Governing Against BDS

Students and faculty members are usually the most active participants in campus discussions about the boycott, divestment and sanctions movement against Israel. A new report that’s highly critical of the boycott campaign argues that governing boards must also play a role in such discussions and ultimately act as a backstop for academic freedom. While the report has some early supporters, some academic opponents of BDS say its recommendations may do more harm than good.

“Campus Free Speech, Academic Freedom and the Problem of the BDS Movement,” released today by the American Council for Trustees and Alumni, describes the boycott as “one of the greatest threats to academic freedom in the U.S. today,” and governing board members as “protectors” of their institutions’ “core values.”

ACTA is neutral on the Israeli-Palestinian conflict and advises boards to remain so. Indeed, its new report says that the university “is pre-eminently the appropriate place to raise and debate opinions on such contested issues as the two-state solution, the borders of the state of Israel, the status of Jerusalem and the behavior of the nations in conflict.” But in recent years, it says, says the “anti-Israel movement has encouraged an increasing number of flagrant violations of academic freedom and free expression.”

Both faculty members and students feel BDS’s impact, the report says, and it merits the “careful attention of trustees, policymakers and the academic community at large. At stake is nothing less than the integrity of American higher education.”

Much of the report is an overview of numerous on-campus incidents related to the Israeli-Palestinian debate with implications for academic freedom, such as when protesters at the University of Minnesota attempted to shout down invited speaker Moshe Halbertal, Gruss Professor of Law at the New York University and a professor of Jewish thought and philosophy at Hebrew University, in 2015. ACTA praises the Modern Language and American Historical Associations for voting down BDS-related resolutions and criticizes the “politicization” of professional associations that have taken steps to support the boycott. Those include the National Women’s Studies Association, the Association for Asian American Studies and the American Studies Association.

The report raises concerns voiced elsewhere that some anti-Israel rhetoric bleeds into anti-Semitism, and it questions why Israel, among other nations accused of human rights violations, has been singled out for the boycott. It notes, for example, that Rachel Beyda, who was applying for a judicial position on the student council at the University of California, Los Angeles in 2015, was asked by certain members whether she’d be able to remain “unbiased” in her role because she was Jewish and involved in Jewish groups.

With regard to board members, ACTA says that trustees increasingly are lobbied by BDS supporters, such as when some 500 students and faculty members at Harvard University and the Massachusetts Institute of Technology petitioned their universities to divest stock in companies that did business in Israel, in 2002.

“These are hardly isolated attempts,” the report says. “In the 2014-15 academic year alone, at least 19 resolutions or referendums were considered on college campuses. … As a trustee, you will need to be ready to respond articulately and firmly to inappropriate pressure to change the manner in which your school’s endowment is invested or the companies with which it conducts business.” No American college has actually divested, and many resolutions are by student groups that have no control over endowments.

ACTA also warns that disorderly conduct, anti-Semitic vandalism or physical assault related to the BDS may expose a university to liability, and that limiting contact with Israeli academics and institutions could impede scientific progress.

To these ends, ACTA advises governing boards to:

• Establish clear First Amendment policies, ensuring “that there are robust and highly publicized policies in place governing free speech. Define the boundaries between protest and disruption and establish severe sanctions for heckling invited speakers or preventing other students from attending scheduled events.”
• Look to national best practices concerning free expression, such as the University of Chicago principles of freedom of expression.
• Protect the institution’s political neutrality.
• Review the institution’s antidiscrimination policies. “While scrupulously protecting freedom of speech, including what Justice [Oliver Wendell] Holmes called ‘freedom for the thought we hate,’ exercise your own freedom to condemn anti-Semitism and bigotry in all of its forms.”
• While respecting academic freedom, “work with the president and provost to encourage departments and centers that address Middle Eastern affairs to ensure intellectually diverse views across a range of scholarly opinion.”

Mark G. Yudof, professor emeritus of law at the University of California, Berkeley, and former president of the University of California, called ACTA’s analysis “superb” and a “reliable reference work for governing boards.” Others were less complimentary.

“Is there anything beneficial about this report? That’s a tough question,” said Hans-Joerg Tiede, associate secretary of tenure, academic freedom and governance at the American Association of University Professors. The organization opposes boycotts as incompatible with academic freedom, but Tiede said he had several concerns with ACTA’s take. From AAUP’s point of view, he said, other dynamics pose a much greater, more immediate threat to academic freedom — most of all recent political and legislative attacks on tenure, curricula and funding for higher education. Perhaps most importantly, he said, asking a board to safeguard academic freedom — especially by “ensuring intellectually diverse views” — poses risks to academics freedom. Faculty members, in consultation with their administrations, are best suited to such tasks, Tiede said, while boards may or may not offer final approval.

Cary Nelson, a professor emeritus of English at the University of Illinois at Urbana-Champaign who has vocally opposed BDS, also criticized ACTA’s recommendations, saying via email that they “cross the line in themselves threatening academic freedom, namely by asking administrators and governing boards to ensure that departmental curricula offer balanced views of the state of Israel and the Israeli-Palestinian conflict.” Both individual faculty and entire departments can teach from a particular political point of view if they choose, he said, “so long as they welcome dissenting student opinion.”

Nelson said institutional responsibility lies only in “assuring that diverse political views obtain across the campus curriculum as a whole.” So if a given department “castigates Israel as an undemocratic settler-colonialist state,” he added, “the administration should fund faculty appointments and courses in interested departments elsewhere that present a different view.”

Perhaps more predictably, proponents of BDS also were critical of the report.

Rahul Saksena, a staff attorney at the nonprofit Palestine Legal, said that any “reasonable reading” of the report will see a “fundamental flaw in its assertion, on the one hand, that BDS undermines free speech and academic freedom, while endorsing, on the other hand, administrative efforts to thwart BDS activities and unconstitutional legislative efforts to censor Palestinian human rights advocacy.”

Bruce Robbins, Old Dominion Foundation Professor in the Humanities at Columbia University and a leader of the ultimately unsuccessful BDS effort within the MLA, quoted ACTA’s statement that academic freedom is at times “uncomfortable and in tension with other important campus values.” In this case, he said, some of that discomfort comes from “the fact that Israel has for so long and so grossly denied academic freedom to Palestinians in the West Bank and Gaza. How can this not count heavily in the balance for anyone trying to be truly fair on the issue?”

Michael Poliakoff, ACTA’s president, in an interview underscored the report’s point that numerous other countries, including, for example, Turkey, have in recent years been accused of egregious violations of academic freedom and human rights (and yet there is no movement to boycott Turkey). So the singling out of Israel suggests something untoward about BDS, he said.

Over all, Poliakoff said, the report is in keeping with the longtime values of the academy and ACTA’s position that trustees are fiduciaries who are not only responsible for their institutions’ financial well-being “but also responsible for academic freedom and the delivery of a high-quality education.” Inasmuch as BDS efforts hinder those aims, he said, “these are issues that trustees need to address.”