unvarnished vantage (rather than something airbrushed through a PR office tailor-made to persuade liberal college students).

For example, one rationale one often hears from the "stop snitching" movement is that one shouldn't call the police on people because, when you do so, you're calling upon the tools of state violence which will impose that violence in quite predictable ways on vulnerable communities. And this (non-White, I should add) officer basically offered the same analysis -- except from the other side: he was upset that people call the police and then get angry that the police they call sometimes have to use force. "What did you think would happen," he said (my paraphrase), "if you call us, you're saying that the enforcement arm of the government needs to come in and act as enforcers! So don't act shocked and indignant when we do that!" He believed that the act of calling the police was an implicit license for whatever force was needed to protect the innocent, and thought that the public was two-faced in their desire for protection while disavowing the sorts of acts he felt were frequently necessary to facilitate that protection. Or at one point I thought I was being conciliatory and said something to the effect of "I know no officer thinks it's a good day when they have to use force ....", but he interrupted me and said that you don't become a police officer unless you like all aspects of the job, and there are days where he hopes some punk will give him a reason to take him down.

So again -- that was interesting.

Anyway, I asked what the next steps were, and the answer was "likely nothing" -- the case will almost certainly not go to trial, there will be a citation, a few days in prison, and then he'll be released. Which seems about right. This was not some violent superpredator who needs to be locked away for decades sort of deal.

I'll make one other comment, which may "cut against interest" so to speak. In the immediate aftermath, I was thinking that this was the first time I'd really been the victim of a semi-serious crime. But that made me think back further, and remember one time at Carleton where a bunch of bros (almost certainly drunk) were walking past me in a hall and did something very similar -- a sort of unprovoked push/body check as I was walking past. And my thought then wasn't "I've just been the victim of a crime", it was "wow, those guys are assholes!"

Which they were. Physically attacking other people is an assholish (or, potentially, congressional) thing to do. But the distinction does raise the question of why that event was coded as "assholishness" while this one was coded as "crime". And there are perfectly neutral reasons I could give: For one, the Carleton event didn't cause any cuts, scrapes or bruises. For two, I didn't see the Carleton guys do this to anyone else, whereas I did immediately see this guy attack another pedestrian. And for three, here several witnesses specifically urged the (other) victim to contact the police (who were literally within eyeshot) and he did so -- I just followed along to corroborate.

Still, it seems very likely that part of what explains the difference was the social construction or narrative of what constitutes "crime" or "criminal". When relatively privileged college students push someone around, that makes them dicks, bullies, or jerks. When a homeless person who speaks little English does it, that makes them a criminal. The fact is that two people at various points in my life did effectively identical things to me that violated the same formal criminal proscription, and only one of them now has an arrest record for it. And the reason for the divergence is, at least in some part, due to social positionality.

I don't have cutting commentary to add to this. Just an event that happened that I figured I should reflect upon.