New York Senate passes bill punishing ASA over Israel boycott

State Senator Jeffrey Klein (Photo: MARIELA LOMBARD/New York Daily News)

State Senator Jeffrey Klein (Photo: MARIELA LOMBARD/New York Daily News)

Legislation that targets the American Studies Association over its decision to boycott Israel passed its first test today: a vote in the New York Senate. The bill, introduced by Democratic Senator Jeff Klein, the co-leader of the body, passed by a vote of 56-4.

The measure prohibits colleges and universities from spending taxpayer funds on academic groups that support boycotting Israel.  While the measure applies to any academic organization that boycotts countries where the New York Board of Regents has chartered a school, the focus is on Israel.  A companion bill is currently being considered in the Assembly.  If it passes there–48 lawmakers are co-sponsors of it–it will be up to Governor Andrew Cuomo to either sign the bill or veto it.

The bill’s passage marks the first time a legislative body has successfully passed a bill to target the ASA over its decision in December to boycott Israeli academic institutions. That decision, a landmark victory for the boycott, divestment and sanctions (BDS) movement, unleashed a torrent of opposition from Israel lobby groups and university administrations.

“This legislation sends a very simple message, which is that we should never ask taxpayers to support religious, ethnic, or racial discrimination. We need to marginalize the politics of intolerance whenever it rears its ugly head,” Senator Klein, who represents the Bronx and Westchester, said in a statement.  ”I will not allow the enemies of Israel or the Jewish people to gain an inch in New York. The First Amendment protects every organization’s right to speak, but it never requires taxpayers to foot the bill.”

The bill’s principal impact will fall on students or scholars from state schools who receive money from their institutions to travel to the ASA convention–or to conventions held by the Native American and Indigenous Studies Association and the Association for Asian American Studies, both of which have voted to boycott Israel. The legislation also prohibits state schools from paying membership fees to the ASA.  In practice, this will affect individual departments at state institutions, since departments pay membership fees, not schools themselves.

Institutions violating the legislation would be cut off from state aid during the academic year the violation occurred. The legislation also has language that exempts certain kinds of boycotts: boycotts related to labor disputes, countries that are “state sponsors” of terrorism, and boycotts that target “unlawful discriminatory practices”–exactly what the ASA boycott and BDS movement are about.

Although Klein’s statement claims that the legislation is in line with the First Amendment, legal advocates strongly disagree, and the bill could set the stage for lawsuits.

In an e-mail to me last week, the Palestine Solidarity Legal Support group’s Dima Khalidi laid out the constitutional issues with the bill.  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,” Khalidi said.  ”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 of academic freedom, which the proposed legislation cynically purports to defend.”

Klein had previously sent letters to the leadership of the State University of New York and the City University of New York that asked them to denounce the ASA boycott.  Both of the university institutions have come out against the boycott.  Klein had also teamed up with Dov Hikind, an Assembly Democrat and former member of the Jewish Defense League–an extremist group linked to violent attacks in the U.S.–on a separate, and slightly different, bill targeting the ASA.  There has been no movement on that legislation, though.

(Thanks to Corey Robin, who first alerted me to this.)

  1. Of course the New York senate does
    but the Zionists are a very small minority who have made many enemies
    And the fall when it comes will be richly deserved and welcomed with copious backstabbing

    And the bond is unbreakable my ass.

    • “but the Zionists are a very small minority who have made many enemies”

      LOL. 56-4 – Yeah, that says small minority. Somehow, I think that if it were 59-1, you’d say we were a really very small minority.

      And we outnumber you guys about 8-1 in American support. So if we’re a very small minority, I shudder to think what that makes you guys.

      • 54-6 says a rich minority

        “And we outnumber you guys about 8-1 in American support.”

        The dynamics are fascinating . Hasbara is dying.
        BDS has the Israeli banks in a panic.

  2. interesting blog from Casey Seiler, Capitol bureau chief link to blog.timesunion.com

    Klein amended his original bill, which would have used the bazooka-vs.-fly approach of denying all state funds to any school that supported such an organization.

    The revised bill includes several carveouts:

    The provisions of this section shall not apply to any college:
    (a) when such college is located in a country that is determined by the United States secretary of state to be a state sponsor of terrorism;
    (b) when such boycott is connected with a labor dispute; or
    (c) when such boycott is for the purpose of protesting unlawful discriminatory practices as determined by the laws, rules or regulations of this state.


    That last item poses an interesting question: Does Israel’s treatment of Palestinians comport with New York State law?
    To be sure, it would make an interesting lawsuit. Also, the bill only applies to nations that have higher education institutions chartered by the SUNY Board of Regents.

    • The more interesting question is their lack of concern over the last clause, their interpretation is that affirmative action in favor of one such group coupled with discrimination against non-members of such group, is perfectly legal in New York State.

      But “The United States Court of Appeals for the Ninth Circuit recently held that former news reporters could state a prima facie case for .. discrimination through the use of statistical evidence, even if that evidence did not account for their former employer’s legitimate nondiscriminatory reason for discharging the reporters.”
      link to kmtg.com

      This means that the jv of Cornell-Technion ( a major center of bioweapons research btw), , if found to discriminate in favor of applicants acceptable to Technion ( arguably excluding Arab and African applicants statistically), might meet the threshold for a prima facie case of illegal discrimination , leading the joint venture into serious risk of legal complaint.
      link to now.cornell.edu

      But the NY State Senate seems to regard such risk as minimal, meaning the Courts have their back, it seems.

  3. 1) Now that Technion is a NY-funded institution, should it not also be subject to this legislation?

    Furthermore, Technion practices institutional discrimination against Palestinian students by severely restricting their freedom of speech and assembly, and rewarding those Jewish students who, unlike most Palestinians, perform compulsory military service in Israel.[41, 42, 43]

    [41] Anhel Pfeffer, “New ‘bill of rights’ for student reservists” link to haaretz.com

    link to mondoweiss.net

    Is there more, provable discrimination at Technion, Israel? If so, they should be forced to either remedy it (as in submit a plan and subject themselves to progress monitoring) in Israel or close shop here. Maybe this bill could do some good.

    2) The bill provides a domestic exception for boycotts against discriminatory practices.

    4(c) when such boycott is for the purpose of protesting unlawful
    discriminatory practices as determined by the laws, rules or regulations
    of this state.

    IOW, you can discriminate elsewhere (i.e. in Israel) without fear of an organized response, but you can’t do it here. That seems more than a little disingenuous, if not outright selective. I wonder if there are examples of a historical disregard for these proposed standards in NY. Would one example of selective enforcement be enough to invalidate this proposed law, or would it have to be a proverbial “preponderance” threshold (assuming there is some threshold of established practice that could invalidate this law)?

    3) Brandeis, not in NY, but as an example, recently severed ties with Al-Quds University over some perceived nastiness. link to mondoweiss.net “Severing ties” is an “official” (term with specific meaning in the bill) boycott action. If Brandeis were in NY, would it be subject to defunding under this proposed legislation? The bill wording seems pretty broad.

    Many questions. But perhaps more opportunities, as a lot of this will be investigated and publicly aired.

    • @ritzl. That a stupid assertion- the bill of reservists does not discriminate against anyone, same as the Veterans Bill in US. Keep digging.

      • It is discriminatory since Israel, as state policy, doesn’t conscript Palestinian-Israelis. But granted, it isn’t enough.

        So, not stupid, just preliminary. That’s why I added the part about the need for further investigation into Technion’s practices in Israel. It might reveal a pattern of discrimination, which is applicable to US law.

        In any event, the Cornell-Technion arrangement is at risk from this legislation. The legislation is junk, and I don’t think they can narrow it to exclude collaborations with Israeli institutions without, if I understand Hostage correctly, making it contradict itself.

        • @ritzl. Wrong answer again. Israel does not enforce Arab conscripts, however if anyone wishes to join IDF, it is permitted and welcomed.
          Technion acceptance rules does not prohibit Palestinians, or Arab citizens of Israel from getting in.
          And please send my regards to Hostage, for making a fool of himself again.
          Keep digging.

          • The legislation is junk, and I don’t think they can narrow it to exclude collaborations with Israeli institutions without, if I understand Hostage correctly, making it contradict itself.

            I haven’t seen the law, but the article said “The legislation also has language that exempts certain kinds of boycotts: boycotts related to labor disputes, countries that are “state sponsors” of terrorism, and boycotts that target “unlawful discriminatory practices”–exactly what the ASA boycott and BDS movement are about.”

            And please send my regards to Hostage, for making a fool of himself again.

            Quote please. I don’t believe I’ve said anything on this issue that would make a fool out of myself. You’ve spent most of your time on MW with your foot in your mouth and aren’t smart enough to make a determination like that.

          • The US and Israel DO NOT share values. What’s normal for you/Technion/Israel is illegal and actionable discrimination here. The authors of this legislation overlook that little hiccup in their retaliatory zeal. Others will pursue it. More investigation on this to come. More data showing why ASA correctly did what it did.

            Just a prediction, but I believe it also suggests an unavoidable pattern of blowback as “unsustainable” continues to be defined in real terms. It’s impossible to single out and penalize people protesting Israel without shining the spotlight right back on Israeli practices, particularly as seen through US eyes.

        • @Hostage- I shouldn’t have namedropped you like that, vague as it was. Sorry.

          By “contradict itself” I was trying to say that the bill couldn’t single out ASA without being discriminatory or unconstitutional itself.

  4. Q1: ”I will not allow the enemies of Israel or the Jewish people to gain an inch in New York. ”

    R1: According to my book that should be – ”I will not allow the enemies of the Jewish people here in New York or elsewhere to gain an inch…, blah, blah, blah…”

    Ahhhh, priorities, priorities, priorities….

    Q2:”The First Amendment protects every organization’s right to speak, but it never requires taxpayers to foot the bill.”

    R2: You’re using tax payers money to block the 1st Amendment, Mr. Klein.

  5. So mainstream Jewish politicians frame BDS as racial discrimination.

    How do they frame the JNF? Or the apartheid policies in the OPT? Or the Prawer Plan? Or the institutional discrimination against non-Jews inside Israel? Or the several blatantly racist laws inside Israel?

    Zionist Jews are so cynical and anti-democratic. They exploit the democratic character of the United States to push their political, ISRAELI agenda.

    What they want is for the US to turn into another Israel.

  6. wow. they justify this how? what other political issue enjoys a threat of withholding of funds over a humanitarian boycott? if I were “Students For Focus On The Family” I’d be screaming to get my power heard against China. oh, but China doesn’t have an accredited institution by NY. how brutal. so sad.
    so, what if everyone just keeps pushing the envelope.? If this legislative representative for Israel is willing to go this far, we need to push them over the cliff. adopt every BDS action possible and see what they can legislate! go for it.

  7. should also say that this legislation does not help the US in its human rights violations of its own citizens.

    furthermore, where are these legislators when the US is executing prisoners with whatever drugs they can scrounge up, or when the US is dropping drone bombs everywhere, or torturing prisoners or overthrowing elected governments in Central America and the middle east???
    I don’t care what New York thinks, the world knows what is going on, and it’s time to push the envelope.

  8. The legislation also has language that exempts certain kinds of boycotts: boycotts related to labor disputes, countries that are “state sponsors” of terrorism, and boycotts that target “unlawful discriminatory practices”–exactly what the ASA boycott and BDS movement are about.

    If the bill doesn’t mention the ASA and it exempts boycotts, like the one ASA has adopted, then 1) this proposed law doesn’t actually permit the ASA to be punished; or 2) you just cited a claim that forms the legal basis for which the state or federal courts must grant relief.

    The recent unilateral pronouncements by officials of the Israeli government make it abundantly clear that the legal fiction adopted by the Reagan and subsequent US administrations (which said Israeli settlements are merely temporary in nature and subject to final status negotiations) is untenable and legally indefensible. The Israeli government has announced construction of thousands of new units in the occupied territories and has no intention of removing any of them or even a single settler under the final settlement. So the US government is effectively facilitating the pillage of Palestinian territory, in violation of Article 28 of the Hague IV rules of 1907 and the implantation of hundreds of thousands of illegal Israeli settlers in violation of Article 49(6) of the 4th Geneva Convention.

    The first problem for the New York lawmakers is that the US helped adopt Chapter VII UN resolutions containing findings on the law and criminal statutes which say that the Hague IV Convention of 1907 and the Geneva Conventions of 1949 are a universally applicable part of customary international law. As such, they are part of the “law of nations” that State Courts have been enforcing for 200 years. It would be inappropriate to use “choice of law” analyses, since the universally applicable law of nations is the substantive law that is expressly incorporated by references in the US Constitution, the Alien Tort Statute, and the applicable UN Security Council Chapter VII resolutions on the subject. Israel is violating international agreements it is legally bound to respect by permitting its civilians to settle in Palestine and using its armed forces to provide them with a safe haven.

    For example, UN Security Council resolution 1373 (2001) and Security Council resolutions 62 and 73 criminalize and make it illegal for either Israel or the US officials to provide safe havens for Israeli settlers in Palestine in violation of the armistice agreements or to facilitate the means of carrying-out Israeli settler price tag terror attacks in Palestine, even by indirect means or mere acquiescence.

    The federal government itself has stated that permanent Israeli settlements in the occupied territories or any measures aimed at altering the ethnic/demographic balance are illegal under the terms of the Geneva conventions. See for example:
    * Department of State Bulletin v. 74, no. 1921 April 29, 1976 p. 528 link to archive.org
    * The President’s News Conference, July 28, 1977 link to presidency.ucsb.edu
    * The message to the government of Israel regarding settlements from Secretary of State Rusk link to history.state.gov

    The US and Israel are both contracting state parties to the ICERD. The elected panels of legal experts have repeatedly noted that establishment of Jewish-only settlements has been clearly inconsistent with the prohibition of apartheid and similar policies of racial segregation contained in Article 3 of the Convention. The Committee noted General Recommendation XIX, prohibited all forms of racial segregation in all countries; and that there was a consensus among publicists that the prohibition of racial discrimination, irrespective of territories, was an imperative norm of international law. See
    * CERD/C/SR.1250, 9 March 1998 link to unispal.un.org
    *And and CERD/C/ISR/CO/14-16 link to www2.ohchr.org

    The US State Department has also reported on unlawful discrimination in the area of academic freedom:

    The Israeli Supreme Court upheld the 2000 Israeli ban on students from the Gaza Strip attending West Bank universities; only three students, who began their studies in 2010 under foreign government scholarships, continued to receive permission during the year. The three students all faced delays in processing their permits, which they were required to do every three months. In general students in the Gaza Strip did not apply to West Bank universities because they understood that Israel would deny permit requests.
    On October 8, there were reports Israeli police shut down a Palestinian school with more than 1,200 students between the ages of 12 and 18 in East Jerusalem for a period of one week. The police claimed the closure came as a result of suspicions children from the school threw stones in the nearby At-Tur neighborhood, injuring an Israeli settler. However, school authorities asserted no stones were thrown from school grounds and that the school bans such activities; they characterized the school closure as a form of collective punishment.
    During the November Operation Pillar of Defense, Israeli bombs rendered a school in the Gaza Strip unusable.

    link to state.gov

    There is absolutely no doubt that the Goldstone report was factually correct when it noted that illegal measures adopted by Israel have resulted systematic discrimination against Palestinians:

    [T]he application of Israeli domestic laws has resulted in institutionalized discrimination against Palestinians in the Occupied Palestinian Territory to the benefit of Jewish settlers, both Israeli citizens and others. Exclusive benefits reserved for Jews derive from the two-tiered civil status under Israel’s domestic legal regime based on a “Jewish nationality,” which entitles “persons of Jewish race or descendency” to superior rights and privileges, particularly in land use, housing, development, immigration and access to natural resources, as affirmed in key legislation. Administrative procedures qualify indigenous inhabitants of the Occupied Palestinian Territory as “alien persons” and, thus, prohibited from building on, or renting, large portions of land designated by the Government of Israel as “State land”(para 206)

    The ASA merely joined a civil society boycott that was initiated because of government inaction with regard to the litany of fundamental human rights violations contained in the 2004 ICJ Wall case. The World Court pronounced the entire Israeli administrative regime adopted in association with the Wall “illegal” in accordance with the terms of international law, including the 4th Geneva Convention (paras 132-134).

  9. Milchan confesses to spying for Israel against the US and nothing happens.

    ASA’s members, after informed debate, determine that since Israeli actions are illegal they want to join a civil society boycott and the New York state senate gets together to pass a law attempting to crush the organization.

    • For the record, my experience is that the more one learns about the Palestine-Israel situation, the more one realizes how destructive and cruel state supported racism can be. I take it you disagree with that?

  10. Abbas et al agreed, under whatever pressure, to hold off further application to the UN for nine months in order to play ball with ‘negotiations’ but the nine months period ends on April 29. What then?

  11. Once the EU passes a resolution to abrogate the EU-Israel Association Agreement that gives this Mideast state free access to Europe’s huge market block although it is not and never can be a member, then the antics of the NY Senate in supporting the AIPAC lobby group, will be completely meaningless. Watch this space..