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New York State's Attempt To Punish Academic Institutions That Favor BDS

Submitted by Robin Messing on Sun, 02/16/2014 - 8:41am

On January 28, 2014, The New York State Senate overwhelmingly passed a bill that would cut all state funding to any university whose faculty used taxpayer money to attend American Studies Association (ASA) meetings or seminars or to pay for membership in the American Studies Associaton.  Why would the State Senate do this?  It seems like an unthinkable slap at academia considering the ASA is "the nation's oldes and largest association devoted to the interdisciplinary study of American culture and history"?  

If you guessed it had something to do with Israel, you guessed right.  The The American Studies Association announced a boycott of Israeli Academic Institutions tn December  to protest Israel's occupation and illegal settlements in the West Bank, and supporters of Israel were hitting back.  The following excerpt from an emergency email sent out by Jewish Voice For Peace discusses the bill and its ramifications:


If this becomes law it would prohibit public 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.   A similar bill is quickly moving through the process in the NY State Assembly...we must act now to stop it!

The Higher Education Committee of the NY State Assembly is scheduled to discuss their version of this legislation this coming Monday, Feb. 3rd. If they pass it out of committee it could go to the full Assembly for a vote 3 days from that. And since Assembly Speaker Sheldon Silver introduced the Assembly bill we can assume he will move to a vote immediately.

According to NY State Senator Klein, chief proponent of the 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 in inch in New York. The First Amendment protects every organization's right to speak, but it never requites taxpayers to foot the bill."

The reality is that this legislation is a direct assault on our First Amendment right to freely and openly speak our minds in opposition to the policies of any government, including the Israeli government. Imagine if legislation like this was passed during the struggle to end apartheid in South Africa!

According to Dima Khalidi of Palestine Solidarity Legal Support and Cooperating Counsel with the Center for Constitutional Rights,  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." . . .

---------------------------------------     TALKING POINTS RE: NYS ANTI-BOYCOTT LEGISLATION
Jan. 31, 2014
What the Legislation Passed by the NY State Senate Says
"No college in this state may use state aid provided directly to such college to: fund an academic entity, provide funds for membership in an academic entity or fund travel or  lodging for any employee to attend any meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an official action boycotting a host country or higher education institutions located in such country."
A “host country” is defined as a country in which there is a higher education institution chartered by the NYS Board of Regents. Thus, the prohibition applies only to boycotts against academic institutions in Israel, Hungary, Lebanon, and the Czech Republic.
If this legislation becomes law, no college may provide funds for any employee to pay for membership in, or for travel or lodging to attend a meeting of any organization of professors that has issued a resolution boycotting a higher education institution in Iasrael. In other words, the legislation would prohibit a faculty member from getting funds to travel to an American Studies Association (ASA) meeting, even if that meeting is unrelated to the boycott, or the professor herself is opposed to the boycott. If a college violates the prohibition it loses all public funds for that academic year. This applies to public and private universities that receive state funds.

Why We Oppose the Legislation; Why We Are Calling on Members of the NY State Assembly to Vote NO on this Legislation

1.    Advocacy in support of a boycott, like all advocacy, is a constitutionally protected form of expression. While such advocacy may be controversial, the First Amendment is a bulwark against government censorship of controversial speech.

2.    It has been more than 60 years since this legislature sought to prohibit advocacy on any subject or for any point of view.  To do so now will return us to the days of McCarthyism, when colleges and universities became places of fear and suspicion, and when vigorous and contentious debate was replaced by a demand for conformity.

3.    Advocacy of boycotts – and the boycotts themselves - played a substantial role in changing discriminatory policies in the American south and in South Africa, to say nothing of strengthening labor struggles throughout our country.  Advocacy of boycotts by activist students and faculty has a long and honorable place in U.S. history. The NY State legislature should not be on record as suggesting that advocacy of such an effective means for promoting peaceful change is somehow illegitimate.   4.  Public universities are a critical resource for poor and working-class New Yorkers -- and silencing speech in those institutions by using tax dollars as leverage is a particular assault on the speech and freedom of those who rely on public education.
About the Boycott in Relation to this Legislation

1.    It is charged that the boycott violates academic freedom. However, the boycott of universities funded by the Israeli government is directed at the institutional policies themselves, and not at faculty members of those institutions, which is the central concern of academic freedom. As the AAUP has said, " Academic freedom is meaningless if it does not protect those who support unpopular positions, including the advocacy of academic boycotts."

2.    The boycott of Israeli universities makes no mention of any religious group, and, despite claims of this bill’s supporters to the contrary, does not violate any laws against religious or ethnic discrimination.  (   3.  Sponsors of these bills say that singling out Israeli academic institutions amounts to anti-Semitism and constitutes discrimination. This is false. To equate criticism of the Israeli state with anti-Semitism is as absurd as claiming a boycott of Saudi Arabia for its human rights record is Islamophobic or that criticism of the Chinese occupation of Tibet is hateful against people of Chinese ethnicity.


Some of the bill's sponsors are for it because they think the ASA boycott is anti-Semitic.  Michelle Goldberg reports in The Nation that State Senate Co-Leader Jeffrey D. Klein said, “I will not allow the enemies of Israel or the Jewish people to gain an inch in New York,”

Translation, State Senator Jeffrey Klein is willing to stomp on the first Amendment rights of anyone he perceives to be an enemy of Israel.  This might be understandable if he were the State Senator from Israel, but it is in direct violation of the oath that he took to uphold the Constitution of the UNITED STATES.   And make no mistake about it.  This bill, had it become law, does stomp on the First Amendment.  The Center For Constitutional Rights stresses these four points in their analysis:

  1. These Bills Target Core Political Speech in Violation of Fundamental First Amendment Principles.
  2. Denial of Funding, Where Motivated By a Desire to Suppress Speecfh, Violates the First Amendment.
  3. Cutting State Aid Can Have a Chilling Effect on Protected Speech
  4. Academic Boycott Resolutions Such as the ASA's Are Neither Discriminatory Nor Anti-Semitic

These were just the CCR's main points.  I urge you to read their memo to see the case history and legal reasoning backing these points to appreciate just how strong their case is.  (CCR memo, downloadable PDF).

Let's return to State Senator Klein''s claim that we need a law like this to fight anti-Semitism.  There may be some anti-Semites behind the ASA boycott.  There certainly are murderers amongst meat eaters.  But that doesn't mean the government should pass a law  forcing us all to become vegetarians.  The ASA boycott is motivated by the harsh reality of Israel's occupation of the West Bank, and no amount of crying "anti-Semite" will change that.  Had the occupation been less brutal, had the Israelis extended equal rights to those living in the West Bank, it is doubtful that the ASA would have signed on to the boycott.

And make no mistake about it--the occupation is brutal.   Avraham Shalom, leader of Shin Bet from 1980 - 1986 said in The Gatekeepers:


The future is bleak.  It's dark, the future.  Where does it lead?  To a change in the people's character because if you put most of our young people in the army, they'll see a paradox.  They'll see it strives to be a people's army, like the Nahal unit, involved in building up the country.  On the other hand, it's a brutal occupation force, similar to the Germans in World War II.  Similar, not identical.  And I'm not talking about their behavior toward the Jews.  That was exceptional, with its own particular characteristics.  I mean how they acted to the Poles, the Belgians, the Dutch. . . To all of them... The Czechs.  It's a very negative trait that we acquired, to be... I'm afraid to say it, so I won't.  We've become cruel, to ourselves as well, but mainly to the occupied population, using the excuse of the war against terror.


If your still not convinced this anti-speech bill is a bad idea then I recommend you read the following posts by Corey Robin, a political science professor at Brooklyn College.  They explain better than I can why you should be against this legislation even if you do not support the ASA boycott.  And if you ARE convinced that this legislation makes as much sense as unleashing a porcupine in a condom factory, you should still read these articles.  They will supply you with the intellectual ammunition necessary to comat this bill and other bills like it that are likely to be considered in the future.

Why You Should Worry More About NYS Legislation than the ASA Boycott

Columbia University to NYS Legislature: Back Off!

The NYT Gets It Right--and, Even More Amazing, We Have an Open Letter For You to Sign!

Why this NYS bill is so much worse than I thought


The bill does contain an ironic silver lining. Michelle Goldberg points out that


Beyond the First Amendment, the bill raises another, fascinating legal issue. It includes three exceptions: boycotting a country is OK when it’s designated as a state sponsor of terrorism, when the boycott is connected to a labor dispute, or “for the purpose of protesting unlawful discriminatory practices as determined by the laws, rules or regulations of this state.” Israel, of course, engages in a number of discriminatory practices towards the Palestinians that wouldn’t pass muster with New York civil rights law. That’s why it’s being boycotted in the first place! So while the law should be tossed in its entirety, a lawsuit focused just on the third point could be immensely clarifying, essentially putting the reality of the Occupation on trial. Were that to happen, New York State would have ended up doing the BDS movement a great favor.


This bill was passed quickly and silently like a thief in the night by Israel's supporters in the New York State Senate.  Fortunately, there was a furious backlash against it after activists became aware of its Senate passage.  Assemblywoman Deborah Glick, chair of Higher Education Committee, withdrew the bill for consideration for now, but she "said that the legislation will be reworked, so it could come back in a different form."  Indeed, it took only a week before Assembly Speaker Sheldon Silver re-introduced the Bill (A08392A).  It is less Draconian the first bill.  It wouldn't withdraw ALL state funds from academic institutions that paid for membership in the ASA or that reimbursed its faculty for travel expenses to attend ASA meetings.  It would, however, penalize academic institutions by withholding funds from them equal to the amount they  spent on reimbursing faculty for their memberships in the ASA or on travel expenses to ASA meetings.  Though the new bill is less Draconian than the old one, it is just as  unconstitutional as the original.  Whether this proposed law is unconstitutional is determined by its intention to penalize lawful speech--not by the size of the penalty it inflicts on such speech.

Unfortunately, this was not the first ham-handed attempt by Israel or its supporters to stiffle discussion about BDS or the occupation, nor will it be the last.  I will discuss other efforts to limit debate in my next post.


Update 2/23/14: I originally titled this piece "New York State's Attempt To Crush the BDS movement and Limit Free Speech"  I decided to change the title because I decided the original was a bit of an overly melodramatic stretch.