Berkeley, BDS, and the Bylaw: A Students’ Right to Boycott

By: Maryam Alhakim and Malak Afaneh

On 21 August 2022, 9 student organizations at Berkeley School of Law adopted a pro-Boycott, Divest, Sanctions (BDS) bylaw, written by the Co-President of Law Students for Justice in Palestine (LSJP), Malak Afaneh. Comprised of three main asks, the bylaw requested student organizations’ dedication in: 1) wholly boycotting, sanctioning, and divesting funds from entities complicit in the occupation of the Palestinian territory and/or the actions of the colonial-apartheid state of Israel; 2) refraining from inviting speakers in support of Zionism, the colonial-apartheid state of Israel, and the occupation and apartheid of Palestine; and 3) participating in a “Palestine 101” training held by LSJP.

Although Berkeley Law provides a space for students to learn about principles of international law, Israel’s colonization and apartheid against Palestinians is not a subject that is commonly mentioned in the classroom setting, or within student spaces. To ensure demonstration of solidarity with Palestine, both in theory and practice, LSJP quickly realized that providing education and awareness on the impacts of settler colonialism on Palestinians was needed. In applying decolonial epistemologies that center education as an avenue for forming “transformative community,” LSJP engaged in a series of conversations on the significance of the bylaw with a moderate number of student groups that would realistically allow for the community building LSJP envisioned. By participating in a compassionate and inclusive dialogue, student groups were able to ask any question they may have, and follow their constitutional policies of voting to democratically adopt the bylaw.

UC Berkeley’s history of supporting struggles for human rights

Engaging in political boycotts and free speech movements is not new at Berkeley. In 1964, the Free Speech Movement at UC Berkeley erupted because students demanded their right to support and fundraise for the Civil Rights Movement, when UC Berkeley had only allowed students to raise funds for the Democratic or Republican parties. In 1986, in response to student-led calls to boycott South Africa for its apartheid against Black communities, Berkeley established a 3-year plan to divest their holdings in South Africa. Similarly, in 2006, Berkeley again voted unanimously to divest holdings in 9 major companies doing business in Sudan, as a means of aiding in global movements to put an end to the genocide in Darfur. In 2020, Palestinian students in Bears for Palestine, a Berkeley student-led group dedicated to the liberation of Palestinians, and its allies, were on the receiving end of genocidal threats and islamophobic hate crimes, such as taking students’ hijabs off, because /they wanted to display a picture of freedom fighter Leila Khaled.

Boycott: a first amendment right, except for Palestine ?

In NAACP v. Claiborne Hardware Company, the Supreme Court formally incorporated the right to nonviolent boycott and protest, as a First Amendment protection. The right to boycott is essentially a manifestation of the First Amendment right to express political speech and bring about social change. LSJP and the student organizations that decided to engage in BDS and boycott Zionist speakers do so with the intent to make the political statement that companies, universities, and individuals should not benefit from the apartheid state.

Additionally, the First Amendment protects student groups’ rights to engage in viewpoint discrimination (the act of singling out one viewpoint either in support or opposition) at public universities like U.C. Berkeley. With the conflation of anti-Zionism and anti-Semitism, LSJP has been forced to be on the defensive and assert that we are not attacking any of our Jewish students, and that we are forcefully exercising our First Amendment right to boycott speakers based on their political ideologies. However, when students across the nation choose to support a cause that forces administration to reveal what side they stand on regarding Palestinian Liberation, SJPs/they receive pushback. For Berkeley LSJP, the pushback consisted of accusations of anti-Semitism and constitutional violations. Coined as the “Palestine exception,” the administrations’ decision to pick and choose when they protect their students’ First Amendment rights has resulted in the censorship, intimidation, and harassment of students, with the ultimate goal of deterring Palestinian rights advocates from speaking out.

Attacks against Berkeley Law’s students or events in support of Palestinian rights

It is no secret that, in the early days of Zionism, many Jewish people did not agree with the creation of Israel. Today, Zionist propaganda has shifted to create a sympathetic storyline in line with liberalism of “nuance” that ignores the blatant reality of colonial-apartheid. Zionist Berkeley Law students themselves admit that they see anti-Zionism and anti-Semitism as the same. At any event hosted by LSJP, Zionist students come and ask for a “balanced” conversation, because they claim that, “acting alone”, we are denying Jewish people their right to a homeland. Denouncing the false equalization of Zionism and Anti-Semitism, Jewish Anti-Zionist at Berkeley Law issued a statement affirming that “opposition to Zionism is not about displacing Jews, but about seeking justice for the displacement of Palestinians. The BDS campaign and the by-laws at issue do not attack Jewish people or faith. Rather, they serve as political and material resistance to the State of Israel's repressive settler-colonial practices.”

A perfect example of Zionist suppression, and lack of support for Palestinian voices, is happening to us, at Berkeley Law, which is a privileged and supposedly liberal law school, from within and outside the school. One instance of this lack of support within the school is when classmates tell that they support the bylaw, and are advocates for Palestinian Liberation, but when asked to adopt the bylaw, they in secret voted against it. Other classmates distanced themselves from organizations that passed the bylaw, because they were afraid of losing employment opportunities on account of being characterized as antisemitic by right-wing media. Since finding out about the bylaw, Zionist have flooded the emails of student groups with islamophobic, racist, and antisemitic remarks, while demanding we repeal the bylaw. Law firms have questioned students in interviews about the bylaw. Northwestern Law School professor, Steven Lubet, suggested not to hire Palestinian rights defenders from Berkeley Law for clerkships. Even off campus, political organizations have decided to attempt to shame members of LSJP and of other student organizations that adopted the bylaw. In December 2022, Canary Mission, a website dedicated to revealing private and sensitive information about individuals, be them students, professors, professionals, and organizations, with a malicious intent bordering cyberbullying doxxed Alhakim, LSJP board member and president of the Muslim Law Students Association, as well as other known student leaders who adopted the bylaw, and members of Student Government who have supported LSJP. One organization called Accuracy in Media, a right-wing political organization, rented trucks that drove around the law school for three days, displaying Alhakim’s and other students’ names, accusing them of being “Berkeley Law’s Antisemitic Class of 2023.”

Despite censorship and intimidation, the fight for Palestinian rights continue

The changing definition of anti-Semitism, coupled with intense methods of intimidation, has historically scared students into silence. Yet, some continue to persevere, even against the threats of job losses, or to their sense of security. Pushing back against the false alignment between anti-Zionism and anti-Semitism has opened up a conversation at Berkeley Law on what is the right to boycott.

Berkeley Law students’ support for the bylaw has resulted in doxxing by right-wing institutions, but for Palestinians in Palestine, their acts of resistance have resulted in administrative detention, torture, and even death. As students attending an institution in a country that annually provides 3.8 billion dollars in military funding and support to Israel, it is our responsibility to support Palestinians in their movements for liberation, in the principled manner Palestinians determine.

In the words of Palestinian scholar and activist Noura Erakat, the bylaw is a “canary in a coal mine,”[1] and an example of an act of resistance that can be practiced by students advocating for Palestinian rights, at institutions across the country. For years, Palestinians have engaged in the revolutionary practice of sumud, or steadfastness. A form of “revolutionary becoming,” sumud presents a “line of flight”, a shifting perspective, in the face of violent colonial attempts to cement Palestinians in their position of the colonized, and Israelis as their superior colonizer. Despite facing backlash and harassment, more than 10 student organizations at Berkeley have adopted the bylaw, increasing the total number of organizations from 9 to 19, while the National Lawyers Guild, a public interest association, has also adopted it across its chapters. LSJP and the student community at Berkeley Law will continue to work to adopt the bylaw, and remain steadfast in the fight for the freedom and liberation of Palestinians everywhere.