by Mitchell Plitnick
Earlier this week, a bill was hastily removed from the agenda of the New York State Assembly. The bill was designed as a response to the American Studies Association’s decision to boycott Israeli educational institutions. But it was so poorly written that even opponents of the ASA boycott saw it as potentially damaging to academic freedom in general. The bill was removed from the fast track in New York so it could be re-written to be more acceptable to its potential supporters. A similar bill is currently working its way through the Maryland state legislature.
Now the US Congress is getting into the act, with a bill that has the same goal, but takes a different approach. The bills in New York and Maryland did not specifically mention Israel, although it was clear that the ASA action against Israeli academia is what prompted the bills. Instead, they tried to argue that academic freedom meant that the state must penalize institutions that choose to express themselves through the power of boycott if the target is a country that has extensive academic connections with the United States.
Even Jewish groups supported the withdrawal of the New York bill, and many people agreed that, however onerous they thought the ASA action was, this sort of legislation was contrary to academic freedom and to freedom of expression.
The bill introduced by Rep. Peter Roskam (R-IL) relates only to academic boycotts against Israel. Where the state bills proscribed penalties, including a reduction of funding against any institution that participated in an association that called for a boycott and even prohibited reimbursing faculty for travel expenses to attend conferences by such groups, the congressional one threatens to cut off all funding under the Higher Education Act to any university “…if the institution, any significant part of the institution, or any organization significantly funded by the institution adopts a policy or resolution, issues a statement, or otherwise formally establishes the restriction of discourse, cooperation, exchange, or any other involvement with academic institutions or scholars on the basis of the connection of such institutions or such scholars to the State of Israel.”
That is a very broad statement. “Significantly funding,” read broadly, can easily include not only institutional support of academic associations like ASA, but also student groups, fraternities/sororities and research collectives. So, this is very far from affecting only universities.
This goes well beyond boycotts. It bars any group attached in any way to a university or group of universities from any material reaction, beyond voicing criticism, to Israel’s policies. Nor does it make any distinction between Israel and the settlements. That means that no institution of higher education can object in any material way to an association or connection to Ariel University, a fully accredited Israeli university located in the settlement of Ariel. That institution is highly controversial within Israel, and its very establishment contravenes US policy, yet a student group which is funded by a university would risk the university’s federal funding, all of it, if they refuse to work with that school.
Moreover, the fact that Roskam’s bill is specific to Israel is particularly noxious, and should be a matter of deep concern for anyone who supports Israel or who is concerned about anti-Semitism, as well as to those of us who support Palestinian rights and the right of American citizens to free expression. The bill creates a unique category of protection for Israel, based on Roskam’s wholly unfounded assertion that the ASA boycott decision is an “anti-Semitic effort.”
I, myself, do not agree with academic boycotts of Israel as a whole (boycotts targeting Ariel University and any other settlement program have my full support). That is a matter of tactics, however. My disagreement is based entirely on my view that an academic boycott of all of Israel is counter-productive at this time. But there is no reasonable basis for contending that a boycott against a country that has held millions of Palestinians under a military occupation depriving them of their civil rights and routinely violating their human rights is motivated by anything other than the policies of the occupying power.
By singling out Israel for this “protection,” the Roskam bill, not the ASA, is treating Israel as a special case rather than a country like any other, which must contend with material as well as rhetorical opposition to its policies. Basing it on Israel being a “Jewish state” serves not only to undermine the Jewish effort to be accepted like any other people, but actually promotes resentment and hostility toward Jews.
Roskam’s bill is blatantly unconstitutional, as are the various bills in the state legislatures, although the state versions are slightly less onerous and blatant in their disregard of the Constitution. Boycotts are legal and legitimate expressions protected under the First Amendment. The argument will be made that the state does not have to fund such activities, which is true, but there is a big difference between not funding legitimate free expression and state interference with it. As one constitutional lawyer, Floyd Abrams, told BuzzFeed: “The notion that the power to fund colleges and their faculties may be transformed into a tool to punish them for engaging in constitutionally protected expression is contrary to any notion of academic freedom and to core First Amendment principles. I believe that academic boycotts are themselves contrary to principles of academic freedom but that does not make the legislation being considered any more tolerable or constitutional.”
The bill is probably not going to be successful in Congress. The efforts have a much better chance in the state legislatures. Still, it was brought forth by Roskam, and his Illinois colleague Dan Lipinski, a Democrat, was an initial co-sponsor, so the bill is ostensibly bi-partisan. It also came with the support of Israel’s former Ambassador to the US, Michael Oren. So it should not be blithely dismissed despite its blatant unconstitutionality.
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