UCLA School of Law

Bigots try to be cagey. They use dog whistles that encode their animus. They make political pronouncements that, while superficially anodyne, signal which demographic groups are on their team—and which ones aren’t. Courts, though, aren’t readily tricked. Or at least they’re not supposed to be. Because they understand that assessing animus depends on context, they rely on legal tools—like discovery, evidence, and juries—to facilitate a searching examination of that context. So it’s surprising and distressing when, suddenly, they start missing all the telltale signs. This is precisely what’s happening in cases involving Jews.

This essay identifies, endeavors to understand, and rebuts the emerging “Anti-Zionism Exception” to anti-discrimination assessments and civil rights law. Using Torres v Carlson, a factually jarring but legally straightforward case arising out of the violent seizure of Hamilton Hall at Columbia University, we demonstrate that the court's key rulings—including that anti-Zionism can’t be discriminatory because "the Jewish community itself is divided" on the subject; that anti-Zionism can't be evidence of discrimination unless it is "inherently" discriminatory; and that anti-Zionist rhetoric can't be discriminatory because it is “political speech”-- are wrong as a matter of law and entirely out of step with how anti-discrimination principles are routinely applied to non-Jews.

Far from a jurisprudential outlier, Torres further instantiates an Anti-Zionism Exception. At a minimum, this Exception places Jews and their allies in significant peril. More broadly, though, Torres and its ilk invite an increasingly right-leaning federal judiciary to apply the courts’ parsimonious reading of Jewish civil rights laws universally, thereby eroding the rights and liberties for all.