Congress is next battleground over boycott of Israel

Migrating from the halls of state power to the federal level, the backlash against the American Studies Association’s (ASA) decision to boycott Israel continues. Legislation against the boycott, divestment and sanctions (BDS) movement was introduced in the House of Representatives yesterday under this Orwellian name: the Protect Academic Freedom Act.  It seeks to bar federal funds from going to academic institutions that back the BDS movement.

The legislation, HR 4009 (PDF), was introduced by the co-chair of the House Republican Israel Caucus, House Chief Deputy Whip Peter Roskam (R., Ill.), and Rep. Dan Lipinski (D., Ill.)

The bill’s language applies a loose definition of academic institution.  It would bar federal funding from going to “any organization significantly funded by the institution” that backs the BDS movement.  But the vast majority of federal assistance in higher education goes to student loans–which would be exempted under this bill.  Academic institutions like the American Studies Association don’t receive any federal funding.  And no higher education institution has backed the boycott of Israel.

So it’s unclear what the tangible impact will be on universities.  Still, the net effect of a bill like this is to have a chilling effect on those who advocate boycotting Israel.  And leading First Amendment scholar Floyd Abrams criticized the effort as contrary to the Constitution.

“The notion that the power to fund colleges and their faculties may be transformed into a tool to punish them for engaging in constitutionally protected expression is contrary to any notion of academic freedom and to core First Amendment principles,” Abrams told BuzzFeed’s Rosie Gray.

Dima Khalidi, the Director of Palestine Solidarity Legal Support and Cooperating Counsel with the Center for Constitutional Rights, had a similar message in a statement e-mailed to us.  “This bill, like those proposed in the New York and Maryland state legislatures, is an outrageous assault on free speech…The bill violates the Constitution by denying funding to a university if any groups or individuals at that institution advocate for the academic boycott of Israel,” Khalidi said.  “It singles out and punishes only those boycotts that advocate for Palestinian rights. The First Amendment is clear: the government may not forbid controversial speech by students and academics based on its content or viewpoint.”

The federal anti-boycott bill was also slammed by the New York Times’ Carol Giacamo as “weaken[ing] America and its bedrock commitment to free speech and peaceful political dissent.”

Similar efforts to defund institutions that receive government funding have been struck down as unconstitutional.  For instance, in 1999, New York City Mayor Rudy Giuliani pulled funding from a city museum that displayed a portrait of the Virgin Mary sullied by elephant excrement.  A federal judge ruled that Giuliani’s move was unconstitutional and threatened the First Amendment.

Roskam issued a press release claiming that the legislation seeks to “combat bigotry” by shielding Israel from unjust boycotts.” His statement goes on a diatribe about how “ludicrous” it is to focus on Israel instead of going after Iran and North Korea. Sound familiar? Here’s more:

 Congress has a responsibility to fight back against these hateful campaigns, which contradict academic freedom and are designed to delegitimize the Jewish State of Israel. I’m so thankful for the wisdom and leadership of Ambassador Michael Oren, who has helped raise awareness for this important effort.

While Oren, the former Israeli ambassador to the U.S., is backing the effort, it hasn’t garnered the support of major pro-Israel groups–at least not yet.  The Anti-Defamation League’s Abe Foxman told BuzzFeed’s Gray that “we are not sure that this bill would be the most effective means of recourse.”  The American Israel Public Affairs Committee is reviewing the legislation.

It was Roskam who helped organize 134 members of the House of Representatives to sign a letter last month condemning ASA’s academic boycott of Israel as “blatant disregard for academic freedom” and “thinly-veiled bigotry and bias against the Jewish State.”  

In December 2013, the American Studies Association called for an academic boycott of Israel in response to the call from Palestinian civil society groups. The Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI) launched in 2004, calling on the international community to end cooperation with Israeli academic institutions due to their deep involvement in Israel’s system of control over Palestinians.