Recent BDS Developments: Anti-BDS Legislation and the MLA

Video & Edited Transcript
Maria LaHood & Stephen Sheehi
 Transcript No. 475 (March 3, 2017) 

Dr. Stephen Sheehi: Thank you Samirah for having me. Thank you to the Palestine Center and thank you for all coming on this now frigid March day, compared to what we’ve had. So, I really appreciate seeing you here. I just want to also say that it is an honor to be here at the Palestine Center. I’ve spoken at a lot of places, but it’s particularly meaningful to speak here. I’m not going to give anyone too much background on the BDS movement. I am assuming that people kind of know what it is and know the backstory. Just to bring you up to snuff, there was, as Samirah said, a resolution vote in January at the annual MLA conference that was to endorse the BDS was voted down 79 to 113. A second resolution did pass, which is really an anti-BDS resolution that actually proposes to make all BDS resolutions illegal. Sort of, we’re not allowed to front anymore BDS resolutions to the MLA would be preventative. And third, there was a rather disturbing resolution that was presented by a non-sort of entity, professor from University of South Carolina, Agnes Muller, that actually condemned Palestinians for their violation of academic freedom in Palestine. So it’s sort of a racist turned resolution. That was shelved, but the other resolution was passed, the one that would prevent further resolutions from being presented to the membership. Just to make sure we know what we are talking about, is that the process is you have a delegate assembly and resolution is given to the delegate assembly, the delegate assembly votes on that. If it’s approved, then subsequently that resolution is open to the membership for an open election to approve. So, what we are talking about when we say that the resolution was defeated is that, it was defeated in the delegate assembly. Currently, the other anti-BDS resolution was approved. So, that will, technically, be open to the membership for voting.

Just so you know, this is what the BDS resolution looked like. It is pretty much standard for those of you who are familiar, which basically identifies the violation of academic freedom of Palestinians inside forty-eight, inside Palestine, historic Palestine and in the West Bank. Also, the effective complicity of the Israeli academic institutions in the occupation. For those of you who don’t know about the MLA, it’s the largest academic organization for teaching languages, culture and literature, including English and most other languages. I do Arabic. It has about 24,000 members in about 100 different countries. It has a long history with activism, which really haunts this process.This latest votes basically started three years ago in 2014. There was actually a resolution before the delegate assembly in 2014 and it was passed. That basically censured Israel for violations of academic freedom against Palestinian academic freedom. That passed in the delegate assembly. It was open in the membership. It actually won among the membership; something around 1,200 votes to 1,000 votes. However, as I said, the MLA does have a history of being activists and a history of being anti-activists. So, what they did a couple of years ago, they reengineered the laws of how you could pass something. So, that resolution in 2014 actually won. The pro-censure or anti-Israel, or whatever you want to be called, resolution won but, since it was under a 10% quorum, it was not passed. This was changed several years ago, precisely due to the activism within the MLA and that’s why I gave you 24,000 as our membership; we ended up having something like 2,200 votes cast only. That’s under the 10%.  The following year, the BDS resolution continues. It’s presented and it was shelved by the sort of executive council of the MLA. It was voted on by the delegate assembly to shelve it for two years with the understanding that that two year moratorium would be a time where the issue of Palestine could be debated or discussed. That year the MLA Members for Justice in Palestine was created. That become the organization, the pro-BDS organization, that sort of spearheaded the resolution for the subsequent two years. In 2006, there was a plethora of panels on Palestinian culture, literature, the condition of the Palestinian people etc. and as well as a number of sort of pro-Israel panels, which were largely outnumbered by the pro-Palestine.

Going into 2017, quite frankly, we were all really optimistic. There was a bit of hype. There was definitely a sense that the memberships largely endorsed the BDS resolution. There was some other signs with petitions circulating around, and the pro-BDS were to outnumber two to one the anti-BDS petitions. So, it really seemed that we had the wind in our sails. But, I have to say there was something strange also happening. There was a sense by the time that we got to the conference that something was turning. One was that the president of the MLA, Kwame Anthony Appiah, had organized a little before a town meeting called, “Should the MLA endorse a boycott of Israeli academic institutions,” very pithy title. That says what it did and it was a good town meeting because of course, the MLA Member for Justice in Palestine are articulate and always very successful in presenting the argument. It allowed the anti-BDS organization to start practicing their talking points. That’s really where we are going; what are these talking points? At the same time, the President had published in the MLA winter newsletter, which was also published on the website, a letter called, “Taking Issue and Taking Stalk,” which effectively declared his opposition to the BDS resolution. So the President himself took a political stand expressing all the reasons why the MLA shouldn’t pass this resolution. Jeffrey Sacks wrote a wonderful take down of this letter. It’s on Jadaliyaa’s page. Very brilliant piece. We lost and we were kind of in shock. That’s partially because I don’t think we were able to see some things that were going on at that time. While some people want to spin the loss, the naksa, and say it opened up debate in a way that we hadn’t ever had, which to some degree is true. I think we need to learn from what happened. I’m going to scribe, and this is where I will spend the remaining time discussing, basically three reasons why the anti-BDS movement lost and that is one; it was the perfect storm. There is an intensification of atmosphere of fear and intimidation and I think, Miss LaHood will talk about that later. There was a concerted ex-mure collaboration between non-MLA, largely Israeli, groups with MLA members to organize the anti-BDS campaign and in that, as well, that movement was smart enough to shift their discourse and shift in how they circulated talking points, the points they really hit.

First, i’ll just talk about the ex-mure collaboration. The anti-BDS movement is led by long-time hard-core Zionists, in particular, Cary Nelson, who we probably know about. He is the former head of the AAUP, the American Association of University Professor, a very powerful professorial union. He is a professor at the University of Illinois and actually spearheaded the anti-Steven Salaita campaign. And Russell Burman, a former president of the MLA and a neocon scholar of German literature. He is a professor at the Hoover Institute and at Stanford whose conservative politics are well known. But what is less well know, and people really haven’t discussed, is that he’s also a long-time Islamophobe. He’s written a book called, Freedom or Terror; Europe Faces Jihad, and just to show you the reputability, it was published by the Hoover Institute. Then articles like, Folk and Uma; A Genealogy of Islamo-fascism, Islamism in France, From Left-Fascism to Campus Anti-Semitism, and Politics and Values; Middle East and China and many of these articles are published in Telos which is actually an academic journal that he edits. So in terms of credibility, he really has none. He as no training in the Middle East. No scholarly qualifications in the Middle East studies, but he is a sort of typical neocon in that regard. Burman and Nelson have been the long time commanders of the anti-BDS/ anti-Palestinian. These guys are avowed anti-Palestinians and they have always sought to thwart anything that is vaguely pro-Palestinian in the MLA. They started the MLA Members for Scholars to defeat the boycott resolution. What is less known, however, is that Burman was working in close coordination with non-MLA Israeli groups such as,The Committee of University Heads in Israel. Which is effectively an Israeli anti-boycott academic association. Preceding the conference Burman sent out an open letter signed by ten former Presidents of the MLA, including himself, condemning the boycott and urging folks to vote against the boycott. However, unbenounced, probably, to the other nine presidential signatories, this actual letter is not likely to have been penned by Burman himself but actually penned by Israeli scholars. It had become known, subsequently, that Burman was working on behalf of this non-MLA membership, particularly the Committee of University Heads in Israel led by an Israeli mathematician, Zvi Ziegler. Also, more specifically, he was in constant contact with an Israeli anthropologist named Dan Rabinowitz who coordinated an anti-boycott petition among Israeli scholars. He coordinated that with Burman, and what is interesting, however, is that Burman then is in communication with Rabinowitz. He gets this petition, he embeds it into this letter that the ten signatories signed onto that was sent out to all delegates and membership and with that there was also a little sexy video that they produced. It’s obnoxious it’s so funny. But again, I think the high production quality speaks the the coordination that was going on here. I will have to say one other thing. This letter that was penned by Rabinowitz and these Israeli scholars and then basically sent out by Burman, were sent out to all the delegates in the assembly except those that were visibly associated with the BDS resolution, including myself. I did not receive this letter. So they sort of deleted us from the list.

One particular letter that I came upon that was sent to me by an anonymous source, I can’t say how it came to me, shows how Israeli scholars were organizing right before the conference, and you could actually note a very palpable sense of fear that they were going to lose. Confidence, in fact, that they were going to lose. They were sort of playing for the long game. What I found particularly important is two additional points. One which it shows that this sort of collusion between these non-MLA Israeli members and how they organized with American colleagues to write op-eds, etc. Who are then well placed to get those op-ed pieces in American newspapers and websites. The other thing that strikes me about this is, particularly how he then references having an ad hoc committee in Israel that will then work closely with, he specifically names, Russell Burman and Carry Nelson. So there is a bit of a smoking gun. What I don’t want to do is fall into any anti-semitic track here. Some sort of tropes about conspiratorial stuff. This is not conspiratorial stuff. This is called organizing. We do it, everyone does it. They do it. The difference is, it was much more secretive and these were non-MLA members and that is what we need to stress. They were Israeli non-MLA members. They were mathematicians, politicians, and all these sorts of things who were there spearheading and helping out the anti-resolution group in the MLA. So that collaboration is very important. The other thing, and I am not going to spend too much time on it because I think Ms. LaHood will, is that this also comes at a time following the Trump election. There’s a lot of fear, there’s a lot of intimidation. People are feeling this now more. They definitely are scared. Again, i’ll allow Ms. LaHood to talk about that maybe more concretely, but one thing that is definitely concrete is not only the legislation but that the Brandeis Center, the week before, issues a letter to the MLA threatening, the Brandeis Center is a human rights group here in DC that specializes on anti-semitism, a lawsuit against the MLA is the resolution passes. This lawsuit is very much so in the air at the MLA at this time. It’s circulating. It’s palpable. Everyone knows about it. Everyone’s talking about it. In this regard, the executive MLA committee tries to change the language a little bit of the actual resolution to show quote on quote that it would not be binding to its members, nor that basically the organization can do whatever it wants; organize with Israel and basically has no teeth. Now, that resolution, those amendments didn’t change, but what was allowed was in debating these amendments the threat and the fear was allowed to be churned up and amplified even more. So, people became much more aware and feeling that sense of intimidation and threat. This sense of threat is really important because it’s one of lawsuits, not only against MLA but somehow it is going to affect us as academics or our home institutions.  

Finally, I am going to leave on this point and that is to say that there is also among this atmosphere, among the collaboration, there was a shift in discourse. There was a shift in talking points of the anti-BDS movement and this is very important. Previously, we would sit in these debates and the anti-resolution, anti-BDS resolution folks, would say the most heinously, racist, absurd things you would ever think. Some stuff right out of 1982. “Palestinians do better in Israel than they could have,” “Palestinians should be thanking God that Israel came,” basically Israel saves Arab women from Arab men and these sort of things. We just sit there and kind of snicker and laugh at how much smarter we are, but they’ve changed that language completely because the language as they were talking now was to the delegate assembly not to legislatures and not to the congressmen where that sort of racist, stereotypical stuff might hold water. They were speaking to academics. Every academic in there had read Edward Said, they kinda got it. So they completely switched their talking points One letter that we have, the one that was actually embedded in the one that Burman circulated to the delegates, says that, “We Israeli academics,” and it names their fields, “ are writing to you today to solicit your vote against the MLA proposed resolution which seeks to boycott Israeli academic institutions. We oppose the occupation of Palestinian territories and resist any infringement of Palestinian human rights. We strive for the full equality of Palestinian citizens of Israel and call for a just resolution to the conflict including the tragedy of the Palestinian refugees. We also value the potential role that academic institutions, including the MLA, could play in such a process. Whichever way we assign blame and responsibility for the conflict in the Middle East and its consequences, boycotting our universities where a solid majority of our faculties and students are pro-peace, pro-justice and reconciliation will not yield positive results. In fact, it has a boomerang effect.” That’s part of the letter from the Israeli scholars. That shift in discourse completely, I think, changed the tone. These were not overt, hardlined, likudist zionists. These were the good guys. We’re boycotting the good guys. We’re boycotting our friends. Those are the pro-peace, shalom achshav, all the good guys that we would be austricizing. It’s that tact that really changes, to me, the tenure of bait.

Now, there are still other talking points and we know about that – anti-semitism – but that really wasn’t bantered around as much because a large percentage of the anti-BDS movement are American Jews. We know how much American Jewish academics have really been at the forefront of this BDS movement in such an admirable way. So, the anti-semitic thing really didn’t hold and we really didn’t hear it that much. But, the exclusivism thing, the singling out of Israel, it’s a violation of academic freedom, we’re punishing those people who shouldn’t be punished, Israeli academic institutions actually help Palestinians. They use all these fake numbers showing how many Palestinians are really represented in Israeli institutions. Of course, the fact of the matter is, if you look at the recent studies, a large amount of those are Palestinian Christians who are disproportionately represented in academics. Palestinian-Christian academic achievement out pases Jewish-Israeli academic achievement. That’s only because they are privileged, in sort of an ironic way, that the majority, just like Jewish minority communities have their own sort of little communal mechanisms by which they attend to education. When you look at other Palestinian metrics, that doesn’t weigh-up, but they sort of fudge these statistics and Israeli institutions of course love the Palestinians. So there are a number of different talking points that are adopted that really change the texture of the argument and make it a much less overtly pro-Israel, racist, sort of Likudist, hard-lined, Bibi vote. I would ascribe that to the success of the anti-BDS movement. One we have to attend to and not be overly confident and sort of think that the sheer weight of our just cause is self-evident. I think I am going to leave it there because I covered a lot of material and I want to leave some space for some more technical stuff, maybe. Thank you very much for having me.

Maria LaHood: Thank you, and thanks to the Palestine Center for having me and all of you for being here. As you heard in the case of the MLA, as the movement for Palestinian rights in the United States grows, so does the efforts to suppress it. Israel has declared that BDS is the biggest threat that it faces. Tens of millions of dollars are being spent to combat BDS and criticism of Israel. When there is no defense, the tactic is to silence, malign or bully the speaker. We are seeing more and more of that these days. But, nearly 50 student divestment resolutions have passed on campuses, despite being called anti-semitic and not being debated on their merits. Students for Justice in Palestine groups are growing on campuses all over the country, educating their communities. This is despite being called uncivil, divisive, anti-semitic, supporting terrorism. Despite being investigated for protests or actions that they do. Despite the bureaucratic barriers that they face when they try to form a club or bring in a speaker to talk about BDS. Recently, students at Fordham in New York have even been prevented from forming an SJP or calling it an SJP. After a year of being given the runaround, the administration denied them a club status. Saying that the purpose of SJP was polarizing and that the call to BDS represents a barrier between open dialogue and mutual learning and understanding. When CCR and Palestine Legal asked the administration, “what about freedom of expression and the open exchange of ideas promised by Fordham?” The administration responded that the decision was actually made because SJ groups at other schools have engaged in misconduct like disrupting speakers. Although, of course, they gave no examples. When we responded, “what about freedom of association?” They said their decision was final. When Fordham students protested the Dean’s decision, they were disciplined by that same dean for failing to get written approval by him for the demonstration. Even though they had notified him about it, he had designated a liaison and he had shown up. The students are still fighting though and there is increasing pressure on the University to grant the club official status.

As we know, it is not just students who are punished for speaking out, it is faculty. As it was with the case with Professor Salaita, that was mentioned earlier. As I think you know, he was terminated from a tenured position for his tweets about Gaza. But, let’s also remember that in our case against the U of I, the court said he did have a contract, his tweets were protected by the First Amendment. Ultimately, the chancellor resigned. The American Association of University Professors censured the university. The university is still under censure and Professor Salida has settled his case. Despite pressure on faculty, several academic associations have endorsed the call for boycotts of Israeli academic institutions. I think, even though the MLA’s resolution didn’t pass, I do see it as a success for the BDS movement and for the struggle. Just in having the debate. Just in that people are so active in seeking to pass such resolutions.

As a little background about the suppression, in 2013 when the American Studies Association passed a resolution to boycott academic institutions in Israel, members received death threats and were ultimately sued. The suit was brought by a few members of the association that were represented by the Brandeis Center. The claims were that they acted outside their authority, that they breached their fiduciary duties, and other process claims. Defendants have moved to dismiss the case because it’s meritless and because it infringes on their first amendment speech rights. But of course, even though the case should be dismissed, and I hope it will, it’s still a harassing tool of intimidation that’s used to silence BDS advocates.

In a similar case that was mentioned. CCR represents Olympia Food Co-op members, and that’s a nonprofit in Washington state and that’s where Rachel Khouri is from, it was the first business to boycott Israeli goods. They were also sued by a few members for allegedly exceeding their authority and breaching their fiduciary duty. Although the case was brought by a few members, Stand With Us has taken credit for bringing the case in partnership with the Israeli Foreign Ministry. We were able to get the case dismissed under Washington State’s anti-slapp law, that is a strategic lawsuit against public participation. Essentially, we argued it’s a meritless case and it’s targeting free speech on a matter of public concern. The court agreed and dismissed the case and we actually got damages against the plaintiffs that brought it. We won on appeal but on the Washington State’s Supreme Court, they struck down the statute. So we went back to the trial court. We’re on our fifth judge. The case was brought in 2011, it’s still going on. We lost our motion to dismiss. So our clients, who are now fifteen former volunteer board members of the Olympia Food Co-op, not only are subject to discovery; having to disclose all of their documents that mention Israel or boycott, they are also subject to deposition. It is clearly a tool that can be quite effective in trying to suppress decent. But, it’s only effective if we let it be.

Also in response to the ASA’s resolution, when it was passed, legislatures, a few of them around the country, introduced bills to take away state funding from any state college that used state-aid to fund any academic organization that issued statements advocating a boycott of Israel. Mobilization prevented those bills from being passed, but then a whole other slate of anti-boycott legislation was introduced and have been popping up in many states. According to the Executive Director of the Emergency for Israel, who has supported the nationwide legislative effort, legislating against BDS tells its proponents that, “while you are doing your campus antics, the grownups were in the state legislature passing laws that make your cause improbable.” It’s been reported that in cooperation with the Israeli Foreign Ministry, Israeli advocacy organizations are also behind the legislation.

So what is the legislation? In 2015 Illinois passed the first anti-BDS law, requiring the establishment of a blacklist of foreign corporations that boycott Israel and it compels the State Pension Fund to divest from any of those names on the list. Some state laws like Florida not only prevents investing in boycotting companies but also the state contracting with those companies as well. Activists had mobilized against similar bills in New York. So Governor Cuomo bypassed the legislative process calling it, “tedious” and issued an executive order instead. The executive order, similarly, created a black list of institutions and companies that engage in BDS and requires the state to divest from them. The American Jewish community lobbied for the law and Governor Cuomo has been named Chair of the AJC’s Governor’s Against BDS Initiative. So, we might be seeing executive orders in other states as well. Maryland currently has bills to create a blacklist of persons and to prevent pension funds from investing in them and state contracts with them. Persons in the Maryland bill explicitly includes natural persons, people, and non-governmental organizations. Meaning, that individuals, churches, foundations, trade unions, and other groups who have been boycotting and divesting from Israel can also be blacklisted and can also be denied state contracts for that. There is a large, very well organized, coalition fighting the legislation in Maryland and there have been hearings this week, so stay-tuned. We’re hoping that it will be defeated. There’s others legislation like that, passed in South Carolina, which prohibits any public entity from doing business with any companies engaged in discriminatory boycotts based on race, color, religion, gender, or national origin. They don’t specifically mention Israel but, there is evidence that that why they were passed and that’s what they are targeting. Even though BDS is based against Israel’s violations of international law not based on national origin or discriminatory purpose. In fact, New York has a similar law that has been on the books for a long time and when ASA passed their resolutions, Shurat HaDin; The Israel Law Center threatened to sue the ASA under that provision.  

Virginia, South Carolina, and Congress have introduced bills that would expand the definition of anti-semitism to include criticism of Israel for purposes of determining whether someone is discriminated against based on their religion. These bills adopt the definition of anti-semitism used by the Department of State to monitor human rights violations around the world. They use their human rights country reports. Basically their definition lists, “anti-Semitism related to Israel known as the three D’s as demonizing Israel, applying a double standard to Israel, and delegitimizing Israel. Obviously these bills are problematic on many levels, including that they undermine that fight against true anti-Semitism. Not to mention that they focus exclusively on anti-Semitism and to the exclusion of Islamophobia, homo and transphobia, and other kinds of racism and etc. So, activists recently defeated BDS legislation in Virginia, which was a big success. It would have amended their human rights act to which would have applied in the workplace and public accommodations and educational institutions as well. So all in all, 16 states have passed anti-BDS laws of one form or another. There have been many more, probably around 60 measures introduced all together. You can find out more about your particular state’s legislation at and you can also look at Palestine Legal and CCR’s website for more information about those laws.

There is also some federal legislation. In December the senate, passed by unanimous consent, the anti-Semitism Awareness Act, which is similar to the bills I just mentioned, would have required the department of education to consider the department’s definition of anti-Semitism in determining whether the university had discriminated under Title Six of the Civil Rights Act of 1964. It died in the house but the doesn’t mean it won’t be back. There is a current bill in congress, the combating BDS act, this bill attempts to take away the argument that state anti-BDS laws should be struck down because they are preempted by federal law. But the main argument against state BDS laws is that they violate the first amendment and that can’t be changed by congress. There was also people who are probably familiar with the 2015 Trade promotion Authority Law, which requires the US government in trade negotiations with EU countries to discourage BDS or trade barriers with Israel. Who knows what’s coming on the federal level? Nikki Haley, who is Governor of South Carolina, signed its anti-BDS laws, now Ambassador to the UN. Of course, we are waiting to see what happens to Friedman, but he previously laid out the position that the U.S. should view BDS as inherently anti-Semitic and should take strong measures with diplomatic and legislative to thwart it. He also took the position that the Administration would ask the Department of Justice to investigate coordinating attempts to intimidate Israel supporting students in campus. Which had been happening, you know Zionist Organization of America had been filing complaints against universities where there was Palestinian rights activists on campus and saying it was a hostile environment for Jewish students and that those complaints were dismissed with the Department of Education of Civil Rights saying that there was First Amendment protect expression that wasn’t a violation.

So, what about the First Amendment? Under the First Amendment, Congress cannot pass a law abridging our freedom of speech, our right to assemble, or petition the government. The First Amendment applies to states through the 14th Amendment due process clause. So, states cannot abridge our First Amendment rights either. The government cannot regulate speech based on its substantive content or the message it conveys. Laws cannot discriminate based on viewpoint and that’s exactly what these laws are doing. The Supreme Court has also made clear that non-violent boycotts to bring about political, social, or economic change are protected expressions under the First Amendment. That case was the NAACP vs. Claiborne, which stemmed from the boycott of white businesses in the 60s in Mississippi to demand racial equality. As we know, boycotts have a long and honored history in our country and globally to bring about social change. Also, the government cannot condition a benefit on the requirement that a person forgo a constitutional right. Likewise, they can’t deny a benefit to a person because he or she exercises their constitutional rights. So, these unconstitutional laws attempt to penalize and chill expression of a particular viewpoint but it is important to remember that these laws cannot take away your right to boycott Israel or your right to advocate for BDS. It’s important that people are not chilled from speaking out, but it is also critical that we resist giving into the distraction of focusing on our speech rights in the United States and instead use these opportunities to demand Palestinian human rights and freedom and demand an end to Israel’s international law violations, 50 year-old occupation, and its regime of apartheid.

I do think it is a success, frankly, that state legislatures and some counties are talking about BDS. They care about BDS just like Israel cares about BDS. Even if they are passing laws against it, it is part of the discussion and an opportunity to talk about Palestinian human rights. It’s also critical that the struggles unite because we are facing increasing descent, across the board, in this country, not just against Palestinians obviously. So it’s important that the struggles are united. All of this legislation and all of these other efforts to suppress speech against Israel’s occupation and other violations of law illustrates the power that the movement for Palestinian human rights has to expose these abuses and eventually help bring them to an end. Thank you.