I was out-of-town and received a quotidian copy of the Wall Street Journal at my hotel. I was not surprised to see the usual neo-con op-eds of war criminals Douglas Feith and Paul Wolfowitz who played key roles in President George Walker Bush’s terrorism against the nation of Iraq in 2003. I was not surprised to see denials of climate change, and vituperative harangues against the courageous student uprisings against campus racism and ethnocentrism. Fair enough. One does not anticipate daily quotations from Marx’s Das Kapital in a Rupert Murdoch-owned newspaper. However, one of the op-eds that I perused is such a threat to academic freedom and the principles of the AAUP, that it must be challenged.
Law professors Eugene Kontorovich and Steven Davidoff Solomon from Berkeley and Northwestern penned an op-ed, “Those Israel Boycotts Are Illegal,” that appeared on December 1. They claim in a reckless and unseemly display of legal overkill, that it is illegal for any academic-professional organisation to support the Boycott, Divestment and Sanctions Movement (BDS). They assert, unless the founding charters of these organisations expressly encompass boycotts, that any subsequent non-chartered activity is illegal. This specious reasoning is similar to those of Justice Antonin Scalia’s strict constructionist originalism in examining constitutional rights as opposed to the more liberal “living constitution” approach. A common argument from the right is, unless a right is included in a founding document, constitution or organisational, it does not exist.
These professors deploy the privileged journalistic real estate of the Wall Street Journal to denounce the BDS movement as “moral myopia and academic perversity.” They seek to reserve, of course, for themselves the right to express an extramural utterance but to ban, sue and destroy academic organisations that are either considering or have adopted, out of moral principle, a boycott of Israeli academics or institutions. It is obvious the professors’ vehement opposition to the growing BDS movement influenced their legal argumentation, that academic organisations are illegal enterprises if they vote to boycott Israel. Their purpose is to intimidate by name the American Anthropological Association, American Studies Association, National Women’s Studies Association, American Historical Association (AHA), and the Modern Language Association. They stunningly claim that colleagues who serve on their boards, can be sued and are liable for damages. In the United States, we must resist any effort to prosecute board members, who might even be opposed to BDS, for representing those organisations whose members support a boycott.
The AAUP opposes BDS–many of its members support it–but has defended the right of academicians through their collective actions to engage in such activity. Specifically, the AAUP opposes legislative reprisals, but more generally defends the rights of academics to express collectively themselves without the consequences of untamed legal assault against their group affiliations:
The AAUP opposes academic boycotts…But legislative interference in academic decision-making and with the freedom of scholars to associate and exchange views with their peers is even more dangerous than the academic boycotts this legislation is intended to oppose.
Congress chartered the AHA in 1889 during the presidency of Benjamin Harrison. Remember him? Professors Kontorovich and Solomon claim that since the charter did not include the right to boycott, any subsequent action outside its original intent is illegal. The carelessness and sloppiness of the professors’ research as revealed in their op-ed is palpable. The Historians Against the War, that I supported by signing their petition, is leading the effort within the AHA not to boycott but to condemn Israeli military attacks against Gazan institutions of higher education, and a withering control of faculty and student interaction throughout Palestine. It seeks AHA “monitoring (of) Israeli actions restricting the right to education in the Occupied Palestinian Territories.”
I would argue that any resolution, whether supporting a boycott or a plea for greater academic freedom in Palestine, is consistent with the AHA charter. The 126-year old charter emphasises “the promotion of historical studies” and the “broadening of historical knowledge among the general public.” Such a resolution stimulates, whether one disagrees with it or not, discussion and analysis of the historical issues in the region.
What I found particularly troubling was the law professors’ hostility to academic freedom. Whether one is acting as an individual or through an organisation, in this country it must be an unfettered right to articulate a position on a matter of public concern. I also wish to remind the authors that this is the United States and not the United Kingdom of Great Britain and Northern Ireland. Professors Kontorovich and Solomon take great pains to inform the reader that the Royal Institute of British Architects voted to boycott an Israeli architectural entity, only to rescind it when its attorneys advised them it might be illegal.
Here in the US, resistance, protest and I would hope robust and determined AAUP intervention would occur if academic organisations become targets of the Israel lobby with legal claims for adopting a position that supports the BDS movement. It is the principle of academic freedom that must protect the enterprise of academic expression on issues that affect our lives and world.