The Palestine Exception

One of the world's most important academic organizations has a choice: uphold academic freedom, or provide cover for Israel's crimes.

A portion of the wall surrounding the Palestinian city of Bethlehem. Dani Montero / Flickr

In the coming weeks, the Modern Language Association (MLA) could vote to simultaneously protect and abridge its members’ rights to academic freedom.

Whether this contradiction will hold, or whether it will give way to an ethically consistent stance, will say a lot about the MLA. And it will set a precedent for other organizations contemplating a boycott of Israeli state institutions.

Members of the MLA, the world’s largest organization of literature and language scholars, are now considering two resolutions (voting opened on April 19 and ends June 1). One calls on the MLA to “refrain from participating in a boycott of Israeli universities.” The other asks that the association endorse the American Association of University Professors’ document, “Higher Education after the 2016 Election.” The resolution notes that the MLA “upholds the ideal of free and unfettered scholarly exchange, including the right to travel across international borders”; that the group “opposes discrimination . . . on the basis of race, gender, class, ethnicity, color, age, sexual orientation, disability, religion, political belief, or national origin”; and that “the Trump administration threatens to violate these core principles of democracy and academic freedom.”

If it approves both measures, the MLA would be voting to safeguard its members’ academic freedom while stifling a mode of protected speech — a boycott — meant to facilitate academic freedom for a people who are unable to freely travel across international borders, and who are discriminated against because of their race, ethnicity, political beliefs, and national origin.

The MLA would be succumbing to the “Palestine exception,” where apologists sing the praises of free speech, while bending over backwards to shield Israel from any protest or criticism.

Unfortunately, they wouldn’t be alone. Academic organizations are increasingly curtailing their members’ free speech rights in relation to Palestine, often out of a purported desire to avoid dividing the organization or steering it off course.

One common tactic is ultra vires lawsuits. Writing in the Wall Street Journal in 2015, legal scholars Eugene Kontorovich and Steven Davidoff Solomon made the case that the obscure legal doctrine rendered such boycotts illegal:

Under corporate law, an organization, including a nonprofit, can do only what is permitted under the purposes specified in its charter. Boycott resolutions that are beyond the powers of an organization are void, and individual members can sue to have a court declare them invalid. The individuals serving on the boards of these organizations may be liable for damages.

Recently, however, in the first test of whether ultra vires applies to a boycott-supporting organization, a federal court answered in the negative:

As shown by the preamble of the resolution, the [American Studies Association] passed the boycott resolution because, in its view, Israel suppresses the academic freedom of Palestinian scholars and students, and the United States “plays a significant role in enabling” that suppression. . . . The ASA also did so as a show of solidarity with those scholars. . . . The boycott resolution was, therefore, enacted for “academic purposes,” at least to a point where it was not in violation of the ASA’s founding documents.

The court, in other words, found that advocating for Palestinian rights is well within the ASA’s purview.

But what is equally significant is that the judge dismissed the argument that the plaintiffs were trying to suppress their free speech rights. As Kontorovich himself acknowledged this month, “the dispute does not involve any state action, but rather members of an organization seeking to enforce the group’s own private rules and arrangements.”

And this is precisely what is at stake in the MLA vote: what the organization’s “private rules and arrangements” will be. Obviously, MLA members are free to say anything they want about the boycott, and choose to participate in it or not. What the MLA now has to decide is whether it wants to set a precedent of prohibiting members from acting collectively.

Responding to Kontorovich and Solomon in a piece published in the Academe Blog, historian Peter N. Kirstein got to the nub of the issue. “What I found particularly troubling,” Kirstein wrote, “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.”

The fact of the matter is, the MLA has already passed a resolution condemning boycotts of individual scholars; its delegate assembly already rejected a resolution endorsing the academic boycott of Israel.

What the resolution in question seeks to do is to make it impossible to ever raise the subject again, regardless of future events or the desires of MLA members. It would expand the scope of potentially verboten subjects, for if one can prohibit discussion of one topic there’s no reason others can’t be banned as well.

If the MLA passes this resolution, there is little need to worry about what Donald Trump may or may not do to its members’ academic freedom — it will have already ceded a large portion of those rights, in perpetuity. What a defining moment for the MLA, and academic organizations in general, at a time when we need more, not less, public scholarship and advocacy.