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.
