Lea Spyer
Algemeiner
January 13, 20175

A legal expert last week called the US Department of Education (DoED) “paralyzed” when it comes to protecting Jewish students, due to the absence of a system-wide definition of antisemitism.

In an op-ed in Politico on Wednesday, Kenneth Marcus — president of the Louis D. Brandeis Center for Human Rights Under Law and the author of The Definition of Antisemitism — wrote that DoEd’s department charged with combating hate crimes on campus is “stymied by antisemitism cases,” even though the phenomenon has reached “tipping point around the country.”

To rectify the situation, argued Marcus — former head of the DoEd’s Office for Civil Rights — called on the body to adopt the State Department’s definition, which “addresses a core concern on campus, exactly where anti-Israel activities cross the line into antisemitism.”

Marcus’ comments echo the demands of a stalled bipartisan Congressional bill, the Antisemitism Awareness Act, whose opponents claim will infringe on free-speech rights. House representatives and legal experts rejected this on the grounds that the bill was carefully worded to uphold constitutional freedoms.

Marcus called the bill “encouraging,” but urged lawmakers to prioritize its passage now that Congress is back in session.

We must “give the new secretary of education the tools necessary to stamp out this ugly blight of campus antisemitism,” he wrote.

The Antisemitism Awareness Act was first brought to the Senate in early December, where it passed unanimously. An identical motion in the House failed to pass due to scheduling issues.

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Katherine Hung
Brandeis Blog
January 13, 2017

On New Year’s Eve, Michigan Governor Rick Snyder signed two anti-BDS bills into law. The bipartisan legislation—previously bill HB 5821 sponsored by Reps. Al Pscholka, Mike Calton, Jeremy Moss, and Andy Schor, and bill HB 5822 sponsored by Rep. Robert Wittenberg—prohibits the state from hiring businesses that boycott individuals or public entities of a foreign nation.

The new law states that the Department of Management and Budget and all state agencies “may not enter into a contract with a person to acquire or dispose of supplies, services, or information technology unless the contract includes a representation that the person is not currently engaged in, and an agreement that the person will not engage in, the boycott of a person based in or doing business with a strategic partner.”

These measures, which are now Public Acts 526 and 527 of 2016, condemn national origin discrimination and thus the efforts of the anti-Israel boycott, divestment, and sanctions movement (BDS). In effect, the new legislation outlaws business relations between public entities of the state of Michigan and companies that practice BDS policies.

The Public Acts protect Michigan’s economy from the devastating effects of boycotting Israel. Michigan benefits from tens of millions of dollars in annual economic trade with Israeli entities and partners with commercial interests in Israel. Their trade encompasses some of the state’s most important economic sectors—namely, technology research and development, defense, and health sciences. The BDS effort to restrict trade with Israel would threaten the future prosperity of both Michigan and Israel, a danger which Public Acts 526-527 effectively mitigate.

The recent legislation sends a strong message that Michigan will not support the anti-Semitism and intolerance of campaigns like the BDS movement. It is not only an anti-BDS victory, but also a triumph against prejudice and the practice of holding Israel to a double standard.

Michigan’s efforts come in the wake of similar action from other states in recent months. Ohio passed an anti-BDS law in December, following legislation in Pennsylvania in November, California in September, New Jersey in August, and Rhode Island in June. Michigan joins awcwnrwwn other states in opposing BDS. This new legislation marks the rising tide of state governmental efforts against BDS and points to continued success of the anti-BDS movement.

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Katherine Hung
Brandeis Blog
January 13, 2017

Videos from the Second Bristol-Sheffield Hallam Colloquium on Contemporary Anti-Semitism, chaired by Lesley Klaff and J.G. Campbell, are now available here.

This past fall, LDB President and General Counsel Kenneth L. Marcus spoke at the Second Bristol-Sheffield Hallam Colloquium on Contemporary Anti-Semitism. The theme of the colloquium was “Anti-Semitism in the Media: The Old and The New.” Panelists spoke about a diversity of topics, ranging from anti-Semitic language in German liberal web discourse to Palestinian liberation theology as a medium for contemporary anti-Semitism.

Marcus presented a talk entitled “The Ideology of Jihadi Digital Mass Media,” in which he discussed the prevalence of anti-Semitism in online magazines of Jihadi organizations. Marcus explained how criticism of Jews—previously lumped together with criticism of Christians or Westerners in general—has grown more pointed, especially in Dabiq, an online periodical of the Islamic State of Iraq and the Levant. Jihadi mass media is featuring an increasingly specific stereotype of Jewish people. Their use of anti-Semitism, according to Marcus, serves four main functions: to market their organizations, inspire conversion, explain their worldview, and motivate action from their followers. Jihadi organizations, both those which appeal to the notion of a “near enemy” in Middle Eastern regimes, as well as those which oppose a “far enemy” in the United States and the West, seek to justify their global ambitions through a discriminatory perception of Jewish people.

The Second Bristol-Sheffield Hallam Colloquium on Contemporary Anti-Semitism is an annual joint venture between Bristol University’s Department of Religion & Theology and Sheffield Hallam University’s Helena Kennedy Centre for International Justice. Speakers are invited from the UK, Europe, Israel, and the United States to share their work and research on anti-Semitism in the modern world. At September’s colloquium, President Marcus was joined by numerous scholars and activists, including Ben Cohen, Director of Coalitions at the Israel Project; Peter Wells, Professor of Public Policy Analysis at Sheffield Hallam University; Sital Dhillon, Head of the Department for Law and Criminology at Sheffield Hallam University; and Bernard Harrison, Emeritus E.E. Ericksen Professor of Philosophy at the University of Utah. The conference was held on September 13-15, 2016 at Sheffield Hallam University.

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Washington, D.C.- The Louis D. Brandeis Center for Human Rights Under Law (LDB) commends the Modern Language Association’s (MLA) Delegate Assembly for voting down a resolution to boycott Israeli academic institutions. LDB had cautioned the MLA against this controversial anti-Israel BDS resolution in December, pointing out that it could subject the association to liability under Maryland law.

LDB President Kenneth L. Marcus commented, “We are glad that MLA members listened to our advice that the BDS resolution, apart from its anti-Semitism, would violate the association’s charter. Since we filed our federal anti-BDS lawsuit against the American Studies Association, the word is getting out that tax-exempt corporations need to advance their missions rather than engaging in extraneous anti-Israel political advocacy. We are also grateful for the MLA scholars who have indicated that our work was helpful to them in resisting this anti-Semitic measure.”

The MLA’s delegate assembly discussed the legality of the resolution prior to the vote, and this appears to have helped swing opinion against the measure. A leading BDS advocate highlighted the Brandeis Center’s role when he bemoaned that, “Part of the reason the vote was so lopsided might be that the anti-boycott group was aided by the Brandeis Center’s threat of a lawsuit against the MLA if it let the vote go forward . . . .”

LDB’s letter informed MLA leaders that the “boycott resolution is clearly unrelated to promotion of the study, criticism, and research of modern languages and literature. Indeed, it does not even purport to be intended to further the field of modern languages.” LDB’s letter further explained the potential illegality of such a resolution, stating:

A corporation, including an incorporated non-profit academic association, is only empowered to act in furtherance of its corporate mission. Where a corporation acts outside of its power or capacity, as set forth in the corporate mission, the act is ultra vires and subject to injunction, liability, or both under Maryland Code, Corporations & Associations § 1-403.

Marcus added, “If this was intended as a criticism, we are willing to take it. Obviously, it would be better for scholars to reject such anti-Semitic measures without our having to intervene. Nevertheless, it is better for them to do the right thing under threat of litigation than for them to break the law and face the consequences later.”

The resolution was ultimately rejected with 79 in favor, and 113 against.
Significantly, a counter resolution for the MLA to refrain from endorsing an academic boycott of Israel passed the Delegate Assembly with 101 votes in favor to 93 against. This measure reflects the Brandeis Center’s admonitions about the need to avoid ultra vires activities. This resolution emphasizes that that “endorsing the Palestinian Campaign for the Academic and Cultural Boycott of Israel contradicts the MLA’s purpose to promote teaching and research on language and literature.” The resolution will be reviewed by the MLA’s executive council before it is presented to the entire MLA membership for a vote.

The MLA’s failed BDS resolution was similar to a 2013 American Studies Association (ASA) resolution to boycott Israeli academic institutions. This past April, LDB, along with prominent litigators at Marcus & Auerbach and Barnes & Thornburg, filed a lawsuit against the ASA on behalf of four distinguished American Studies professors, challenging this unlawful boycott of Israel.

The ASA lawsuit has been influential. Since its filing, the American Anthropological Association and the Modern Language Association have both backed down from passing similar resolutions. LDB’s advocacy has been credited in both cases.

This vote represents yet another blow to the anti-Semitic Boycotts, Divestment, and Sanctions (BDS) movement. Marcus commented, “We salute the courageous scholars at MLA and elsewhere who have stood up and fought against these discriminatory and unlawful measures, and we have been pleased to play our part as well.”

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Washington, D.C., The Louis D. Brandeis Center for Human Rights Under Law (LDB) proudly announces the appointment of Aviva J. Vogelstein to Director of Legal Initiatives. Ms. Vogelstein joined the Brandeis Center in 2014, first working as a Civil Rights Legal Fellow and then as Staff Attorney. LDB (www.brandeiscenter.com) is a national civil rights organization committed to combatting anti-Semitism in higher education through legal advocacy.

Ms. Vogelstein graduated from the University of Pennsylvania in 2010, magna cum laude, with a BA in American History, and from the Benjamin N. Cardozo School of Law in 2013. She is passionate about fighting against the resurgence of anti-Semitism and anti-Semitism masked as anti-Israel sentiment, and advancing the Center’s commitment to justice for Jewish people. Since joining the Brandeis Center, Ms. Vogelstein has advocated on behalf of Jewish students and professors on dozens of campuses nationwide, has worked to expand the Brandeis Center’s law student chapter initiative to an impressive 18 chapters, and has helped curb anti-Semitism through educative and public policy approaches.

Ms. Vogelstein’s appointment marks the ongoing expansion of the Center’s legal advocacy initiatives. In April, the Brandeis Center filed a federal lawsuit against the American Studies Association for its boycott of Israeli universities. The Center has warned the Modern Language Association of similar litigation if it passes its proposed BDS resolution. At the same time, the Brandeis Center has increased the number of its law school chapters, which have been effective in battling campus anti-Semitism and educating their communities about the legal tools necessary to combat anti-Israelism.

“Aviva has made incredible contributions to our expanding legal efforts,” says Brandeis Center President & General Counsel Kenneth L. Marcus. “We are honored to have her working with us. Aviva’s excitement, dedication, and skills will continue to propel the Center forward in its mission to promote the civil rights of Jewish students.”

Elizabeth Redden
Inside Higher Ed
January 4, 2017

When the Modern Language Association’s Delegate Assembly meets this Saturday in Philadelphia, its members will take up three proposed resolutions: one endorsing the boycott of Israeli academic institutions, one opposing it and a third condemning alleged attacks on academic freedom in Palestinian universities by Palestinian political organizations.

The question of whether the MLA — an association made up of about 25,000 humanists — should lend its support to the academic boycott movement is back on the group’s agenda after a two-year hiatus. The debate at Saturday’s Delegate Assembly meeting may well be contentious, if the debate over a resolution that was critical of Israel but did not embrace an academic boycott proposed at the 2014 MLA convention is any indication.

Already, a pro-Israel legal advocacy center — the Louis D. Brandeis Center for Human Rights Under Law — has sent MLA leaders a letter urging them to table or reject the pro-boycott resolution and raising the threat of a lawsuit like the one it helped file against the American Studies Association after it approved a similar resolution. About half a dozen U.S.-based scholarly associations, including the American Studies Association and the National Women’s Studies Association — have formally expressed their support for the boycott of Israeli academic institutions since 2013. Members of the American Anthropological Association narrowly voted down a pro-boycott resolution in the spring.

Even if the MLA’s Delegate Assembly approves a pro-boycott — or for that matter, an anti-boycott — resolution this Saturday, the matter will not be conclusively decided. Any resolutions approved by the Delegate Assembly will be forwarded on, first to the MLA’s executive council, which under the association’s rules is charged with conducting a review of the “constitutional, legal and fiduciary issues posed by the language of each resolution approved by the Delegate Assembly.” The council will then determine whether to pass it along to the full membership of the association for a vote.

A change to MLA’s bylaws that went into effect in 2012 requires a resolution to receive the support of 10 percent of all members in order to pass. Since that bar’s been in place, only two of six resolutions submitted to the full membership for a vote have been ratified. The 2014 resolution on Israel, for example, which described Israel as an “occupying power” and called on the association to protest “Israel’s denials of entry to the West Bank by U.S. academics who have been invited to teach, confer or do research at Palestinian universities,” was approved by a majority of voting members but failed to become association policy after falling short of the 10 percent threshold.

The debate over the boycott, divestment and sanctions (BDS) movement at this year’s MLA convention comes as Israel has been in the news and as U.S.-Israel relations are as tense as they’ve been in years. On Dec. 23, the U.S. abstained from voting on a United Nations Security Council resolution condemning Israeli settlement building in “the Palestinian territory occupied since 1967, including East Jerusalem” — an abstention that cleared the way for the resolution to pass. Secretary of State John Kerry subsequently delivered a speech in which he characterized Israeli settlement building in the West Bank as an impediment to a two-state solution to the Israeli-Palestinian conflict and described the status quo as “leading towards one state and perpetual occupation.”

President-elect Donald J. Trump meanwhile has pledged he will take a less critical tone toward Israel when he takes office Jan. 20 and has announced as his choice for ambassador to Israel David M. Friedman, a far-right defender of Israeli policies who has accused President Obama of “blatant anti-Semitism.” Writing for the Israeli publication Arutz Sheva, Friedman described supporters of the left-leaning Israel advocacy group J Street as “far worse than kapos — Jews who turned in their fellow Jews in the Nazi death camps.”
It seems likely that current events will be discussed during Saturday’s Delegate Assembly debate on the pro- and anti-boycott resolutions. The former is framed as a response to what the resolution text describes as Israel’s “systematic denial of academic freedom and educational rights for Palestinian scholars and students.” The text of the resolution also cites in a “whereas” clause the U.S.’s support for “Israel’s ongoing violations of human rights and international law.”

Rebecca Comay, one of two proposers of the pro-boycott resolution and a professor of philosophy and comparative literature at the University of Toronto, described it as “a matter of utter urgency that the MLA take a stance on this burning issue.”

“It’s an organization dedicated to nourishing intellectual inquiry in the humanities and defending academic freedom and [the] right to education — this is an explicit part of its core mission,” Comay said via email. “How can we turn a deaf ear to the appeal of our Palestinian colleagues whose academic rights are being so flagrantly and systematically violated (along with so many other fundamental human rights that are being trampled on a daily basis)? This is a moment where our actions might actually make a difference. This of course in no way diminishes our responsibility to attend to other injustices — including on our own turf (obviously now of all times) — but these responsibilities are not in competition; they are completely connected.”

“It is a mistake to think that the vote is a way to express sympathy for the abuse of Palestinians because what is on the table is an academic boycott of Israeli universities, the institutions at which many Arabs gain their education,” countered Rachel S. Harris, an associate professor of Israeli literature and culture in the program in comparative and world literature at the University of Illinois at Urbana-Champaign. “There are better ways that we as an organization can express sympathy for Palestinians that would actually advance directly the quality of their lives and educational experiences. We can do it through positive measures such as fellowships, funding grants to attend conferences, free subscriptions to MLA publications, the study of Palestinian literature and culture. There are important ways that we can help Palestinians within the framework of our profession and our professional organization, and BDS just isn’t one of those.”

Harris is involved in the leadership of MLA Members for Scholars’ Rights, which she describes as a group that opposes academic boycotts in line with the American Association of University Professors’ position. The AAUP opposes academic boycotts as restricting the free exchange of ideas and urges other academic associations to “seek alternative means, less inimical to the principle of academic freedom, to pursue their concerns.” Supporters of the BDS movement argue that by design it limits collaboration with Israeli academic institutions, not individuals, with whom foreign scholars can still maintain collaborations and connections. But opponents argue that institutions are comprised of individuals, and that they’re the ones hurt if, say, foreign academics don’t come to conferences hosted by Israeli universities — and that staying away from an Israeli university because of Israel’s policies is as unfair as boycotting American universities because of the election of Trump, who was not exactly popular among MLA members.

“We are concerned that there are major issues facing the profession,” said Harris, who cited as examples the “adjunctification” of the professoriate, the loss of tenure protections in Wisconsin and cuts to budgets of predominantly minority-serving institutions, “and that these topics are not being addressed because all of the oxygen in the room is being sucked out to engage in this one topic, which does not directly affect the teaching and instruction of languages and literatures and cultures.”

“The key argument is it ain’t our business,” said Cary Nelson, the Jubilee Professor of Liberal Arts and Sciences at the University of Illinois at Urbana-Champaign and another opponent of academic boycotts — “that MLA doesn’t need a foreign policy, that such a resolution would divide the membership, that such a resolution would undermine the nonpolitical character of the association and that people who want to take a stand on this issue should either do it individually or do it through organizations that are devoted to politics, which we’re not.”

Russell A. Berman, a former MLA president and one of two proposers of the anti-boycott resolution up for consideration this Saturday, described academic boycotts as “incompatible with the mission of the MLA.”

“Any MLA member who signed up believing that the constitution [of the association] holds could see a boycott adoption as effectively a breach of contract,” said Berman, the Walter A. Haas Professor in the Humanities at Stanford University. “I believe that if we were to endorse a boycott, we would be acting specifically against the constitution of the MLA, because the universities we would be boycotting are themselves pursuing the goals of the MLA — that is, the study and teaching and research of modern languages.”

The Brandeis Center makes a similar argument in its letter raising the possibility of legal action against the MLA. The letter argues that the boycott “resolution seeks unprecedented action from the MLA that is far beyond the capacity and powers set forth in the MLA’s corporate charter. It is also inconsistent with the mission and programs that the MLA reports to the [Internal Revenue Service] in the Form 990.” (The Form 990 is a required tax form for registered nonprofits.)

“As you may be aware, the Brandeis Center represents members of the American Studies Association (ASA) in a lawsuit against the ASA challenging a resolution very similar to the one at issue here,” the Brandeis Center’s letter states. “That lawsuit alleges, inter alia, that the ASA resolution is ultra vires” — a legal term suggesting something that is beyond an entity’s scope of authority — “and illegal. For the same reasons, we believe that the MLA’s proposed boycott resolution is also ultra vires, and would be illegal under the law of Maryland,” where the MLA is incorporated.
The lawsuit against the ASA is pending. At the time it was filed, in April, the legal advocacy organization Palestine Legal issued a statement challenging the Brandeis Center’s legal reasoning.

“The ASA’s academic boycott resolution is aimed at challenging U.S. support for a system that denies academic freedom to Palestinian students and scholars,” the group said in a statement. “As such, the resolution falls squarely within the educational purposes for which ASA was established. Plaintiffs’ theory that the ultra vires doctrine — a corporate law theory — could limit the ASA’s First Amendment right to endorse the academic boycott is meritless and will likely be thrown out by the court.”

“For some years now, opponents of the boycott resolutions have turned to coercive means — lawsuits, legislative acts, so-called civility policies to shut down free speech on campus, and the opportunistic attempt to define criticism of Israel or of Zionism as anti-Semitic — where they find it impossible to oppose BDS with rational arguments,” said David Lloyd, another proposer of the boycott resolution and a distinguished professor of English at the University of California, Riverside. Lloyd described the ASA lawsuit and the letter to the MLA as “another manifestation of the impossibility of publicly defending Israel’s violations of international law with any consistency. Coercion is not a very strong argument and will only repel people, as it is already doing.”

Rosemary Feal, the association’s executive director, said the MLA has “a careful and well-established procedure to protect the association.”
The association’s constitution calls on the executive council to review any resolutions approved by the Delegate Assembly to determine whether to submit them to the full membership for a vote or to withhold it for one or more of four reasons. Those reasons are:
“the resolution impedes the council’s ability to carry out its fiduciary responsibilities”;
“the resolution contains erroneous, tortious or possibly libelous statements”;
“the resolution, by itself or taken with other resolutions, poses a threat to the association’s continuing operation as a tax-exempt organization”; or
“the resolution is not consistent” with the MLA’s constitutionally stated purpose or the constitutional language governing subject matter for resolutions.

“The executive council does a fiduciary review; our attorneys are asked to give their opinion,” said Feal. “I can tell you that in my almost 15 years doing this the executive council takes these duties extraordinarily seriously and will do so this February if there is a resolution for them to review.”
“At this stage our responsibility is to take resolutions that come in and make sure that they are formulated according to our governance procedures and make sure that the process is fair and make sure members get a chance to express themselves and have conversations and exchanges,” Feal continued. “It seems to me that a scholarly association should encourage a high level of discussion on issues that are relevant to the members. If members submit resolutions, then to the members who’ve submitted the resolution these issues are relevant. Let us see whether other members of the Delegate Assembly share those concerns and the membership at large share those concerns.”

In advance of the boycott votes, the two main groups that have mobilized to support or oppose the boycott within the MLA — the pro-boycott MLA Members for Justice in Palestine and the anti-boycott MLA Members for Scholars’ Rights — have issued blog posts and other resources on their respective websites. The former group has, for example, published testimonies from scholars in support of the boycott, a compendium of statements from Palestinian students and academics, and a report on a trip to Palestinian universities by a group of six MLA members that took place last June. On Monday, Cary Nelson, who’s involved with the leadership of the anti-boycott group, published an essay in the British publication Fathom responding to and rebutting the trip report. MLA Members for Scholars’ Rights has also disseminated letters from scholars against the boycott — including one signed by 12 former association presidents — and a “myths and facts” document countering a competing “myths and facts” document prepared by the pro-boycott group.

In addition to the two boycott-related resolutions, the third resolution on the agenda for this Saturday’s Delegate Assembly meeting calls on the MLA to “condemn attacks on academic freedom in Palestinian universities, whether they are perpetrated by the Palestinian Authority or by Hamas.”

“I believe that as MLA members, we should support academic freedom,” said Agnes C. Mueller, the proposer of the resolution on Palestinian political organizations and the College of Arts and Sciences Distinguished Professor of the Humanities at the University of South Carolina. “In the documentation appended to the resolution, I have demonstrated wide recognition of attacks on academic freedom by the Palestinian Authority and Hamas.” The supporting documentation includes a summary of a report on academic freedom in Palestinian universities authored by Cary Nelson in which he argues that “the most serious threats to academic freedom in Gaza and the West Bank come from Palestinian society itself” (a version of that report is available here), as well as articles from Scholars at Risk, Human Rights Watch and several media outlets, including The Electronic Intifada, Haaretz and Inside Higher Ed.
“The proponents of the boycott call themselves MLA Members for Justice in Palestine,” Mueller said via email. “Here are real cases of injustice, documented by serious sources. If they really support justice in Palestine, they should support this.”

Lloyd, one of the proposers of the pro-boycott resolution, described the resolution on Palestinian political organizations as “obviously a red herring, designed to obscure the issues and put forward by people who have no genuine interest in Palestinian academic freedom.”

Comay, the other proposer of record, said that the boycott is being called for by Palestinian civil society groups. “In other words, to support the boycott against Israeli institutions does not necessarily imply endorsing the current leadership of Palestine or any particular political party in Palestine,” Comay said. “That said: the state of Israel is by far the greatest perpetrator of human rights abuses on the Palestinian population, including assaults on academic freedom and rights to education, as has been documented by numerous international sources (from Amnesty International to the United Nations). The boycott resolution not only serves to shine a spotlight on these abuses but seeks to redress them.”

Aviva Vogelstein
Brandeis Blog
December 20, 2016

On Monday, Ohio Governor and former Republican presidential candidate John Kasich signed an anti-Boycotts, Divestment, and Sanctions (BDS) bill into law.

The anti-BDS bill prohibits Ohio state agencies from contracting “with a company that is boycotting Israel or disinvesting from Israel.”

LDB Senior Staff Attorney Jennie Gross testified in front of the Ohio Senate Government Oversight and Reform Committee in support of the bill on December 6, and LDB President and General Counsel Kenneth L. Marcus testified in support of the bill in front of the Ohio Assembly earlier this year.

Kasich is the seventeenth governor to sign an anti-BDS bill into law.

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