In defense of the academic boycott

IN DECEMBER 2013, the governing body of the American Studies Association (ASA) voted unanimously to boycott Israeli educational institutions. The ASA membership then endorsed the resolution by a 2:1 vote. The resolution's rationale was that Israeli universities play a central part in Israel's violations of Palestinians' human rights. It excludes individual scholars from the boycott and is nonbinding.

Many colleges and universities have responded with harsh official condemnations of the ASA resolution, claiming to speak for the academy, but without prior campus debate or input from their faculties. A small number have unilaterally withdrawn their institutional ASA memberships, without input from or prior request for such withdrawals by their American Studies faculty. They have rationalized these unilateral administrative actions as principled rejections of a perceived affront to academic freedom.

We write to state the case for the real interests at stake in the controversy over the ASA's adoption of its boycott resolution. The issues include the right of faculty to associate together in professional organizations and to take positions on important human rights issues as members of such organizations, without coercive administrative interference or countermanding actions.

Academic freedom has been the protective mantle for the robust exchange of views and creative expression. Yet now, some university administrators are wielding the term to stifle collective and peaceful opposition to a long and worsening human and political crisis.

Contrary to the positions taken by some university administrators, the significant threat to academic freedom and to free speech and association rights does not come from the ASA's nonbinding academic boycott resolution. It comes from official university responses that communicate intolerance for and in some cases an intent to quash controversial views on the human rights issues underlying the boycott resolution and to expressions of support for principled protests against widely documented human rights abuses by the Israeli government. In a rush to dissociate themselves from the boycott resolution, some schools have trampled academic freedom, while purportedly defending it.

A viewpoint announced by a university as its official position on an important matter of public concern, in the name of academic freedom but without the discussion and debate that characterizes a healthy campus environment, or even a nod to the rationale of the rejected opposing perspective, deforms the concept of academic freedom.

A CRUCIAL aspect of academic freedom is the right of faculty to associate together in academic organizations and to state their views on matters of public concern through those organizations, thereby demonstrating the strength of scholarly support for a controversial viewpoint. When an academic institution condemns such speech, or withdraws its institutional membership in an academic organization based on its stated views on a matter of public concern, without campus debate or honoring its own administrative protocol, such action violates academic freedom.

A recent AAUP [American Association of University Professors] statement summarizes well this perversion of academic freedom principles:

[I]t is "the right of individual faculty members or groups of academics not to cooperate with other individual faculty members or academic institutions with whom or with which they disagree." Academic freedom is meaningless if it does not protect those who support unpopular positions, including the advocacy of academic boycotts. We urge opponents of academic boycotts to engage boycott advocates in dialogue, rather than seek to impose inappropriate restrictions on their activities that violate principles of academic freedom.

Similarly, in a strongly worded editorial, the New York Times has criticized the New York Legislature's attempt to punish universities that fund ASA chapters on their campuses, as "an ill-considered response to the American Studies Association resolution [that] would trample on academic freedoms and chill free speech and dissent."

In contrast to the institutional rush to judgment by some universities, without institutional debate, the ASA resolution itself culminated six years of membership discussion, including a full year of debate within its governing body about the language of the proposed resolution. Although not required to do so, ASA's National Council agreed to hold a full membership vote on the resolution. Sixty-six percent of the voting members endorsed it. The resolution compels no action by those who disagree with it, even within ASA's own membership ranks. The process presents a model for democratic decision-making by organizations on controversial issues.

Official intolerance for controversial views also has repeatedly run afoul of the First Amendment. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." (West Virginia Bd. of Ed. v. Barnette) An attempt by university officials to repress or penalize political speech because they disagree with its message, whether through institutional condemnation, threats, or funding restrictions, is impermissible "viewpoint discrimination," a serious First Amendment violation. (Snyder v. Phelps)

THE ASA boycott resolution is part of the movement for Boycott, Divestment, and Sanctions ("BDS"), which calls for traditional grassroots forms of peaceful protest against Israel's military occupation of the Palestinian territories, now in its 47th year. The boycott is one of the few peaceful options available to individuals to press collectively for social change and human rights. It has a distinguished history in this country. The United States is itself a product of a colonial boycott against British, Irish, and West Indian goods, issued by the First Continental Congress in an effort to avoid war, and influence British lawmakers and public opinion. The California grape boycott in the late 1960s compelled employers to negotiate fair wages with Cesar Chavez and the United Farm Workers. The civil rights movement included multiple forms of boycott that led eventually to the demise of Jim Crow. The U.S. boycott against South Africa was a crucial aspect of the movement that brought down South African apartheid. Countless other examples abound.

The U.S. Supreme Court has recognized the right to advocate and implement human rights and other boycotts for social change as having "always rested on the highest rung of the hierarchy of First Amendment values." (NAACP v. Claiborne Hardware)

Yet, as this movement gains strength in the U.S., students and faculty who express support for BDS, or merely criticize Israeli policies and practices, are being branded as anti-Semites, and official student organizations such as Students for Justice in Palestine and the Muslim Students Association are being maligned as potentially disloyal to U.S. interests and laws. These accusations, and fearful anticipation of them, chill activism by students and faculty as well as faculty guidance. Foreshadowing the rise of a new McCarthyism, they are the real threats to campus free speech, free association, and academic freedom.

The issue is not whether one agrees or disagrees that the ASA resolution strikes the proper balance on academic freedom. Rather, the issue is whether college and university communities and scholarly organizations should remain free to express their views on matters of public concern and, if they choose, to act lawfully to implement them by a call to boycott.

The post-WWII McCarthy Era was a dark time, when anti-communist orthodoxy on campuses was aggressively promoted. That fearful era taught us important lessons, and the Supreme Court eventually held that efforts to compel orthodoxy in political expression on campus was unconstitutional. (Keyishian v. Board of Regents) The response by academia to the ASA resolution offers either a sad occasion to relive that era or a liberating one to apply those lessons by honoring the principles of academic freedom--teaching, by modeling, democracy, tolerance, and the courage to dissent.

We urge all U.S. colleges and universities to reject academic censorship clothed as academic freedom. We ask you to review any plans you may be contemplating, in light of the serious constitutional and academic freedom problems presented. We urge you to rescind any threats, explicit or implicit, public or private, you may have made against your faculty members for belonging to the ASA or supporting its resolution. We especially ask you to vitiate the chilling effects of official condemnations made without campus debate, by affirmatively encouraging such debate and clarifying your openness to it. And we respectfully ask our institutions of higher education, public and private, to reaffirm your commitment to departmental and individual faculty autonomy and academic freedom.

Azadeh Shahshahani, President, National Lawyers Guild
Rebecca Vilkomerson, Executive Director, Jewish Voices for Peace
Dima Khalidi, Director, Palestine Solidarity Legal Support
Hatem Abudayyeh, member, National Coordinating Committee, U.S. Palestine Community Network
Suzanne Adely and Lamis Deek, Al Awda-NY
Zahra Billoo, Executive Director, Council on American-Islamic Relations - California
Baher Azmy, Legal Director, Center for Constitutional Rights
National Students for Justice in Palestine
Kathryn J. Johnson, Interim Executive Director, U.S. Campaign to End the Israeli Occupation
American Muslims for Palestine