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Politics Over Freedom, Again

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Only a few weeks ago college and university presidents were falling over themselves to be the loudest (if not among the first) to denounce the American Studies Association's academic boycott of Israel. Upon hearing their claims that the boycott infringed upon both American and Israeli scholars' rights to communicate and work with each other, travel to the US or Israel, even teach together, it was obvious these academic leaders had not read the resolution. The resolution places no restrictions on its individual members from so doing; individuals are free to pursue any relations they wish with their Israeli counterparts, period. Also, the resolution is also decidedly not anti-Semitic, another charge that has been leveled against it. It is a protest against specific state practices, not against a people. The ASA Statement on the Resolution unambiguously declares:

"Our resolution understands boycott as limited to a refusal on the part of the Association in its official capacities to enter into formal collaborations with Israeli academic institutions, or with scholars who are expressly serving as representatives or ambassadors of those institutions, or on behalf of the Israeli government, until Israel ceases to violate human rights and international law.

The resolution does not apply to individual Israeli scholars engaged in ordinary forms of academic exchange, including conference presentations, public lectures at campuses, or collaboration on research and publication. The Council also recognizes that individual members will act according to their convictions on these complex matters."

As time went on, it became clear that the real cause for these presidents' concern was that it was not just any country whose academic institutions were being boycotted, it was Israel's. Indeed, one of the most common criticisms of the boycott is that it singles out Israel. Disappeared from view is the fact that the boycott was called for by more than 200 civil organizations in Palestine as a nonviolent and legal form of protest against the state that so happens to be discriminating against Palestinians -- Israel. And Israel is feeling the effects of these boycotts, criticisms, and acts of protest more now than ever.

Political leaders in Israel themselves acknowledge that protests against the Occupation are growing, the most recent and dramatic being the decision by PGGM, the Netherlands' largest pension fund management company, to "withdraw all its investments from Israel's five largest banks because they have branches in the West Bank and/or are involved in financing construction in the settlements." Haaretz's report goes on to say:

"PGGM told the banks its opinion was based on an advisory opinion issued by the International Court of Justice in The Hague in 2004, which said that settlements in occupied Palestinian territory are illegal and violate Article 49 of the Fourth Geneva Convention. That article states that 'The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.'"

What is of concern to many defenders of Israel's policies is that, even if still not on such a scale as in Europe, protests are spreading in a country that heretofore has been relatively silent on such matters. The fact that one of the founders of the Boycotts, Divestment and Sanctions movement, Omar Barghouti, got space in the New York Times for a lengthy and acute opinion piece this Sunday, titled "Why the Boycott Scares Israel," is evidence of the fact that the votes of academic organizations such as the American Studies Association and the Modern Language Association to protest Israeli policies toward academics are having effects beyond academia -- the effects of these acts are now reflected in the American public media in unprecedented ways.

Precisely because of this politicians are stepping into this debate. This past Tuesday, January 28, the NY State Senate overwhelmingly passed a bill targeting the American Studies Association (ASA). Although the bill has been withdrawn for revision, in its present state it prohibit publics universities and colleges from using any taxpayer money on groups that support boycotts of Israel. For instance, such funds could not be used for travel or lodging for a faculty member attending a meeting of a group that supports a boycott of Israel. Just as dangerous, this law will lay the groundwork for other attempts to silence debate and opposition on other controversial issues.

Maryland Senate Bill 647 is of a similar nature. It declares that "it is the policy of the state that public colleges and universities not use funds to directly or indirectly support academic boycotts of other countries that have ratified declarations of cooperation with the state or institutions of higher education in those countries." Public institutions of higher education in the state may not use funds, including general funds, to provide for membership fees or travel to participate in events sponsored by organizations involved in a boycott.

According to NY State Senator Jeffrey Klein, chief proponent of the New York legislation:

"We need to marginalize the politics of intolerance whenever it rears its ugly head. I will not allow the enemies of Israel or the Jewish people to gain an inch in New York. The First Amendment protects every organization's right to speak, but it never requires taxpayers to foot the bill."

This passionate and ringing defense of Israel will certainly face one significant obstacle. Klein's legislation, and the Maryland bill, is in fact in violation of the law.

Dima Khalidi of Palestine Solidarity Legal Support and Cooperating Counsel with the Center for Constitutional Rights asserts that the First Amendment

"prohibits public officials from denying public benefits as a way of censoring speech activities. These bills clearly aim to discourage expressive activities such as boycotts based on the legislators' personal disagreement with the content of the expression. Painting the ASA boycott resolution as discriminatory is not only inaccurate, but also distracts from the fact that its purpose is in fact to protest the human rights violations for which Israel is responsible, and the discriminatory policies and practices of the Israeli government. These bills would be both a violation of free speech and academic freedom, which the proposed legislation cynically purports to defend."

One would hope those legislators jumping on the bandwagon, unlike those college presidents all too willing to bypass their scholarly obligation to actually read carefully the resolution they were protesting, would know that these measures are unconstitutional. But perhaps their point is not so much to create law as it is to grab the limelight and to intimidate and harass those who are in fact exercising their free speech rights.

Ironically, Klein's argument for this bill is that it is anti-discrimination: "This legislation sends a very simple message, which is that we should never ask taxpayers to support religious, ethnic, or racial discrimination. We need to marginalize the politics of intolerance whenever it rears its ugly head."

Indeed, his bill makes allowances for certain states to be boycotted on that very laudable basis:

"The bill also contains three exemptions in which the provisions of this bill would not apply to colleges: located in a foreign country that is a state sponsor of terrorism, when the boycott is connected with a labor dispute, or when the boycott is for the purpose of protesting unlawful discriminatory practices."

In that case, it would seem at least a point of debate as to whether or not Israel in fact may be a legitimate target for boycott (and we will have to see what the revised legislation looks like -- perhaps this language will be removed precisely because of the way it opens the door to such scrutiny). In 2011 the Institute for Middle East Understanding listed several examples of discrimination against Palestinians: There are more than 30 laws that discriminate against Palestinian citizens of Israel, directly or indirectly, based solely on their ethnicity, rendering them second- or third-class citizens in their own homeland. Ninety-three percent of the land in Israel is owned either by the state or by quasi-governmental agencies, such as the Jewish National Fund, that discriminate against non-Jews. Palestinian citizens of Israel face significant legal obstacles in gaining access to this land for agriculture, residence, or commercial development. More than 70 Palestinian villages and communities in Israel, some of which pre-date the establishment of the state, are unrecognized by the government, receive no services, and are not even listed on official maps. Many other towns with a majority Palestinian population lack basic services and receive significantly less government funding than do majority-Jewish towns.

In 2009 the US State Department noted that:

"Some individuals and groups committed abusive and discriminatory practices against Israeli-Arab Muslims, evangelical Christians, and Messianic Jews at the same elevated level cited in the 2008 International Religious Freedom Report. Relations among religious and ethnic groups--between Jews and non-Jews, Muslims and Christians, Arabs and non-Arabs, secular and religious Jews, and among the different streams of Judaism--often were strained during the reporting period. This was due primarily to the continuing Israeli-Palestinian conflict and the Government's unequal treatment of non-Orthodox Jews, including the Government's recognition of only Orthodox Jewish religious authorities in personal and some civil status matters concerning Jews.

Members of unrecognized religious groups, particularly evangelical Christians, faced problems in obtaining marriage certifications or burial services that are similar to the problems faced by Jews who were not considered Jewish by the Orthodox establishment. Informal arrangements with other recognized religious groups provide relief in some cases."

Reports such as these are open to debate, certainly. And in many of these cases this discrimination is indeed lawful. And that is the problem. One of the primary reasons for the academic boycott against Israel is to shed light on the profound ways that discrimination against Palestinians is in many cases perfectly legal under Israeli state law. This fact should then lead those who are concerned about discrimination on the basis of religion, race or ethnicity to consider whether or not one would like to associate with a state that created and perpetuates such discrimination. The ASA decided, no. And that is why this debate is worth having and why the ASA boycott scrupulously insists on leaving the door open to scholar-to-scholar interactions so that the conversation can go on. However, bills such as Klein's, while touting a commitment to "anti-discrimination," unlawfully discriminate against those who are exercising their academic and legal rights.

Now the easy rebuttal is to say, well the ASA and others are just getting back what they dished out. No. The boycott called for by the ASA does not prohibit entertaining or even sponsoring Israeli scholars, so long as they are not explicitly acting as representatives of state institutions. As a matter of fact the American Studies Association has created a fund precisely to bring both Israeli and Palestinian scholars to its convention. It is being consistent in word and deed. Bills like Klein's say one thing and do two other things. They declare themselves for freedom when stifling legal acts of protest, and stifling debate about where discrimination exists.