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Berkeley Law Student Protests at Dean’s House: How Experts and Advocates Are Reacting

8 minute read

The University of California at Berkeley has long been known as a hub of social activism, and Erwin Chemerinsky, the dean of its law school since 2017 and a renowned constitutional law expert, has been a staunch proponent of the First Amendment rights of protesters. Earlier this week Chemerinsky, who is Jewish, was the subject of posters depicting a caricature of him that he later said he believed to be “deeply offensive” and “blatant antisemitism” but that he also believed had a right to be displayed as protected speech.

It may then have come as a surprise to Chemerinsky that just days later he would be at the center of the latest flashpoint in a heated ongoing debate about free speech on American college campuses amid tensions over the war in Gaza—with activists accusing him of stifling their expression.

Controversy erupted after video was shared online of Chemerinsky and his wife, law professor Catherine Fisk, confronting a Muslim law student, Malak Afaneh, who disrupted an event on Tuesday in their back yard to make a pro-Palestinian speech. She wanted the school to withdraw investments of its endowment in companies that allegedly support Israel. Chemerinsky was hosting about 60 graduate students for an unrelated dinner when the incident occurred. “Please leave our house,” Chemerinsky angrily pleaded to Afaneh. “You’re guests at our house,” he said. Fisk could be seen touching Afaneh and trying to grab her microphone.

The incident soon went viral from clips spread on social media that collectively garnered over 10 million views across various platforms, including a widely-shared one with a caption that said: “On the last day of Ramadan, UC Berkeley professor assaults a hijabi.”

In other footage, according to the Los Angeles Times, Fisk could be heard saying, “We agree with you about what’s going on in Palestine.” As Afaneh and several other students were seen leaving the place, one of them asked, “Then what have you done about divestment? Nothing. Nothing”—to which Fisk replied, “We don’t control the investment.”

The controversy that ensued has since drawn sharp reactions from those at the center of the incident, including Chemerinsky and Afaneh, as well as a number of legal experts, advocates, and organizations weighing in on the matter.

Here’s what they’ve had to say.

Erwin Chemerinsky

In a statement published on the Berkeley Law website, Chemerinsky said that he and his wife had been inviting students to their home for dinner since he became a dean. “I never imagined that something that we do to help our community would become ugly and divisive,” he said. “I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.”

UC Berkeley law school dean Erwin Chemerinsky at his home in Oakland, California
Chemerinsky at his home in Oakland in 2021.Carlos Avila Gonzalez—The San Francisco Chronicle/Getty Images

In an interview on CNN, Chemerinsky elaborated on why he thinks he was the target of such a protest, explaining that he has no control over the investments of the University of California and claiming that he’s “said nothing in support of what Netanyahu is doing in Israel … so it’s hard for me to see any reason why they were coming after me other than I was Jewish.”

Chemerinsky has not said whether he would pursue disciplinary action against Afaneh, but he told legal journalist David Lat that, if he does, it would remain confidential.

U.C. Berkeley

University Chancellor Carol Christ, who is leaving the position at the end of June, said in an emailed statement cited by media outlets that she was “appalled and deeply disturbed” by the events at Chemerinsky’s dinner. “While our support for Free Speech is unwavering, we cannot condone using a social occasion at a person’s private residence as a platform for protest,” she said.

Dan Mogulof, a University spokesperson, told NBC that he could not comment on whether legal or disciplinary action would be taken against Afaneh, Chemerinsky, or Fisk.

Malak Afaneh and her supporters

Afaneh, a leader of the group Berkeley Law Students for Justice in Palestine, said in a statement that “Fisk’s assault was a symbol of the deeper Islamophobia, anti-Palestinian racism and religious discrimination that runs rampant within the UC administration.” 

“I was attacked not only for speaking about Palestine but also because I was a Muslim woman who dared to wear a hijab and a keffiyeh and speak in my native tongue of Arabic, equating my identity with something that should be feared and someone who deserved to be silenced,” the statement continued.

“I was not attacked because I was speaking about Palestine,” Afaneh told KQED. “Quite to the contrary, I was attacked because I was simply a Muslim woman wearing a hijab and a keffiyeh in her home.”

Berkeley Law Students for Justice in Palestine supported Afaneh in a statement on Instagram: “As students at UC Berkeley, we unequivocally condemn the use of force against the brave Palestinian, visibly Muslim student who wanted to peacefully speak about Ramadan.”

Other pro-Palestinian groups have also defended Afaneh and criticized what they allege was inappropriate suppression of her rightful advocacy.

The National Students for Justice in Palestine said in a statement on X that it was “unacceptable” for the school to “host an official Ramadan event at the private home of Islamaphobic faculty members.” It added: “Hosting such an event off-campus intentionally muddles the line between the private/public sphere & thus functions to quell student protest.”

And the Berkeley Faculty and Staff for Justice in Palestine group posted on Instagram that it was “united in solidarity with Malak” and condemned “the violent and racist actions” of Chemerinsky and Fisk.

Rights and civic advocacy organizations

Zahra Billoo, executive director of the San Francisco Bay Area office of the Council on American-Islamic Relations (CAIR-SFBA), where Afaneh also works as a clerk, said in a statement that “Students at UC Berkeley have reported being targeted and harassed for their Palestine advocacy for many months now, not just by fellow students but also faculty and administrators.” 

“It is concerning to see [Chemerinsky’s] and Professor Fisk’s violent response to a student speaking out against the Israeli genocide in Palestine,” Billoo said.

Both CAIR-SFBA and Berkeley Law Students for Justice in Palestine have urged the public to send template emails calling for disciplinary proceedings against Fisk and the resignations of both Chemerinsky and Fisk, respectively.

The National Lawyers Guild, a legal advocacy group which Afaneh cited during the incident, also condemned the couple’s actions. “Physical force in response to the exercise of the right to dissent through speech is never acceptable, and is especially outrageous when condoned by a renowned legal scholar and educator,” it said in a statement posted on X. “The NLG expresses full support to this courageous law student who asserted her right to free speech by choosing to speak truth to power at a school-sanctioned event.”

Meanwhile, the American Jewish Committee (AJC) said on X that college campuses have been experiencing for months “disruptive anti-Israel protests” that target students for “abuse and even violence.”

“Now, they’ve targeted UC Berkeley Dean Erwin Chemerinsky in his home,” AJC said. “This is not free speech; it’s an infringement on the freedoms and dignity of Jews, both on and off campus, and it must stop.”

The Foundation for Individual Rights and Expression (FIRE), which advocates for civil liberties especially on college campuses, shared its disapproval of Tuesday’s dinner protest in a post on X: “Peaceful protest on public campuses is protected speech. Disruptive protest and trespassing on private property is not. The First Amendment doesn’t protect seriously disrupting events on public college campuses, much less at someone’s backyard dinner party.”

Legal scholars

The incident has sparked discussions and even some disagreement among legal experts and commentators about whether students had the right to protest on Chemerinsky’s private property on Tuesday—and if he was right to stop them.

Eugene Volokh, a law professor at UCLA and renowned civil liberties scholar, argued that students did not have a constitutional right to protest at Chemerinsky’s home. “When government buildings aren’t opened up for public speech, people don’t have a First Amendment [right] to give speeches there,” he wrote on his legal blog, The Volokh Conspiracy. “And that is likewise true for private homes, even when they have public law school parties hosted there.”

While some have claimed that Fisk and Chemerinsky had the authority to use “reasonable force” to eject an unwelcome guest from their home, New York University law professor Rob Howse posted on X that he believed Chemerinsky and Fisk “mishandled the situation.” Noting that not all the details were totally clear, he said: “As legal academics, we need to look at these incidents and ask what kind of response reflects good professionalism in the academy. Escalating to physical confrontation in this scenario does not, in my view.”

Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, posted on X that “the commandeering of the dinner was bound to backfire, and there’s no serious argument it was protected by the First Amendment.” Jaffer described the entire episode as “very sad,” concluding that it was “a mistake for students to vilify Chemerinsky” and that “there has to be a more constructive way of engaging with him.”

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