Campus BDS and the law: First, do no harm

As a teenager I was riveted to the television coverage of the Chicago Conspiracy trial: the government’s attempt to convict Vietnam-era anti-War protestors. Defense attorney Bill Kunstler used the courtroom as political theater, and put the system – and the war – on trial. 

Over the decades, I’ve been involved in legal cases that have also, in much smaller ways, used law to advance political or social change. I helped one of the last Vietnam-era protestors, organizations for the homeless, American Indian Movement leaders, and academic and author Deborah Lipstadt, in her libel defense against Holocaust denier David Irving.

When you bring a political legal case the Hippocratic oath applies as strongly to lawyers as to doctors: first do no harm. Recent lawsuits against anti-Israel campus activities and boycotts violate that rule.

In late 2013 the American Studies Association adopted a boycott resolution, proclaiming that it “endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions.” Some members, who opposed the resolution, recently filed suit against the ASA, saying the boycott was illegal. Make no mistake – the ASA resolution was abominable and a direct assault on academic freedom. But this lawsuit is an ill-advised idea.

The case is predicated on two things: a claim that the passing of the resolution wasn’t according to ASA’s procedures, and an assertion that it was not authorized by the ASA charter (or “ultra vires” in legal terms).

The claim about bad procedure is dubious, but let’s assume it wins. The remedy would be to redo the vote. Is there any doubt what the outcome would be, especially as many who opposed the boycott have left the ASA? And why would anyone want to give free publicity to anti-Israel boycotters as they litigate a lawsuit, revote, and then re-affirm their position?

The ultra vires claim is even weaker, and more troubling. The purpose of the ASA was to strengthen “relations among persons and institutions in this country and abroad . . . to the study of American culture.” As Northwestern University Law Professor Steven Lubet points out, the ASA could claim that endorsing a Palestinian academic boycott will help in “many more countries than it will [hurt].” The plaintiffs are asking courts to second guess the actions of a non-profit, using a very restrictive analysis. Under this approach, what would stop supporters of Jewish organizations from suing those groups, whose charters promote human rights, complaining about positions they perceive as antagonistic to Palestinian human rights?

Lubet also notes, “The last thing Israel needs is to be associated with the restraint of academic freedom. Like it or not, a boycott is a form of expressive conduct. Suing to enjoin a boycott would therefore be seen as limiting the speech rights of the association.” Of course, not all boycotts are legal (some “secondary boycotts,” Arab states boycotting Israel, etc.). Yet under the U.S. Supreme Court case NAACP v. Clairborne Hardware Company, non-violent boycotts designed to bring about “political, social, and economic change” are constitutionally protected – and the case filed against the ASA does not allege otherwise. ASA members have the right to speech and association, and pro-Israel forces should be trying to win the debate, or if they can’t, they should create or join other groups.

This is just the latest in a series of ill-advised attempts – legal and political – to silence anti-Israel statements on college campuses and in academic associations.

In the last years we’ve seen failed lawsuits against a number of universities alleging violations of Title VI of the Civil Rights Act of 1964, which prohibits discrimination and a pervasively hostile environment on campus. The differences between these complaints and the successful one I brought on behalf of Jewish high school students in the Binghamton, NY area, are twofold: 1) the high school students were targeted simply because they were Jewish, whereas the losing cases grew largely out of heated debates about Israel and Palestine; 2) the high school students only objected to harassing and intimidating acts – threats, assaults, etc. – whereas the losing cases (which also included allegations of unprotected acts, such as spitting) were saturated with laments about political speech. 

Among the failed allegations: the school had a program about “the Occupation,” that a film, followed by a discussion, was “propaganda” which caused Jewish students to feel harassed and intimidated, that a professor used a class for indoctrination since “three of the articles in the recommended texts were not only unambiguously one-sided and anti-Israel, but contained material defined as antisemitic by the US. State Department,” that a program “Arabs and the Holocaust” claimed that the creation of Israel was a “tragedy” for Palestinian Arabs, that professor Norman Finkelstein was invited to speak.

Rather than bemoaning and trying to censor such political speech, Jewish students and parents ought to value the opportunity for learning. There is no better or safer place for students to grapple with ideas such as these that they are sure to hear after they graduate. A college education is supposed to make students uncomfortable and shake up their thinking. 

James O. Freedman, the late president of Dartmouth, stressed that any campus-based effort, legal or otherwise, has to have academic freedom as a tail wind. Strategies that have to explain away academic freedom, or worse diminish it, are inherently counterproductive. They bring academics who don’t care about the issue at hand into active opposition, and transform the debate into one about free speech.

Former University of Michigan Hillel Director Michael Brooks says that Jews lose when they make the issue about Jews, rather than about the university. Like Freedman, he stresses the importance of academic freedom.

Here’s an example of what they mean. In 2007 when a UK academic union voted in favor of the idea of an academic boycott of Israel, some U.S. Jewish leaders had this tone-deaf reaction: if the UK was going to boycott Israeli academics, they’d boycott British academics in return. Cooler heads prevailed, noting that the best argument against academic boycotts is that they are anathema to the educational process – ideas must be evaluated on their merit, not on the nationality of their author. By threatening a reverse boycott, our best argument would have been abandoned, and the debate transformed into a question of who should be boycotted. 

If a reverse boycott had been organized, no American university president would have endorsed that idea, because no university president is in favor of boycotting scholars. Instead, underscoring the importance of academic freedom, over 400 American college and university presidents blasted the UK union, saying its action undermined the purpose of the university by dividing the academic world in two: Israelis who should be shunned, and everyone else. If they were intent on this strategy, the presidents said, then they should view American universities as if they were Israeli, and boycott them too.

We’re now making the legal and political mistakes we almost made in 2007 – undermining academic freedom instead of promoting it.

One problem with academic boycotts is that they are blacklists. We should be saying that blacklisting professors is anathema. Yet some legal and political responses from the Jewish community are creating blacklists too.

Canary Mission, Campus Watch and other such groups compile lists and profiles of alleged anti-Israel professors, based on their political statements, course material, and social media postings. While these groups have the right to criticize the speech of anyone, their online activities are meant to target students and faculty, rather than to debate them. The only relevant question should be this: does a professor treat students differently depending on their identity or political view? Lists based on politics, as opposed to individual allegations of bad teaching, are blacklists. Not satisfied with blacklisting faculty, some of these groups – especially Canary Mission – are blacklisting students too, threatening their future livelihood.

The Boycott/Divestment/Sanctions (BDS) movement thrives in a binary universe, where one side is seen as good and just and the other as evil and wrong. Instead of trying to break down that construct, these Jewish groups are adding to it, and thus helping the anti-Israel groups grow.

It saddens me to say, but some on the pro-Israel side have become as intolerant of free speech and academic freedom as many on the anti-Israel side. Each sides says the other is the more serious transgressor, but both have been guilty of harassment and intimidation, as well as attempts to limit who speaks on campus, who gets campus funding, and who gets to speak with whom. “Anti-normalization” restrictions from the pro-Palestinian camp, and the guidelines from Hillel prohibiting joint programming with perceived anti-Israel groups, are mirror images. Both are efforts to deny college students the ability to interact intellectually with people who don’t already think as they do. 

Some pro-Palestinian advocates say academic freedom is important, but not as important as standing up for Palestinian rights in general, and those of Palestinian academics in particular. So they have boycotted Israeli academics, disrupted pro-Israel speakers, judged/recruited/and interacted with faculty based not on scholarship, but on their Israel/Palestine politics, refused to participate in “normal” academic work (like accepting journal articles from Israelis, or participating in peer reviews) and even questioned whether a Jewish student was fit to participate in student government based on her ethnicity and campus affiliations.

Some in the Jewish community say that academic freedom is important, but not as important as opposing antisemitism. Thus they have advocated universities adopt the Department of State Definition of Antisemitism, to help identify what political speech should be considered bigoted (a de facto speech code based on a definition never intended for campus use); encouraged spying on faculty; and presuming that a faculty member’s politics somehow renders them incapable of evaluating students’ work based on merits, rather than political position. On top of all this, they have brought and threatened lawsuits complaining about political speech. Essentially, the pro-Israel community is perceived to be saying it can’t win the debate on the merits, but instead has to try and shut down the other side.

Proponents of the ASA and Title VI litigation say that they are following in the tradition of Brown v. Board of Education and the cases that allowed gay and lesbian Americans the right to marry.

This analogy is misplaced. If there were a clear case of discrimination against an academic based on a boycott resolution (this might indeed occur – but significantly is not alleged in the ASA case), then a lawsuit might well be warranted, both legally and politically. But these cases are nothing of the sort.

Cases like these, which complain about speech or association, can backfire in spectacular ways. A few years ago a British academic named Ronnie Frasier brought a legal action against the UK’s University and College Union, asserting it was institutionally antisemitic, in part because it had refused to adopt a definition of antisemitism.

The case was dismissed, and the written opinion was stinging: “We are troubled by the implications of the claim. Underlying it we sense a worrying disregard for pluralism, tolerance and freedom of expression, principles which the courts and tribunals are, and must be, vigilant to protect. . . . Lessons should be learned from this sorry saga. We greatly regret that the case was ever brought. It would be very unfortunate if an exercise of this sort were ever repeated.”

Perhaps worse than the specter of such political losses is the “black hole” effect of law: by advocating a supposed legal remedy, better, non-legal, responses are ignored. Instead of hoping judges will somehow take air out of academic BDS efforts (which, by the way, have not resulted in a single university divesting from Israel, despite over 14 years of efforts), we ought to deepen the discussion on campus, by focusing on education.

If, as some allege, there is a whiff or more of antisemitism in the BDS debate, why  are there only a handful of full-semester college courses on antisemitism globally? Why are there not more classes that force students to wrestle deeply with the seemingly intractable conflict between Israelis and Palestinians, encouraging them to understand the conflict from the varied perspectives of all sides, and in creative ways? 

More fundamentally, why are there not more classes and initiatives on college campuses to help students learn what happens to human beings and their thinking when they have a sense of identity wrapped up in an issue of perceived social justice, whether it is abortion or immigration or the Israel/Palestine conflict? Campus advocates on each side of the Israel/Palestine conflict tend to think they are standing up for justice while the other side is blind to dehumanization and hatred. But try finding an interdisciplinary course on hatred on any campus today.

The campus, at its best, ought to be a place where students have to figure out how to think about ideas they might detest, rather than a substitute battleground for a fight thousands of miles away. The Israel/Palestine conflict should be an ideal issue for innovative academic inquiry – in psychology, social psychology, history, religion, philosophy and many other areas.

By trying to use law to limit what it said on campus and in academic associations, we are hurting the academy. Perhaps, most of all, we are harming Jewish students when we try to protect them from ideas.

Kenneth S. Stern is the Executive Director of the Justus & Karin Rosenberg Foundation.