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January 9, 2024
Dear Berkeley Law Alumni,
Happy New Year! As we begin 2024, I hope that you and your loved ones will enjoy a fulfilling year with good health and much happiness.
Since becoming dean in 2017, I have written quarterly messages to alumni. It is a chance to inform you about what is happening in our law school community.
In so many ways, 2023 was a great year for Berkeley Law. We added nine superb new faculty members, attracted terrific students to all of our programs, created a number of new centers, and had our best year of fundraising in the history of the law school. Our clinics and centers are doing enormously important work and our faculty continue to produce cutting-edge, influential scholarship. I approach the new year with great confidence about where we are as a law school.
Yet, there is no doubt that the last few months of 2023 were difficult at Berkeley Law and for the Berkeley campus, as they were for so many universities across the country. But there also is no doubt that media reports about Berkeley Law and the campus have been highly inaccurate. The Law School’s classes and programs continued without interruption, disruption, or incident. There were a number of educational programs presenting many different views about the ongoing war in the Middle East.
I thought it important to devote this quarterly newsletter to discussing our policies with regard to freedom of speech, and some of the issues that have arisen, rather than my usual report on what is happening in the Law School.
First, we are committed to being a law school where all ideas and views can be expressed, even ones that some of us find offensive. I hear a great deal from those on all sides about feeling “unsafe.” To be clear, the Law School and the campus have an obligation to do what we can to protect the physical safety of our students, staff, and faculty. Although we thankfully have not had any threats to anyone’s physical safety, we have taken additional steps to provide security in our building and are exploring other possible actions. But it is not the role of a university to protect people from ideas and views they may not want to hear.
To be clear, antisemitism and Islamophobia — along with all other forms of hate and bias — have no place within our law school or on our campus. Although all views can be expressed, I will speak forcefully against expressions of hate and bias.
Second, as an educational institution we must educate. We have had and will continue to have programs looking at the history and current situation of the Middle East from a variety of perspectives, as well as focusing on antisemitism and Islamophobia. I expect that as we approach the 2024 presidential election we will have programs presenting varying views on many issues in the campaigns.
I have repeatedly made clear that disruption of events, as has occurred at other law schools, will not be tolerated. If students disagree with a speaker, they can engage in non-disruptive protests and bring in their own speakers. But students who engage in disruption face disciplinary sanctions. I am pleased that although we have had many controversial speakers, there have been no disruptions of any events at Berkeley Law.
Third, there has been much attention in the media over the last year to a bylaw adopted by some of our student organizations, but the media has presented an inaccurate picture. The issue arose when some student organizations adopted a bylaw, drafted by Law Students for Justice in Palestine (LSJP), committing the organization to not invite speakers who supported “Zionism, the apartheid State of Israel, or the Palestinian occupation” and requiring members of the organization to participate in “Palestine 101 training” conducted by LSJP.
The Law School has an all-comers policy that requires every student organization, and all student events, to be open to all students. I know of no violation of this policy. I also know of no instance of a student group not inviting a speaker or rescinding an invitation based on the speaker’s views about Israel.
The First Amendment allows those putting on an event to decide the views to be expressed at that event. The Federalist Society can choose to invite only conservative speakers. A Women’s Law Association could choose to invite only pro-choice speakers. Therefore, it has been my consistent position that the Law School cannot constitutionally bar student organizations from adopting the LSJP bylaw or choosing its speakers however it wishes.
But it is different when it comes to journals receiving academic credit and that are published by the Regents of the University of California. The Law School decides when to award academic credit and what it will publish. Thus, the journals were informed in October that their students cannot receive academic credit if they adopt a bylaw requiring their members to participate in the LSJP’s Palestine 101 training. We would not allow a civil procedure or business associations professor to require this as a condition for credit. Also, journals cannot continue to be published by the University of California if they adopt a bylaw that they will not publish authors who support the existence of Israel. Of course, students can publish what they wish on their own, but a journal published by the Regents and the Law School cannot have such an ideological litmus test.
The approach we have adopted to the LSJP bylaw has been criticized both by those who want to see the Law School prohibit groups from adopting the bylaw as to speakers and by those who object to denying credit and publication to journals that adopt the bylaw. Yet I believe that this approach is necessary to balance the free speech rights of our students with our responsibilities as an educational institution.
Fourth, as I have expressed in several messages to the Berkeley Law community, I hope that we will be tolerant and respectful of all viewpoints. Even more, I hope that we will treat one another — even those with whom we disagree — with respect and kindness. We all determine what kind of community this will be and I have no doubt that, as we adhere to the Berkeley Principles of Community, we all benefit from making it a community of tolerance, respect, and kindness.
Fifth, we will and must provide support for all of our students. We have increased the mental health services available to students. In addition, I am grateful to our student groups and for our campus organizations that do this.
I hope that this provides clarity about our free speech policies. I deeply believe that Berkeley Law remains a hospitable environment for students of every ideology, religion, race, ethnicity, gender identity, and sexual orientation. We must continue to do all we can to support all of our students.
I know many of our alumni have questions and concerns about what is happening in the Law School. Please don’t hesitate to reach out to me directly to raise anything you wish. My email is echemerinsky@law.berkeley.edu and my phone is 510-642-6483.
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I also wanted to let you know that the Berkeley Law community will celebrate the life of Professor Emerita Eleanor Swift with a memorial service on Friday, Feb. 2, from 4:00 to 6:00 pm. The ceremony will be held in Booth Auditorium, with a reception to follow in the Warren Room and Donor Lobby. Eleanor, who passed away Sept. 20, taught at Berkeley Law for 35 years and was a pathbreaking scholar, a trailblazer for women in legal academia, and a beloved mentor. The fifth woman hired to the law school’s faculty, she made it her life’s work to mentor women students and scholars both inside the classroom and in her research field. She twice chaired the AALS Evidence Section and received the 2022 John Henry Wigmore Award for Lifetime Achievement from that section among her many honors. You are warmly invited to attend the upcoming service and to add your reflections about Eleanor to this In Memoriam page.
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With best wishes for a wonderful new year,
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