Legislating Against BDS

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The backlash continues against the anti-Israel boycott resolution that the American Studies Association adopted last month. Over 200 university presidents have distanced themselves from it. Numerous other organizations, including the American Association of University Professors, have condemned it too. Some critics argue that it violates academic freedom. Others go further, observing that the movement to boycott, divest from and sanction (BDS) Israel amounts to discrimination against the Jewish state. Now legislators are joining the burgeoning anti-BDS movement, introducing bills to curb anti-Israel abuse. The first few efforts out of the box may be imperfect vehicles, but they have begun a necessary conversation about how public policy can best address the misuse of taxpayer funds to support BDS.

On February 6, Congressmen Peter Roskam (R-IL) and Dan Lipinski (D-IL)introduced the “Protect Academic Freedom Act” (H.R. 4009), which would ban federally funded universities from boycotting Israeli academic institutions or scholars. As they introduced the bill, the congressmen denounced the bigotry surrounding the boycott, divestment and sanctions (BDS) movement, as well as the threat which anti-Israel activists pose to academic freedom.

Representative Roskam had been justly lauded for his co-authorship of a Januaryletter, signed by 134 members of Congress, to “strongly condemn” the American Studies Association (ASA) for its recent endorsement of the academic boycott against Israel.  “While ASA has every right to express its views on policies pursued by any nation or government,” the congressmen wrote, “we believe that the decision to blacklist Israeli academic institutions for Israeli government policies with which ASA disagrees demonstrates a blatant disregard for academic freedom.” In addition, the congressmen complained that the ASA’s boycott resolution “exhibits flagrant prejudice against the Jewish State of Israel.”

While Rep. Roskam’s letter was well received, reaction to the new Roskam-Lipinski bill has been more mixed. AIPAC officials have been quoted as saying that they are “reviewing the text.” The Anti-Defamation League’s Abraham Foxman has praised the purposes of the legislation but conceded that he’s “not sure that this bill would be the most effective means of recourse.” On the other hand, several other groups support the legislation, including the Simon Wiesenthal Center, Christians United For Israel, and The Israel Project. Ambassador Michael Oren has been an effusive supporter, arguing that Roskam-Lipinski “can be the turning point in the struggle against the delegitimization of the Jewish State.”

Some groups have worried that the bill would infringe on universities’ freedom of speech. Just days before Roskam and Lipinki introduced their bill, New York assemblymen pulled a similar state bill. The New York bill, which has passed the state senate, faced opposition from civil liberties groups who argued that it violates freedom of speech. But the New York bill has subsequently been reintroduced, with softer language, and similar bills are now under consideration in other statehouses. More recently, Professor Eugene Volokh, widely respected First Amendment expert at UCLA School of Law, has largely put free speech concerns to rest. As Volokh notes, Roskam-Lipinski would not impose content- or viewpoint-restrictions on any university and is narrower than existing federal anti-discrimination laws.

In fact, the main problem with the Roskam-Lipinsky bill is not that it goes too far but rather that it does not go far enough. An effective anti-BDS law must accomplish three things. The first goal, which Roskam-Lipinski satisfies, is that it must prevent taxpayer funds from supporting anti-Israel boycotts. The point is not to prevent individuals from expressing their views but rather to prevent tax funds from being used to promote a boycott of one of America’s strongest allies. Roskam-Lipinski does so while upholding academic freedom and protecting against a resurgent form of anti-Israeli and anti-Semitic prejudice.

Second, an effective anti-boycott bill must address the “D” as well as the “B” in the BDS movement. That is to say, it must curb divestment as well as boycotts. Anti-Israel Boycotts are hardly the most dangerous aspect of the BDS movement. On American college campuses, anti-Israel activists are urging university administrators to Divest from Israeli companies, from companies that do business with Israel, or from companies that conduct business from the West Bank. An effective anti-boycott bill would prevent taxpayer funds from supporting divestments too. Roskam-Lipinksi does not do this but should.

Third, an effective anti-boycott bill must include effective enforcement mechanisms. American anti-discrimination law provides a strong tripartite approach to address most forms of discrimination: Justice department enforcement for the most serious violations, administrative remedies for run-of-the-mill cases, and private party lawsuits for when governmental agencies are unavailing.  Roskam-Lipinski, as currently drafted, provides only an administrative remedy. An effective anti-BDS bill should treat anti-Israel prejudice like other forms of bias and provide the same three enforcement approaches.

There is now tremendous energy going into the anti-BDS legislative efforts, and this is a good thing. Rather than simply supporting or opposing the initial legislative initiatives in their preliminary forms, those who care about fighting discrimination and upholding academic freedom should join this necessary dialogue about the proper role that legislatures can play. The ideal anti-BDS bill may not yet have been introduced, but the initial drafts have provoked a healthy conversation. For this, Representatives Roskam and Lipinski are owed a substantial debt of gratitude.

Kenneth L. Marcus is Founder and President of the Louis D. Brandeis Center (www.brandeiscenter.com), which combats anti-Semitism in higher education. He is also author of the newly issued LDB Best Practices Guide to Combating Campus Anti-Semitism and Anti-Israelism.

Legislating Against BDS

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Kenneth L. Marcus

Kenneth L. Marcus is President and General Counsel of the Louis D. Brandeis Center for Human Rights Under Law and author of the award-winning Jewish Identity and Civil Rights in America (New York: Cambridge University Press: 2010). Marcus founded the Brandeis Center in 2011 to combat the resurgence of anti-Semitism in American higher education. In November 2012, Marcus was named to the Forward 50, the Jewish Daily Forward's listing of the "American Jews who made the most significant impact on the news in the past year." The Forward described its 50 honorees as "the new faces of Jewish power," predicting that "if Marcus has any say in it, we may witness a new era of Jewish advocacy." During his public service career, Marcus served as Staff Director at the United States Commission on Civil Rights and was delegated the authority of Assistant Secretary of Education for Civil Rights and Assistant Secretary of Housing and Urban Development for Fair Housing and Equal Opportunity. Shortly before his departure from the Civil Rights Commission, the Wall Street Journal observed that "the Commission has rarely been better managed," and that it "deserves a medal for good governance." For his work in government, Marcus was named the first recipient of the Justice and Ethics Award for Outstanding Work in the Field of Civil Rights. Marcus also serves as Associate Editor of the Journal for the Study of Antisemitism and Vice President of the International Association for the Study of Antisemitism. Marcus previously held the Lillie and Nathan Ackerman Chair in Equality and Justice in America at the City University of New York's Bernard M. Baruch College School of Public Affairs (2008-2011) and was Chair of the Scholars for Peace in the Middle East Legal Task Force. Before entering public service, Mr. Marcus was a litigation partner in two major law firms, where he conducted complex commercial and constitutional litigation. He publishes frequently in academic journals as well as in more popular venues such as Commentary, The Weekly Standard, and The Christian Science Monitor. Mr. Marcus is a graduate of Williams College, magna cum laude, and the University of California at Berkeley School of Law.

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