In this second episode of "Reclaiming Academic Freedom," host Tareq Radi speaks to Omar Shakir, Yaman Salahi, and Nadia Ben Youssef, three lawyers who discuss the legalities of academic freedom and the legal challenges they face both in the United States and the Palestinian 1948 territories.
The special segment below includes four parts that you can click on separately. Please find the transcript below the player. Listen to the first episode of Reclaiming Academic Freedom here.
Omar Shakir is a Bertha Fellow at the Center for Constitutional Rights, where he focuses on unlawful detentions at Guantánamo prison, U.S. targeted killing practices, and Palestinian rights issues. Prior to joining the Center for Constitutional Rights, Omar was a fellow at Human Rights Watch, where he investigated human rights abuses in Egypt and was lead researcher and author of “All According to Plan,” a report that documents the mass killings of protesters in Egypt in July and August 2013, including the Rab’a Massacre. He is also a co-author of “Living Under Drones,” a joint Stanford-NYU report documenting civilian consequences of U.S. drone strikes in Pakistan. Omar, a former Fulbright Scholar in Syria, obtained his J.D. from Stanford Law School, M.A. in Arab Studies from Georgetown University, and B.A. from Stanford, where he founded Students for Palestinian Equal Rights. He has been interviewed on major news outlets, including the BBC, Al-Jazeera, and NPR.
Yaman Salahi is a Staff Attorney in the National Security and Civil Rights Program at Asian Americans Advancing Justice-Asian Law Caucus. He focuses on advancing the civil rights and liberties of persons affected by post-9/11 federal and local government policies and practices, particularly Arab, Middle Eastern, Muslim, and South Asian communities. Yaman was previously an Arthur Liman Fellow at the American Civil Liberties Union of Southern California, where he worked on litigation related to post-9/11 government surveillance programs at the local and federal level, in addition to community education, public advocacy, and other non-litigation initiatives.
Yaman graduated from Yale Law School, where he worked with the Workers and Immigrants Rights Advocacy Clinic to stop racial profiling by the East Haven Police Department against Latinos through public awareness, community mobilization, and civil rights litigation.
Nadia Ben-Youssef is a human rights lawyer and international advocate working to promote the rights of Palestinian citizens of Israel and Palestinians living under Occupation. Since 2010, she has worked in international advocacy with Adalah - The Legal Center for Arab Minority Rights in Israel first in the organization`s Naqab (Negev) office in southern Israel through 2013, and then as its first USA Representative. Prior to leading Adalah`s American advocacy efforts, Nadia focused primarily on challenging Israel`s violations of the human rights of the indigenous Palestinian Bedouin community through targeted international advocacy, media outreach, and public activities, including the Stop Prawer campaign to end forced displacement. She is increasingly interested in the intersection between art and advocacy in advancing human rights, and with Adalah, has initiated film and photography projects that seek to visualize and humanize human rights violations in Israel and the Occupied Palestinian Territory. She obtained an AB in Sociology from Princeton University and graduated cum laude from Boston College Law School with a concentration in Human Rights and International Justice.
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Special Segment Transcript
Transcribed by Michael Ernst
Part I—Introduction
Tareq Radi (TR): This is Tareq Radi hosting “Reclaiming Academic Freedom” on StatusHour, where we expose violations of academic freedom and repression on campuses—both in the region and the United States. For our second segment, we approach the issue of academic freedom from a legal perspective. Joining the segment are three lawyers: Yaman Salahi, Omar Shakir, and Nadia Ben Youssef.
Yaman Salahi—a staff attorney with the Asian Americans Advancing Justice Asian Law Caucus—carefully unpacks the controversial Title VI cases that were directed at campuses in the University of California (UC) system. His in-depth interview includes excerpts from the complaints the Department of Education investigated. He also shares his own investigative research, which revealed the various players behind the campaigns to silence critique of Israel on campus.
Omar Shakir is a Bertha Fellow at the Center for Constitutional Rights and Professor Steven Salaita’s representative in his civil suit against the University of Illinois Urbana-Champaign (UIUC). In Omar’s full interview, he discusses Professor Salaita’s case in layman’s terms before drawing parallels between the tactics waged against Professor Salaita and the tactics being deployed against students today. Omar also gives advice on how activists can use the law both to protect their rights and to promote social justice. Both Omar and Yaman are former members of Students for Justice in Palestine turned attorneys.
Finally, joining the program we have Nadia Ben Youssef, a human rights lawyer and the US representative for Adalah—the Center for Arab Minority Rights in Israel. Nadia discusses the difficulties of seeking justice within colonial courts as well as the specific laws that violate academic freedom and free speech.
If you somehow have not heard of Professor Salaita’s case, he signed a contract to be an associate professor in UIUC’s American Indian Studies program and was notified only two weeks before he was due to begin teaching that the university would not complete his appointment.
Omar Shakir (OS): Now the university from the very beginning acknowledged that it was acting on the basis of free speech. The university—in statements it released in the weeks after his termination—noted that his speech was uncivil, and the president of the university actually said, to quote President [Roger] Easter, “Polarization, bigotry, and hurtful dialogue inhibits reasoned discourse. Professor Salaita’s approach indicates he would be incapable of fostering a classroom environment where conflicting views would be given equal consideration.” So for the university, they chose from the very early stages to make this about the notion of civility.
Now the irony of the fact that Professor Salaita was to teach Native American studies and the fact that Native Americans in many cases were expelled from their homes and killed on the notion that they were not civil enough to coexist with white communities, this is the history of the term “civility” and that is really where the concept emerges from. The university, recognizing early on that First Amendment law does not allow public actors—like a public university—to restrict speech or to retaliate by firing individuals on the basis of speech the tone of which they do not agree with, quickly tried to make this about Professor Salaita’s lack of fitness or qualification to teach, despite the fact that Professor Salaita not only has a long history of really meaningful scholarship, but also near perfect evaluations at Virginia Tech in many different categories, including his concern and respect for students.
TR: Omar goes on to discuss the other ways in which Zionist organizations silence critique of Israel on campus.
OS: We continue to see it used against Students for Justice in Palestine chapters as they organize divestment campaigns and host events. We have seen it used in other instances in which professors have spoken out or written articles, and it continues to be one of the favored tactics that is used to silence criticism of Israel. It is up there now with smear campaigns, and it is often linked to attacks of anti-Semitism or claims that campus communities are unsafe for Jewish students, which has been a tactic that is used by many pro-Israel organizations not only in their public advocacy, but even in some cases, when filing a complaint in front of government bodies like the Department of Education.
Part II—Using Title VI to Silence Critique of Israel
TR: In August 2013, the Department of Education’s Office for Civil Rights closed their investigation of Berkeley, Santa Cruz, and Irvine, dismissing allegations that student protests against Israel’s human rights violations created a hostile environment for Jewish students. Yaman explains the role of the Office for Civil Rights as well as the university’s responsibility under Title VI to prevent hostile environments on campus.
Yaman Salahi (YS): The Office for Civil Rights of the Department of Education is charged with enforcing various civil rights statutes against educational institutions that receive federal funding. One of those laws is Title VI of the Civil Rights Act, and what that law says is that schools that receive money from the federal government cannot discriminate against students on the basis of race, color, or national origin. And one form of discrimination is what is known as hostile environment discrimination, and that is one in which an act of harassment does not necessarily come from a university staff member or from an instructor, but rather has to do with the obligations a school has to mitigate student on student harassment. The way it works is that if harassment becomes so severe and pervasive as to undermine a student’s ability to obtain an equal education on the basis of their race, color, or national origin, the school then has a duty to mitigate that environment and ensure that students are able to access the educational resources that the school is providing.
TR: He discusses the first claim, which suggested that expressions of solidarity with Palestine created a hostile environment for Jewish students.
YS: About a decade ago the first claim was filed against UC Irvine, and the theory that the complainants tried to use—in that case it was the Zionist Organization of America—was that pro-Palestinian activism at UC Irvine, various different forms and various different incidences on campus, in and of itself creates a hostile environment for Jewish students on the basis of race, color, or national origin. And that investigation was initially dismissed.
TR: It was not until 2010 that the Office for Civil Rights reaffirmed a controversial policy that gave birth to a new wave of complaints, which were filed specifically to target the expression of solidarity with Palestine. The complaint against UC Berkeley was started by an alumna. Yaman discusses her claims against a mock checkpoint she witnessed on campus.
YS: She basically says that when she went and saw the mock checkpoint, she was so overwhelmed by the sight of people wearing military attire and pointing fake firearms at those who were passing by that she felt unsafe going to campus after that. And of course, the whole point of the mock checkpoint is to draw attention to real checkpoints, so you can only ask yourself: If the mock checkpoint is so bad, then what about the real thing? That lawsuit was dismissed by a federal judge who held that most of the allegations were well within the protections of the First Amendment. But right after the lawsuit was terminated in district court, the complainants went ahead and filed the same allegation with the US Department of Education, which opened up an investigation. I would say that this lawsuit and the subsequent complaint were a high point of anxiety.
TR: Yaman goes on to discuss the various categories that complaints could be filed under for the Office for Civil Rights’ (OCR) investigation using Irvine as an example.
YS: So one of the complaints against UC Irvine, for example, involved four categories of factual allegations. One of those categories involved direct confrontations between students, such as heated exchanges. The second category involved what I think are clearly anti-Semitic slurs. A third category involved organized student expressive activity, such as panel discussions and the like. The fourth category involved allegations of differential treatment by the university.
In the first category of claims that involve heated confrontations between students from different groups on campus, the OCR—after it investigated the allegations—concluded that those confrontations were “related to the different political views of the participants,” not related to national origin or race or anything like that. Under the second category, OCR investigated one allegation that somebody made an anti-Semitic slur against a visiting speaker. It investigated the incident and concluded that even though that statement did, in fact, happen, it was an isolated incident, so it was not “sufficiently serious as to deny or limit students’ abilities to participate and/or benefit from the university’s program.”
The third category, which goes more into the realm of First Amendment-protected expression, has to do with events that the Muslim Student Union at UC Irvine had organized. One allegation, for example, was that during their Israel Apartheid Week, the Muslim student group distributed flyers, which the complainant said attributed an “anti-Israel statement” falsely to Nelson Mandela. They claimed this disseminates false information that inflames hatred for Israel and Jews. OCR held that whether or not that actually happened and whether or not the claims were actually true or false, those kinds of flyering activities are clearly expression that are directed on matters of public concern direct to the university community, and so they are not a form of harassment.
I want to go into detail about one of the student confrontations, for example, to give you a little bit of what people are talking about in that context. So if you remember, I said one of the categories was one about confrontations between students, and so one of the allegations that OCR investigated at UC Irvine was a claim that the relationship between a Jewish student and a Muslim student who lived in the same dorm became “contentious” after the Muslim students protested a lecture by Daniel Pipes—an action that, according to the complaint, excited the Jewish student. OCR described the incident as follows: “The Jewish student stated that she had been friends with the Muslim students until she learned of their protest, at which point she stopped talking to them. The Muslim students responded by ceasing communication with her. The situation ultimately led to a confrontation between the students, during which she called them anti-Semitic, and they called her a racist. Consequently, she moved out of the dorm.”
The OCR’s conclusion was that these facts do not support a conclusion that this student was harassed because of her national origin, but rather it was related to differing political views, which overarching, I think is the right conclusion and probably the right characterization for most of what happens on campus. Even when you are not talking about just panel discussions or movie screenings, but rather you are talking about people who are attending the same event and arguing with one another or developing negative feelings about one another, it is really the politics that is driving it and not so much a person’s religious affiliation or ethnic background.
TR: We learn of Tammy Rossman-Benjamin’s first complaint at UC Santa Cruz, which was ultimately found to be meritless. You may remember Benjamin from her lecture, where she accused the Muslim Student Association and Students for Justice in Palestine (SJP) of having connections to what she labels “terrorist organizations.” Today, Benjamin is better known for founding the AMCHA Initiative, which attempts to blacklist scholars who express solidarity with Palestinians.
YS: One of these complaints was filed in June 2009 against UC Santa Cruz, and it was filed by a lecturer at UC Santa Cruz named Tammy Rossman-Benjamin, who later ended up being the founder of the AMCHA Initiative. What she claimed was that the university was creating a hostile environment for Jewish students because it co-sponsored events organized by students about Palestine. For example, one of these featured a screening of Occupation 101 and a panel discussion with independent journalist Nora Barrows-Friedman, a history professor, and a community activist. The complainant in that case wrote to the OCR that she had asked the college to withdraw sponsorship of that event many times because, in her words, it “was not going to educate students about the complicated situation in the Middle East, but rather was a platform for anti-Israel propaganda.”
So after she attended the event, some of the things that she said created a hostile environment were her claims that people said “Israel is guilty of ethnic cleansing” and “Israel’s actions against the Palestinians is form of colonialist aggression.” She said for the college to sponsor an event where people made such statements creates a hostile environment for students, and she complained about four similar panel discussions on campus all in the same vein. It took OCR quite a while to resolve that, but when it finally dismissed the complaint in August 2013, it held that those four panels either constituted or would have constituted expression on matters of public concern directed to the university that do not constitute actionable harassment.
TR: After walking us through a few excerpts of complaints filed under Title VI, Yaman deconstructs the flawed logic of the complainants’ tactics.
YS: The basic claim of the Title VI Civil Rights Act hostile environment claims is this idea that if students or faculty engage in speech or expression that criticizes Israel’s human rights record or criticizes the Israeli government’s behavior, that then creates a hostile environment for Jewish students on the basis of their Jewish identity. There are a number of reasons why that claim does not work. Part of that is because in order to accept it, you have to accept a series of flawed assumptions, and one of those assumptions is this idea that Jewish students monolithically hold only one opinion, a positive one, about Israel or its policies. That is something that is demonstrably false, as you can see by taking a close look at the dynamics on any campus, in terms of the diversity of opinion. But another reason that it is flawed is because even if you assume that Jewish students monolithically identify with or support Israel in the same way, it is another step to then say that identification means they are also intolerant of other perspectives. So the idea that because you have a certain set of views means that you cannot tolerate other certain sets of views is one that falls apart under scrutiny as well.
Then the next step: Even if some students are incapable of tolerating the presence of other views, the idea that, when they are exposed to those views, they then suffer from a civil rights injury is one that really leaves very little room for any kind of intellectual engagement on campus. It really turns the whole point of the university upside-down because it casts exposure to different ideas and different perspectives as a form of trauma rather than the very basis for education.
There are a number of other ways to attack this too, and one of those is that it means that you have to accept that when you are criticizing a government you are actually engaging in a form of attack on individual students who might identify with the government. If you applied that to any other government in the world, that would leave very little room for people to engage in any sort of critical expression, whether you are talking about Saudi Arabia or Iran or any other country in the world. If that political statement about a government or its policies or a state is treated as something synonymous with an attack on students who might be perceived to be identified with said certain state, you end up having no free speech on campus at all because you can take any government in the world any nation-state in the world and draw a line between that nation-state and some aspect of individual identity.
I think the most overwhelming one here, and this is one that becomes clear, is that there is a huge imbalance in the way we talk about these issues, and the question is almost always phrased as: “Does speech that criticizes Israel or its human rights record subject Jewish students to a hostile climate?” Yet, nobody asks about whether or not Palestinian, Arab, or Muslim students have any feelings at all about how things are discussed on campus. It might be for some students that there is some sort of negative feeling that is engendered when you see events on campus like Israeli Independence Day, or you see tables advertising Birthright trips when you cannot even go back to the country that your parents or grandparents came from just because of your identity. To the extent that you are going to take into consideration how students process the environment around them, the way that Brandeis Center and AMCHA present their claims, it makes it seem as if there are no experiences from Palestinian or Muslim students that hurt, that are negative, or are worth taking into consideration. So it is a totally imbalanced discussion that can result in a total omission of the Palestinian narrative and experience on campus and historically.
TR: Both Yaman and Nadia discuss the chilling effect legislation and litigation can have on free speech, which springs from an anxiety of losing federal funding. Nadia explains the Nakba Law and its implications for public universities in the forty-eight territories.
NBY: You are seeing this wave of discriminatory legislation. The Nakba Law allows the minister of finance to fine any public body benefitting from public funding—so for example schools, universities, local authorities—if they hold events that commemorate the independence day or the day of the establishment of the state in 1948 as a day of mourning. This is commemorating the Nakba, so it was in 2012 that Adalah and some of our partner organizations—the Association for Civil Rights in Israel (ACRI)—approached the Supreme Court [in Israel], and the Supreme Court decided to uphold that law, missing the opportunity to tell legislators that there are limits to this sort of anti-democratic, anti-human rights action that encourages discrimination against Palestinian citizens of Israel. And since then, we have seen the way it is implemented in universities, and we have seen that young people who are holding commemorations, even silent commemorations, are being targeted by their school, punished, or suspended.
TR: Yaman discusses a similar chilling effect, but in the US context.
YS: This would result in a chilling effect on campus, where the Department of Education was investigating these allegations, which on their face were not credible and were also based on political speech not harassment of any kind and not discrimination of any kind. Because of the punishment that the university might suffer from a violation of Title VI, including potential loss of federal funds but also the stigma associated with a violation, university administrators might overreact and err on the side—I am not even going to say on the side of caution—but rather err on the side of avoiding these complaints in the future, whether they are meritless or not, which would result in chilling of student activism, chilling of faculty speech, and so on.
The chilling effect is a really serious one, there was an event at UC Santa Cruz, for example, which was a subject of one of these investigations, where a provost actually said to the audience publicly that she and other administrators were really waiting to see how the Department of Education would resolve these complaints because they felt, just from an administrators perspective, that they lacked the guidance that they needed to be able to know what kinds of events they could sponsor on campus and what kind they should refrain from sponsoring on campus. It is kind of shocking to think that university administrators are afraid to host events on campus and are waiting for the federal government to tell them whether they can or cannot host them. So I think that is definitely the most serious aspect of these complaints and investigations.
TR: It is clear that despite the allegations being baseless, their effects were not to be taken lightly. For instance, federal civil rights investigators went as far as to attend Israeli Apartheid Week at UC Berkeley before concluding the investigation. Yaman conducted investigative research that ultimately revealed the Department of Education’s (DOE) role in the change of the interpretation of Title VI, specifically to contemplate religious claims against Muslims, Seikhs, and Jews. He discovered that the person who was responsible for the administrative guide created it during his time at the DOE only to leave the DOE to bring the Title VI challenge on behalf of Jewish students.
YS: In 2004 under the Bush Administration, OCR adopted a policy guidance which explained that from then on—although the language of the Title VI statute protects only against discrimination on the basis race, color, or national origin but not against religious discrimination—in certain circumstances the department would exercise jurisdiction over complaints that alleged harassment against members of religious groups. The person who was the assistant secretary for civil rights enforcement at the time was Kenneth Marcus. He was the author of that policy, and he has also published a number of law review articles about the issue and a number of articles that claim there is a connection between anti-Semitism and anti-Zionism. After that he became the staff director at the US Commission for Civil Rights, which is an independent government agency that convenes hearings on several different issues. But he organized a set of hearings and findings between 2005 and 2007 about an alleged rise in “campus anti-Semitism,” which was the terminology they were using at the time.
He wasn’t involved in the first complaint that I know of—the first complaint was the one filed by the Zionist Organization of America less than a month after he adopted the policy—but certainly in the past few years after he founded the Brandeis Center, he has been very involved in reaching out to universities and suggesting to them that if they fail to take action against pro-Palestinian expression on campus, that could lead Title VI liability.
TR: False allegations of anti-Semitism not only restrict freedom of speech and tarnish the reputations of those accused, but they also overshadow legitimate instances of anti-Semitism.
YS: In our review of the complaints that we have seen, for example, there are a number of complaints that have been filed by Jewish students who allege really bona fide anti-Semitism, like teachers or administrators making remarks about their religion, teachers or other students even bullying students on the basis of their background with anti-Jewish slurs and so on. There are number of those cases that you look at them and you are like, “Wow this is really an example of egregious racism and this discrimination needs to be addressed.” But often those people do not have legal assistance; they have filed those complaints on their own. And yet there is a bevy of organizations that are willing to pour in a tremendous amount of institutional support and resources for those complaints that are based on the Israeli-Palestinian conflict, so I do think that it overshadows [the issue] in that respect.
TR: We asked Yaman of the origins of Title VI, and if its current use is appropriate.
YS: These complaints are not really in line with what the spirit of Title VI of the Civil Rights Act is about. When that law was adopted, the main goal was to help fight against the artifacts of segregation and the Jim Crow era, to help desegregate schools, and to help students from historically marginalized groups in the United States get equal access to education. In this case, when you think about it, [Title VI] is being used against Palestinian students or students from other marginalized communities who are just trying to bring attention to their family’s experiences, their experience as a community, and their history. So in a way, it is using Title VI, which is meant to bring students from the margins into a situation where they can benefit equally from their educational opportunities, in a way that actually reaffirms their marginalization because it says you cannot come out here and talk about this issue without risking government investigation.
TR: While Yaman previously highlighted that false allegations of hostile environments threaten the rights of students who express pro-Palestinian sentiments, he goes on to explain that it is hardly the only tool pro-Israel advocates are using against free speech. Through the call of multicultural liberalism, Zionist organizations are able to target faculty by accusing Middle East area studies programs of bias in the classroom.
YS: This other set of claims about the Higher Education Act specifically targets federally funded area studies programs, and particularly those Middle East studies centers that receive grants under the Higher Education Act. And the claim here, although they do continue to allege that Middle East studies centers promote anti-Semitism or other forms of discrimination, is that Middle East studies centers are misusing federal funds because, they claim, the Higher Education Act requires Middle East studies centers to promote so-called “diverse perspectives,” and they are failing to live up to that because they allegedly only have a bias toward criticism of the Israeli government.
So what they are calling upon here is for amendments to the Higher Education Act during the next reauthorization cycle that would make that requirement more explicit and also lead to potential defunding of programs that fail to live up to what they say “balance” requires. And they are also calling for the DOE itself, rather than Congress to amend the act, to adopt new guidance that would create a complaint mechanism for people who think that a particular area studies program is failing to, in their words, “promote diverse perspectives.” So that is the issue here. This second tactic is more explicitly linked to teaching, to the content of classroom instruction, to faculty activities, rather than simply student activism.
TR: During a time where faculty are increasingly losing their autonomy to the university’s administration, pro-Israel advocates are now recommending that departments hand over their rights to develop curricula and put it in the hands of government officials. Yaman explains these recommendations in detail.
YS: It is worth noting that this whole idea of intellectual diversity and so on is something that actually has its roots in a movement that had a brief heyday in the mid 2000s. This was an attempt by conservative groups to have what they call an academic bill of rights passed in every state, which would have called for academic diversity, intellectual diversity and that kind of thing. But at the time, the AAUP—American Association of University Professors—came out strongly in opposition to those, not because they rejected the idea that intellectual diversity was valuable and so on, but rather because they were concerned that the way this diversity was being measured by the groups calling for it was, in a nutshell, anti-intellectual—going by simplistic political labels like how many liberals, how many conservatives do you have on the faculty without regard toward how they actually pursue their scholarship.
And the same problems are evident in what Brandeis and AMCHA are calling for when it comes to Middle East studies centers because they are looking at it through their extremely problematic definition of anti-Israel or pro-Israel, which is not how academic work is measured or analyzed. You do not just reduce it to a political label and then look for some artificial quota of people from this perspective, people from that perspective, and so on; it has to be judged on its merits.
So that is one of the problems with their recommendations, and then the idea that not only would they be proposing those ideals in this context, but that the people responsible for enforcing those ideals would be bureaucrats, government officials, rather than trained academics within the field. Traditionally, it is up to the academics in the field to apply their academic expertise in developing curricula, for example, and ensuring that students are exposed to a wide range of views that have merit in the academic community. But asking government officials to play that role, especially in this context, is opening the door toward politicization of university curricula and of university events.
TR: Yaman closes with his thoughts on the future of political speech on campuses in the United States and warns us of the possible implications restricting academic freedom may have for everyone at the university.
YS: While speech around the Middle East and around Israel and Palestine certainly is a flashpoint in terms of inviting many calls to censorship and many other forms of oppression, the implications for how those issues are addressed will extent to students engaged in all kinds of political protest and will extent to academics regardless of what the topic of their scholarship is. The kinds of things that have come under attack in this process are very traditional forms of political expression and protest. In a lot of these Title VI complaints, whether they are filed formally or simply the allegation is made, groups like AMCHA and the Brandeis Center are targeting things like student government resolutions, mock checkpoint-like activities—so guerilla theater kind of tactics, street theater—sit-ins, protests, academic formats like panel discussions, conferences, and film screenings; things that are really fundamental forms of expression that without them you would not really have a very interesting university life to speak of. So I think that it is very much a test issue because if the line is drawn here in a way that it becomes unacceptable or outside the scope of the guarantees of freedom of speech and academic freedom for people to engage in this kind of discussion about a very important foreign policy issue, it does not bode well for the future of academic life.
Part III—A Shift in Strategy: Invoking the Law to Achieve Justice
TR: Drawing on his experience as an organizer for the Students for Justice in Palestine movement and now as an attorney, Omar discusses the shift in the way Palestinians mobilize as their strategy moves from a nationalist to a rights-based framework that engages the international community more broadly.
OS: Looking at discourse around Palestine and about Palestinians was really initially a response that used nationalism as a form of organizing or political ideology. It was a post-colonial response that really grew in the fifties and sixties. It was captivated by strong leaders and the aura of pan-Arabism. It grew out of the initial demands of the Palestinian solidarity movement to reclaim all of historic Palestine. And originally, particularly before the 1967 War, it was part of a project to create a single Arab nation. I think even here in the United States, if you look at the early organizing around Palestine, it really was run by Palestinian student groups that were generally more nationalist in their thinking, and I think that also framed the political conversation. Folks will all remember that 1978 Foreign Affairs piece by Walid Khalidi “Thinking the Unthinkable: A Sovereign Palestinian State.” In many cases the idea of Palestinian statehood and the two-state project in its infancy grew out of a nationalist discourse, so one that was more about Palestinian nation-state nationalism as opposed to pan-Arab nationalism.
TR: He goes on to discuss the political elite’s co-option of the nationalist discourse to entrench the occupation. He explains that as a response to this co-option new generations of Palestinians have re-aligned themselves toward an allegiance to justice rather than statehood.
OS: If you look at the younger academics here in the United States that are working on these issues, you see a line of discussion that really looks much more at a humanist or a rights-based framework. For example, Saree Makdisi—who teaches at UCLA—in his book talks about being inculcated with nationalism of any kind at a young age and talks about being drawn to Palestine not because of patriotism or nationalism but really out of a sense of justice. And even Edward Said, if you look at his later writings, really predicted that such attitudes would emerge among the generations to come who, as he wrote, were less wedded than their elders to the notion of the old days, were able to look more unconventionally at the future, and think through alternative frameworks.
And when we look on the ground among Palestinians, we see that there is a high level of support for a language, for a discourse that is more rights-based. I think the hunger strike that we saw a couple of years ago, the prisoners movement on the ground, some of the activism that we have seen and demonstration over the last three years really speaks to a new type of language and organizing that looks at the international community more than the Arab world, which it traditionally did. It is a language that is universal and it is one that focuses on the inequalities on the ground. It really breaks out of the mould of the two equal sides—the Israelis and Palestinians—that ignores the power dynamic and presumes that this is an old and institutionalized problem of misunderstanding as opposed to a problem that at its core is about an oppressor and oppressed, a colonizer and a colonized, about structural inequality around issues like land, human rights, and resources.
TR: Through highlighting the structural inequalities facing Palestinians, whether they be in the West Bank, Gaza, the forty-eight territories or in exile, Omar argues that a human rights-based framework may be today’s most effective tactic for achieving justice in Palestine.
OS: With the West Bank or the Occupied Territories versus Israel, I think it is easiest to make the argument about structural inequalities, whether by comparing freedom of movement, right to vote, or living under occupation. By any sort of metric it is very clear that you live in a black and white apartheid structure, where Jewish settlers have fundamentally more significant rights. But I think you can use an apartheid framework also to discuss Palestinians living in the 1948 [borders] because what you see there, whether it comes down to allocation of state resources, education, marriage, equality of land rights, are fundamentally different rights on the basis of one’s nationality.
I think it is even a rhetoric to talk about refugees because, at the end of the day under the Law of Return, tomorrow a Jewish American can move to Israel and become a citizen on the spot whereas Palestinians who live in refugee camps in many cases miles away from their ancestral homes of hundreds of years cannot return to their homes because they have been denied their right of return. Again, the Law of Return versus right of return at its core is an issue about a structural inequality that is providing different rights on the basis of nationality.
So, I think the only way to discuss all of these different dimensions—if you are thinking about the structural disparities and about rights—at the end of the day, the way that the two-state solution and the rhetoric about nationalism and the propagation of Palestinian embassies across the world and representation at the UN, and this idea of the Palestinian Authority being a state, in fact, is really meant, I would argue, to limit full liberation because that narrative, especially the Oslo-type framework and the Oslo-type nationalism, explicitly does not have a place in it for Palestinians who do not live in the West Bank or Gaza, such as refugees or those that live in Haifa, or Yafa, or even near parts of Jerusalem.
So I think when we put a whole picture together, and when you really think about being effective and having a discourse that you can not only can build international solidarity around but also one that speaks to the aspirations of all different Palestinian communities, I think our humanist or rights-based framework as opposed to nationalist, religious, or other frameworks, is most effective. I would also add that it provides a vision for the future that not only fits all Palestinian communities but includes a place for Israelis, for those in the international community, and a vision that all can build around. So I think that makes it significant, and that also is what makes it a particularly scary thing to those who want to keep the occupation and the status quo alive.
TR: Shifting gears, Omar outlines how advocates of social justice can use the law to protect their rights to freedom of expression.
OS: I think the first thing for folks to understand is that the First Amendment here in the United States is really strong if you compare free expression in the United States with laws around free speech in Europe or other parts of the world. The United States has one of the strongest legal systems around the First Amendment. Among the important things that non-lawyers should know about the First Amendment is that speech cannot be limited based on hostility to a particular view point. What that means, if one really thinks about it, is that state resources and state policy must grant access and cannot impose restrictions on an unequal basis.
Doing so would be what constitutes viewpoint discrimination, and without getting into the nitty gritty of the law, it is worth understanding that if universities and local government enact policies that restrict the speech of a Palestine advocate, and it appears to be about the subject matter of the speech, that is something worth flagging. It is something that the state and state actors cannot do. The state cannot restrict speech based on tone, and it is very clear that the constitution—as interpreted by the Supreme Court over and over again—protects speech, even speech that is harsh or sharp in tone. The Supreme Court has said in a case that it protects speech particularly that is “vehement, caustic, and sometimes unpleasant,” and in another case, words that “demean and abuse either viewpoints themselves or those who express them.”
TR: Omar also cites that free speech is even more important in a university setting.
OS: First Amendment protections are even stronger on a university campus. The Supreme Court has said, “To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation.”
TR: He urges our listeners to use resources such as Palestine Legal, formerly known as Palestine Solidarity Legal Support, or the Center for Constitutional Rights to ensure that your rights are not being violated. He describes the violations that activists commonly accept.
OS: We as activists too often accept restrictions we do not need to accept. We are asked to provide security at our events, we are asked to host it in a different venue or location, we are asked sometimes not to invite a certain speaker, to change the title of our flyer, to do this or do that. And too often, because we feel that we are challenging a system, we often accept those sorts of restrictions. Even penalties in some cases have been levied on student groups, such as Students for Justice in Palestine, and even [on professors] in the extreme firing or denial of tenure, like in the case of Professor Salaita. But I think it is important to understand that in many cases, even those restrictions that may seem quite benign, actually violate the US Constitution, state constitutions, and local laws.
TR: After outlining how the law can protect the rights of activists, he explains how to embrace the language of international law to develop strong cases for divestment campaigns, academic boycotts, and debates. Omar gives detailed legal definitions and explanations of the terms apartheid, crimes against humanity, and genocide. He starts with apartheid.
OS: The term apartheid, which I think is increasingly the term that is being used by the movement, I personally find to be the most apt describer of the system of institutional and structural discrimination that Israel has imposed on Palestinians in all forms. There is a definition for the crime of apartheid, the word apartheid is not unique, there is the South African context, there is a convention called the International Convention on the Suppression and Punishment of the Crime of Apartheid, which was brought into force by the General Assembly of the United Nations in 1973. It has a definition for the crime of apartheid. It is a crime like murder is a crime, like rape is a crime. Then in 2002 when the Rome Statute came into operation—which established the International Criminal Court (ICC)—it also defined the crime of apartheid.
Now these definitions both contain certain key parts to their definitions. They both talk about institutionalized or systematic oppression and domination. Both definitions talk about oppression and both definitions talk about domination, and they both use this idea of institutionalized or systematic oppression or domination. And both definitions incorporate this idea of a regime that seeks to maintain itself. So it is not only systematically oppressing, but it is doing so to maintain a particular regime that is based on domination by one racial group over the other. It is a systematic oppression based on preferential, systematic treatment of one group over the other with an intention of maintaining that regime. I think knowing that definition, there are a lot of ways you can apply it as we have gotten through the Israeli Palestinian conflict. Refugees, the situation in the Occupied Territories, the situation in Israel, I think there are ways you can use that definition to make the argument for apartheid.
TR: Next he explains what constitutes a crime against humanity.
OS: Crimes against humanity also have a legal definition. They are more or less specific criminal acts that happen on a widespread or systematic basis as part of an attack on civilians. It is a set of abuses that takes places pursuant to a government policy. So it is acts—whether they are murder or killing or rape or another set of abuses—based on a state policy, and it is a very serious crime. I think non-lawyers sometimes do not understand that a crime against of humanity is on the same level—in terms of a type of violation—as torture or genocide. It is a term that provides widespread jurisdiction to courts and international actors to hold perpetrators to account. It is a term that activists may consider thinking about using as it pertains to particular policies in Israel.
TR: For the third term, genocide, Omar expands the definition beyond what many assume to be limited to large-scale massacres.
OS: Genocide is another term that is sometimes used, and I think it can be thrown around loosely. I think if someone wants to make a genocide argument in any conflict, they should know that the definition incorporates key things. It is not only killing on a large scale, which is how many understand it, but it is also killing that is calculated to bring about physical destruction in full or in part of an entire population. Again, it is actions with the intent to destroy a national, ethnic, racial, or religious group as such. So if you are going to make the claim of genocide in any conflict or in this conflict, I think it is important to know those elements and to make out a claim.
TR: And finally, he identifies what constitutes a war crime before concluding with advice on how to use the law to help drive Boycott, Divestment and Sanction (BDS) campaigns.
OS: War crimes more or less refer to violations of the Geneva Conventions, which are the rules that established how to wage armed conflict. We have talked about the ICC especially in light of the recent debates, and once again, it is important to understand that the ICC can only take on certain types of crime, what those crimes may be, and the process by which the ICC acts.
Taking a step back from these definitions, the larger point here is what I started with earlier: We as lawyers often think we have all of the answers to how to solve conflict, and we do not. It really is movements and activists that change the world, but sometimes legal tools can help in understanding the law even though the law has been established largely to protect states in the international arena and entrenched interests in the domestic arena. Sometimes the law and legal tools can provide a helpful set of reference points or guideposts that can help frame the conversation, and I would encourage those who want to talk about these sort of terms to make sure they do so in a way that is precise and tight. Because when we are working in opposition to entrenched power or very strong interests, it is incredibly important that we have all out i’s dotted and t’s crossed. As I learned from a mentor in law school, you are as strong as your weakest fact, and if there is some part of your argument that can easily be torn down—including the use of a legal term or an inaccurate invocation of international law—that is the quickest way to undermine a movement when the facts on the ground very clearly should make it easy to make the argument about a type of significant abuse we see in Israel/Palestine and really on a larger scale in the Arab world today.
Part IV—Delusive Agency in Israeli Courts & Anti-Boycott Legislation
TR: For the third and final portion of our segment, we focus on the struggle for freedom of speech taking place in the region. On 15 April [2015], the Israeli Supreme Court rejected most parts of a petition filed by human rights organizations and political movements against the Anti-Boycott Law, which was enacted in 2011. The law not only imposes sanctions on any individual or entity that calls for an economic, cultural, or academic boycott of Israel’s West Bank settlements or of Israel itself, but it also allows entities to sue and win compensation from individuals or organizations that have called for the boycott. Nadia examines the case and the court’s most recent decision.
NBY: Nonetheless this decision is pretty extraordinary in that the Supreme Court refrained from defending freedom of expression. The sole purpose of the law is to silence legitimate criticism of Israeli policies, and these are Israeli policies in the illegal settlements in the West Bank as well. So the fact that you are silencing the ability of both citizens of Israel—Palestinian citizens of Israel who call for boycott, Palestinians in East Jerusalem—and that the Supreme Court approved of this silencing and the restriction of legitimate protest is pretty extraordinary. It also brings us into a discourse that is happening in the United States too where these sort of legitimate forms of criticism are being criminalized, students, activists, and institutions are being silenced, and we are entering a pretty dangerous era.
TR: Nadia discusses the mass arrests that occurred in the summer of 2013 and the emergence of illegal Facebook arrests.
NBY: There were mass arrests inside Israel and in East Jerusalem—levels that we have not seen since the Second Intifada—and a third of those were minors. We were seeing something really interesting, which we named Facebook arrests. This would be students who called for protests on their Facebook pages who were then met at home by the Israeli security forces, the police, and held in house arrest because they had called for protests. These illegal arrests and the silencing of critique also show how threatening that is, how threatening truth is, how threatening calls for justice are. You are seeing legislation, and you are seeing police forces respond to that threat.
TR: On 2 April, one day before my interview with Nadia, the United Kingdom’s University of South Hampton cancelled an event entitled “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism.” We asked Nadia to share her thoughts on these attempts to silence critique of Israel.
NBY: It is because it works in the short term, and that is basically the game here. It is a short-term game, because I do believe that in the long term it is not sustainable. You cannot deny justice, you cannot allow this to continue, and I am speaking as a human rights lawyer and human rights lawyers are relentlessly optimistic, so we have to wake up believing that, but it is a short-term game. Yes, you can shut down the conference, but the road is long. The road is long, and you have so many actors who are willing to speak up and stand up against these policies. So you can shut down in the short term again, but I am convinced that in the long game these are just obstacles, and we will continue to fight for the ability for people to organize, mobilize, and create the social and political transformation that is necessary.
TR: As an attorney defending the rights of a population subjugated to an apartheid system, Nadia explains Adalah’s use of impact litigation and the importance of handing off these cases to organizers regardless of the verdict.
NBY: Adalah engages in what is called impact litigation. We are a human rights organization and legal center, so we are using the law in a bit of a different way. Impact litigation is about taking a story, one case, a person’s story that represents a larger policy, a larger issue. So you take one community or one individual, and you bring that person or that community’s case through the highest legal channels that you can to start to create conversation about policy in the highest corridors of power. The idea of impact litigation is a bit different, it is also called strategic litigation, and you take cases where if you win the case, you win, but if you lose the case, you also win because impact litigation comes with a recognition that the law and the system is not meant to preserve and protect your rights. You are working within this system, so you are using it to reveal the nature of the system, but also to create the conversation necessary that is outside and bigger than the law, where the law is just a component of a larger movement.
For example with these three cases that we lost this week, the question in human rights lawyering is: How do you take a legal loss and turn it into an advocacy win? How can you mobilize around these loses? So we are thinking now, and we have had meetings with communities and different community groups in 4DH or elsewhere (52:30), to start thinking about how we can use this. How do we respond to a pretty profound loss? What does that mean and how does that change our strategy as human rights advocates? That is the work of impact litigation. It is also repositioning the law as one tool in a larger movement, and I think the partnerships we have with other civil society, with young people, with student groups who know their rights and also know how to use the law to their advantage, whether you win or whether you lose. We are in the business of impact litigation. The reality is that the law is failing in large part to protect those rights, so it is very much about the latter: How you turn the loss into some sort of gain? And that is giving the case over to communities, to organizers.
TR: We asked Nadia how the international community could assist Adalah in spreading the counter-narratives that emerge through their impact litigation. She advises organizers to link struggles globally in productive ways that builds genuine solidarity among marginalized communities.
NBY: Adalah recently, last year, decided to look into what it would mean to have a strategic institutional presence in the United States, so that is my role now as the US representative. It is about bringing these stories here. Not only bringing these stories here, but bringing the lessons of that struggle here. What are the lessons that we learn in the work that we have been doing? How does that inform and contribute to this growing movement in the United States? Whether it is about Israel/Palestine, or maybe even more interestingly, about the way that the communities [in the United States] are organizing around police violence and against the killing of minority and marginalized communities: What is social control? How do you challenge mechanisms of social control that are in many ways killing communities—in this country particularly, black and brown communities?
In Israel you are seeing similar tactics and you are seeing certainly lessons learned, so part of that work is to bring these lessons and share what we have learned in the last twenty years of this legal struggle and seeing what we can do more globally, in a transnational way, to start addressing similar systems of oppression in this country and certainly in Israel. That is part of our work. So some of it is linking those struggles in productive ways, and I think that is a way that the international community can engage anew into this issue. We are really focused on elevating the language of equality and justice into the discourse on Israel Palestine, so reclaiming this as an issue of social justice is a way that the international community can break away from a broken political paradigm that is divorced from the reality on the ground and is detrimental to the protection of human rights.
It is reframing the discourse in the country and in the international community. Particularly it is young people, people of color, marginalized communities here in this country who are saying we get this, we saw that, we understand it, and we resist it anywhere that it happens. I think that sort of struggle is what is going to destabilize a system that needs to be transformed, not just reformed, and I think the work that we do together is the work that will achieve that end.
TR: Thank you to our wonderful guests—Nadia Ben Youssef, Omar Shakir, Yaman Salahi—for an insightful look into the legalities of the struggle for academic freedom. Please be sure to listen to their individual interviews for a more detailed look into these topics. As always, I hope you will head our call for your submissions on issues concerning repression on campus and academic freedom. This is Tareq Radi hosting StatusHour segment on reclaiming academic freedom.
Part I—Introduction
Tareq Radi (TR): This is Tareq Radi hosting “Reclaiming Academic Freedom” on StatusHour, where we expose violations of academic freedom and repression on campuses—both in the region and the United States. For our second segment, we approach the issue of academic freedom from a legal perspective. Joining the segment are three lawyers: Yaman Salahi, Omar Shakir, and Nadia Ben Youssef.
Yaman Salahi—a staff attorney with the Asian Americans Advancing Justice Asian Law Caucus—carefully unpacks the controversial Title VI cases that were directed at campuses in the University of California (UC) system. His in-depth interview includes excerpts from the complaints the Department of Education investigated. He also shares his own investigative research, which revealed the various players behind the campaigns to silence critique of Israel on campus.
Omar Shakir is a Bertha Fellow at the Center for Constitutional Rights and Professor Steven Salaita’s representative in his civil suit against the University of Illinois Urbana-Champaign (UIUC). In Omar’s full interview, he discusses Professor Salaita’s case in layman’s terms before drawing parallels between the tactics waged against Professor Salaita and the tactics being deployed against students today. Omar also gives advice on how activists can use the law both to protect their rights and to promote social justice. Both Omar and Yaman are former members of Students for Justice in Palestine turned attorneys.
Finally, joining the program we have Nadia Ben Youssef, a human rights lawyer and the US representative for Adalah—the Center for Arab Minority Rights in Israel. Nadia discusses the difficulties of seeking justice within colonial courts as well as the specific laws that violate academic freedom and free speech.
If you somehow have not heard of Professor Salaita’s case, he signed a contract to be an associate professor in UIUC’s American Indian Studies program and was notified only two weeks before he was due to begin teaching that the university would not complete his appointment.
Omar Shakir (OS): Now the university from the very beginning acknowledged that it was acting on the basis of free speech. The university—in statements it released in the weeks after his termination—noted that his speech was uncivil, and the president of the university actually said, to quote President [Roger] Easter, “Polarization, bigotry, and hurtful dialogue inhibits reasoned discourse. Professor Salaita’s approach indicates he would be incapable of fostering a classroom environment where conflicting views would be given equal consideration.” So for the university, they chose from the very early stages to make this about the notion of civility.
Now the irony of the fact that Professor Salaita was to teach Native American studies and the fact that Native Americans in many cases were expelled from their homes and killed on the notion that they were not civil enough to coexist with white communities, this is the history of the term “civility” and that is really where the concept emerges from. The university, recognizing early on that First Amendment law does not allow public actors—like a public university—to restrict speech or to retaliate by firing individuals on the basis of speech the tone of which they do not agree with, quickly tried to make this about Professor Salaita’s lack of fitness or qualification to teach, despite the fact that Professor Salaita not only has a long history of really meaningful scholarship, but also near perfect evaluations at Virginia Tech in many different categories, including his concern and respect for students.
TR: Omar goes on to discuss the other ways in which Zionist organizations silence critique of Israel on campus.
OS: We continue to see it used against Students for Justice in Palestine chapters as they organize divestment campaigns and host events. We have seen it used in other instances in which professors have spoken out or written articles, and it continues to be one of the favored tactics that is used to silence criticism of Israel. It is up there now with smear campaigns, and it is often linked to attacks of anti-Semitism or claims that campus communities are unsafe for Jewish students, which has been a tactic that is used by many pro-Israel organizations not only in their public advocacy, but even in some cases, when filing a complaint in front of government bodies like the Department of Education.
Part II—Using Title VI to Silence Critique of Israel
TR: In August 2013, the Department of Education’s Office for Civil Rights closed their investigation of Berkeley, Santa Cruz, and Irvine, dismissing allegations that student protests against Israel’s human rights violations created a hostile environment for Jewish students. Yaman explains the role of the Office for Civil Rights as well as the university’s responsibility under Title VI to prevent hostile environments on campus.
Yaman Salahi (YS): The Office for Civil Rights of the Department of Education is charged with enforcing various civil rights statutes against educational institutions that receive federal funding. One of those laws is Title VI of the Civil Rights Act, and what that law says is that schools that receive money from the federal government cannot discriminate against students on the basis of race, color, or national origin. And one form of discrimination is what is known as hostile environment discrimination, and that is one in which an act of harassment does not necessarily come from a university staff member or from an instructor, but rather has to do with the obligations a school has to mitigate student on student harassment. The way it works is that if harassment becomes so severe and pervasive as to undermine a student’s ability to obtain an equal education on the basis of their race, color, or national origin, the school then has a duty to mitigate that environment and ensure that students are able to access the educational resources that the school is providing.
TR: He discusses the first claim, which suggested that expressions of solidarity with Palestine created a hostile environment for Jewish students.
YS: About a decade ago the first claim was filed against UC Irvine, and the theory that the complainants tried to use—in that case it was the Zionist Organization of America—was that pro-Palestinian activism at UC Irvine, various different forms and various different incidences on campus, in and of itself creates a hostile environment for Jewish students on the basis of race, color, or national origin. And that investigation was initially dismissed.
TR: It was not until 2010 that the Office for Civil Rights reaffirmed a controversial policy that gave birth to a new wave of complaints, which were filed specifically to target the expression of solidarity with Palestine. The complaint against UC Berkeley was started by an alumna. Yaman discusses her claims against a mock checkpoint she witnessed on campus.
YS: She basically says that when she went and saw the mock checkpoint, she was so overwhelmed by the sight of people wearing military attire and pointing fake firearms at those who were passing by that she felt unsafe going to campus after that. And of course, the whole point of the mock checkpoint is to draw attention to real checkpoints, so you can only ask yourself: If the mock checkpoint is so bad, then what about the real thing? That lawsuit was dismissed by a federal judge who held that most of the allegations were well within the protections of the First Amendment. But right after the lawsuit was terminated in district court, the complainants went ahead and filed the same allegation with the US Department of Education, which opened up an investigation. I would say that this lawsuit and the subsequent complaint were a high point of anxiety.
TR: Yaman goes on to discuss the various categories that complaints could be filed under for the Office for Civil Rights’ (OCR) investigation using Irvine as an example.
YS: So one of the complaints against UC Irvine, for example, involved four categories of factual allegations. One of those categories involved direct confrontations between students, such as heated exchanges. The second category involved what I think are clearly anti-Semitic slurs. A third category involved organized student expressive activity, such as panel discussions and the like. The fourth category involved allegations of differential treatment by the university.
In the first category of claims that involve heated confrontations between students from different groups on campus, the OCR—after it investigated the allegations—concluded that those confrontations were “related to the different political views of the participants,” not related to national origin or race or anything like that. Under the second category, OCR investigated one allegation that somebody made an anti-Semitic slur against a visiting speaker. It investigated the incident and concluded that even though that statement did, in fact, happen, it was an isolated incident, so it was not “sufficiently serious as to deny or limit students’ abilities to participate and/or benefit from the university’s program.”
The third category, which goes more into the realm of First Amendment-protected expression, has to do with events that the Muslim Student Union at UC Irvine had organized. One allegation, for example, was that during their Israel Apartheid Week, the Muslim student group distributed flyers, which the complainant said attributed an “anti-Israel statement” falsely to Nelson Mandela. They claimed this disseminates false information that inflames hatred for Israel and Jews. OCR held that whether or not that actually happened and whether or not the claims were actually true or false, those kinds of flyering activities are clearly expression that are directed on matters of public concern direct to the university community, and so they are not a form of harassment.
I want to go into detail about one of the student confrontations, for example, to give you a little bit of what people are talking about in that context. So if you remember, I said one of the categories was one about confrontations between students, and so one of the allegations that OCR investigated at UC Irvine was a claim that the relationship between a Jewish student and a Muslim student who lived in the same dorm became “contentious” after the Muslim students protested a lecture by Daniel Pipes—an action that, according to the complaint, excited the Jewish student. OCR described the incident as follows: “The Jewish student stated that she had been friends with the Muslim students until she learned of their protest, at which point she stopped talking to them. The Muslim students responded by ceasing communication with her. The situation ultimately led to a confrontation between the students, during which she called them anti-Semitic, and they called her a racist. Consequently, she moved out of the dorm.”
The OCR’s conclusion was that these facts do not support a conclusion that this student was harassed because of her national origin, but rather it was related to differing political views, which overarching, I think is the right conclusion and probably the right characterization for most of what happens on campus. Even when you are not talking about just panel discussions or movie screenings, but rather you are talking about people who are attending the same event and arguing with one another or developing negative feelings about one another, it is really the politics that is driving it and not so much a person’s religious affiliation or ethnic background.
TR: We learn of Tammy Rossman-Benjamin’s first complaint at UC Santa Cruz, which was ultimately found to be meritless. You may remember Benjamin from her lecture, where she accused the Muslim Student Association and Students for Justice in Palestine (SJP) of having connections to what she labels “terrorist organizations.” Today, Benjamin is better known for founding the AMCHA Initiative, which attempts to blacklist scholars who express solidarity with Palestinians.
YS: One of these complaints was filed in June 2009 against UC Santa Cruz, and it was filed by a lecturer at UC Santa Cruz named Tammy Rossman-Benjamin, who later ended up being the founder of the AMCHA Initiative. What she claimed was that the university was creating a hostile environment for Jewish students because it co-sponsored events organized by students about Palestine. For example, one of these featured a screening of Occupation 101 and a panel discussion with independent journalist Nora Barrows-Friedman, a history professor, and a community activist. The complainant in that case wrote to the OCR that she had asked the college to withdraw sponsorship of that event many times because, in her words, it “was not going to educate students about the complicated situation in the Middle East, but rather was a platform for anti-Israel propaganda.”
So after she attended the event, some of the things that she said created a hostile environment were her claims that people said “Israel is guilty of ethnic cleansing” and “Israel’s actions against the Palestinians is form of colonialist aggression.” She said for the college to sponsor an event where people made such statements creates a hostile environment for students, and she complained about four similar panel discussions on campus all in the same vein. It took OCR quite a while to resolve that, but when it finally dismissed the complaint in August 2013, it held that those four panels either constituted or would have constituted expression on matters of public concern directed to the university that do not constitute actionable harassment.
TR: After walking us through a few excerpts of complaints filed under Title VI, Yaman deconstructs the flawed logic of the complainants’ tactics.
YS: The basic claim of the Title VI Civil Rights Act hostile environment claims is this idea that if students or faculty engage in speech or expression that criticizes Israel’s human rights record or criticizes the Israeli government’s behavior, that then creates a hostile environment for Jewish students on the basis of their Jewish identity. There are a number of reasons why that claim does not work. Part of that is because in order to accept it, you have to accept a series of flawed assumptions, and one of those assumptions is this idea that Jewish students monolithically hold only one opinion, a positive one, about Israel or its policies. That is something that is demonstrably false, as you can see by taking a close look at the dynamics on any campus, in terms of the diversity of opinion. But another reason that it is flawed is because even if you assume that Jewish students monolithically identify with or support Israel in the same way, it is another step to then say that identification means they are also intolerant of other perspectives. So the idea that because you have a certain set of views means that you cannot tolerate other certain sets of views is one that falls apart under scrutiny as well.
Then the next step: Even if some students are incapable of tolerating the presence of other views, the idea that, when they are exposed to those views, they then suffer from a civil rights injury is one that really leaves very little room for any kind of intellectual engagement on campus. It really turns the whole point of the university upside-down because it casts exposure to different ideas and different perspectives as a form of trauma rather than the very basis for education.
There are a number of other ways to attack this too, and one of those is that it means that you have to accept that when you are criticizing a government you are actually engaging in a form of attack on individual students who might identify with the government. If you applied that to any other government in the world, that would leave very little room for people to engage in any sort of critical expression, whether you are talking about Saudi Arabia or Iran or any other country in the world. If that political statement about a government or its policies or a state is treated as something synonymous with an attack on students who might be perceived to be identified with said certain state, you end up having no free speech on campus at all because you can take any government in the world any nation-state in the world and draw a line between that nation-state and some aspect of individual identity.
I think the most overwhelming one here, and this is one that becomes clear, is that there is a huge imbalance in the way we talk about these issues, and the question is almost always phrased as: “Does speech that criticizes Israel or its human rights record subject Jewish students to a hostile climate?” Yet, nobody asks about whether or not Palestinian, Arab, or Muslim students have any feelings at all about how things are discussed on campus. It might be for some students that there is some sort of negative feeling that is engendered when you see events on campus like Israeli Independence Day, or you see tables advertising Birthright trips when you cannot even go back to the country that your parents or grandparents came from just because of your identity. To the extent that you are going to take into consideration how students process the environment around them, the way that Brandeis Center and AMCHA present their claims, it makes it seem as if there are no experiences from Palestinian or Muslim students that hurt, that are negative, or are worth taking into consideration. So it is a totally imbalanced discussion that can result in a total omission of the Palestinian narrative and experience on campus and historically.
TR: Both Yaman and Nadia discuss the chilling effect legislation and litigation can have on free speech, which springs from an anxiety of losing federal funding. Nadia explains the Nakba Law and its implications for public universities in the forty-eight territories.
NBY: You are seeing this wave of discriminatory legislation. The Nakba Law allows the minister of finance to fine any public body benefitting from public funding—so for example schools, universities, local authorities—if they hold events that commemorate the independence day or the day of the establishment of the state in 1948 as a day of mourning. This is commemorating the Nakba, so it was in 2012 that Adalah and some of our partner organizations—the Association for Civil Rights in Israel (ACRI)—approached the Supreme Court [in Israel], and the Supreme Court decided to uphold that law, missing the opportunity to tell legislators that there are limits to this sort of anti-democratic, anti-human rights action that encourages discrimination against Palestinian citizens of Israel. And since then, we have seen the way it is implemented in universities, and we have seen that young people who are holding commemorations, even silent commemorations, are being targeted by their school, punished, or suspended.
TR: Yaman discusses a similar chilling effect, but in the US context.
YS: This would result in a chilling effect on campus, where the Department of Education was investigating these allegations, which on their face were not credible and were also based on political speech not harassment of any kind and not discrimination of any kind. Because of the punishment that the university might suffer from a violation of Title VI, including potential loss of federal funds but also the stigma associated with a violation, university administrators might overreact and err on the side—I am not even going to say on the side of caution—but rather err on the side of avoiding these complaints in the future, whether they are meritless or not, which would result in chilling of student activism, chilling of faculty speech, and so on.
The chilling effect is a really serious one, there was an event at UC Santa Cruz, for example, which was a subject of one of these investigations, where a provost actually said to the audience publicly that she and other administrators were really waiting to see how the Department of Education would resolve these complaints because they felt, just from an administrators perspective, that they lacked the guidance that they needed to be able to know what kinds of events they could sponsor on campus and what kind they should refrain from sponsoring on campus. It is kind of shocking to think that university administrators are afraid to host events on campus and are waiting for the federal government to tell them whether they can or cannot host them. So I think that is definitely the most serious aspect of these complaints and investigations.
TR: It is clear that despite the allegations being baseless, their effects were not to be taken lightly. For instance, federal civil rights investigators went as far as to attend Israeli Apartheid Week at UC Berkeley before concluding the investigation. Yaman conducted investigative research that ultimately revealed the Department of Education’s (DOE) role in the change of the interpretation of Title VI, specifically to contemplate religious claims against Muslims, Seikhs, and Jews. He discovered that the person who was responsible for the administrative guide created it during his time at the DOE only to leave the DOE to bring the Title VI challenge on behalf of Jewish students.
YS: In 2004 under the Bush Administration, OCR adopted a policy guidance which explained that from then on—although the language of the Title VI statute protects only against discrimination on the basis race, color, or national origin but not against religious discrimination—in certain circumstances the department would exercise jurisdiction over complaints that alleged harassment against members of religious groups. The person who was the assistant secretary for civil rights enforcement at the time was Kenneth Marcus. He was the author of that policy, and he has also published a number of law review articles about the issue and a number of articles that claim there is a connection between anti-Semitism and anti-Zionism. After that he became the staff director at the US Commission for Civil Rights, which is an independent government agency that convenes hearings on several different issues. But he organized a set of hearings and findings between 2005 and 2007 about an alleged rise in “campus anti-Semitism,” which was the terminology they were using at the time.
He wasn’t involved in the first complaint that I know of—the first complaint was the one filed by the Zionist Organization of America less than a month after he adopted the policy—but certainly in the past few years after he founded the Brandeis Center, he has been very involved in reaching out to universities and suggesting to them that if they fail to take action against pro-Palestinian expression on campus, that could lead Title VI liability.
TR: False allegations of anti-Semitism not only restrict freedom of speech and tarnish the reputations of those accused, but they also overshadow legitimate instances of anti-Semitism.
YS: In our review of the complaints that we have seen, for example, there are a number of complaints that have been filed by Jewish students who allege really bona fide anti-Semitism, like teachers or administrators making remarks about their religion, teachers or other students even bullying students on the basis of their background with anti-Jewish slurs and so on. There are number of those cases that you look at them and you are like, “Wow this is really an example of egregious racism and this discrimination needs to be addressed.” But often those people do not have legal assistance; they have filed those complaints on their own. And yet there is a bevy of organizations that are willing to pour in a tremendous amount of institutional support and resources for those complaints that are based on the Israeli-Palestinian conflict, so I do think that it overshadows [the issue] in that respect.
TR: We asked Yaman of the origins of Title VI, and if its current use is appropriate.
YS: These complaints are not really in line with what the spirit of Title VI of the Civil Rights Act is about. When that law was adopted, the main goal was to help fight against the artifacts of segregation and the Jim Crow era, to help desegregate schools, and to help students from historically marginalized groups in the United States get equal access to education. In this case, when you think about it, [Title VI] is being used against Palestinian students or students from other marginalized communities who are just trying to bring attention to their family’s experiences, their experience as a community, and their history. So in a way, it is using Title VI, which is meant to bring students from the margins into a situation where they can benefit equally from their educational opportunities, in a way that actually reaffirms their marginalization because it says you cannot come out here and talk about this issue without risking government investigation.
TR: While Yaman previously highlighted that false allegations of hostile environments threaten the rights of students who express pro-Palestinian sentiments, he goes on to explain that it is hardly the only tool pro-Israel advocates are using against free speech. Through the call of multicultural liberalism, Zionist organizations are able to target faculty by accusing Middle East area studies programs of bias in the classroom.
YS: This other set of claims about the Higher Education Act specifically targets federally funded area studies programs, and particularly those Middle East studies centers that receive grants under the Higher Education Act. And the claim here, although they do continue to allege that Middle East studies centers promote anti-Semitism or other forms of discrimination, is that Middle East studies centers are misusing federal funds because, they claim, the Higher Education Act requires Middle East studies centers to promote so-called “diverse perspectives,” and they are failing to live up to that because they allegedly only have a bias toward criticism of the Israeli government.
So what they are calling upon here is for amendments to the Higher Education Act during the next reauthorization cycle that would make that requirement more explicit and also lead to potential defunding of programs that fail to live up to what they say “balance” requires. And they are also calling for the DOE itself, rather than Congress to amend the act, to adopt new guidance that would create a complaint mechanism for people who think that a particular area studies program is failing to, in their words, “promote diverse perspectives.” So that is the issue here. This second tactic is more explicitly linked to teaching, to the content of classroom instruction, to faculty activities, rather than simply student activism.
TR: During a time where faculty are increasingly losing their autonomy to the university’s administration, pro-Israel advocates are now recommending that departments hand over their rights to develop curricula and put it in the hands of government officials. Yaman explains these recommendations in detail.
YS: It is worth noting that this whole idea of intellectual diversity and so on is something that actually has its roots in a movement that had a brief heyday in the mid 2000s. This was an attempt by conservative groups to have what they call an academic bill of rights passed in every state, which would have called for academic diversity, intellectual diversity and that kind of thing. But at the time, the AAUP—American Association of University Professors—came out strongly in opposition to those, not because they rejected the idea that intellectual diversity was valuable and so on, but rather because they were concerned that the way this diversity was being measured by the groups calling for it was, in a nutshell, anti-intellectual—going by simplistic political labels like how many liberals, how many conservatives do you have on the faculty without regard toward how they actually pursue their scholarship.
And the same problems are evident in what Brandeis and AMCHA are calling for when it comes to Middle East studies centers because they are looking at it through their extremely problematic definition of anti-Israel or pro-Israel, which is not how academic work is measured or analyzed. You do not just reduce it to a political label and then look for some artificial quota of people from this perspective, people from that perspective, and so on; it has to be judged on its merits.
So that is one of the problems with their recommendations, and then the idea that not only would they be proposing those ideals in this context, but that the people responsible for enforcing those ideals would be bureaucrats, government officials, rather than trained academics within the field. Traditionally, it is up to the academics in the field to apply their academic expertise in developing curricula, for example, and ensuring that students are exposed to a wide range of views that have merit in the academic community. But asking government officials to play that role, especially in this context, is opening the door toward politicization of university curricula and of university events.
TR: Yaman closes with his thoughts on the future of political speech on campuses in the United States and warns us of the possible implications restricting academic freedom may have for everyone at the university.
YS: While speech around the Middle East and around Israel and Palestine certainly is a flashpoint in terms of inviting many calls to censorship and many other forms of oppression, the implications for how those issues are addressed will extent to students engaged in all kinds of political protest and will extent to academics regardless of what the topic of their scholarship is. The kinds of things that have come under attack in this process are very traditional forms of political expression and protest. In a lot of these Title VI complaints, whether they are filed formally or simply the allegation is made, groups like AMCHA and the Brandeis Center are targeting things like student government resolutions, mock checkpoint-like activities—so guerilla theater kind of tactics, street theater—sit-ins, protests, academic formats like panel discussions, conferences, and film screenings; things that are really fundamental forms of expression that without them you would not really have a very interesting university life to speak of. So I think that it is very much a test issue because if the line is drawn here in a way that it becomes unacceptable or outside the scope of the guarantees of freedom of speech and academic freedom for people to engage in this kind of discussion about a very important foreign policy issue, it does not bode well for the future of academic life.
Part III—A Shift in Strategy: Invoking the Law to Achieve Justice
TR: Drawing on his experience as an organizer for the Students for Justice in Palestine movement and now as an attorney, Omar discusses the shift in the way Palestinians mobilize as their strategy moves from a nationalist to a rights-based framework that engages the international community more broadly.
OS: Looking at discourse around Palestine and about Palestinians was really initially a response that used nationalism as a form of organizing or political ideology. It was a post-colonial response that really grew in the fifties and sixties. It was captivated by strong leaders and the aura of pan-Arabism. It grew out of the initial demands of the Palestinian solidarity movement to reclaim all of historic Palestine. And originally, particularly before the 1967 War, it was part of a project to create a single Arab nation. I think even here in the United States, if you look at the early organizing around Palestine, it really was run by Palestinian student groups that were generally more nationalist in their thinking, and I think that also framed the political conversation. Folks will all remember that 1978 Foreign Affairs piece by Walid Khalidi “Thinking the Unthinkable: A Sovereign Palestinian State.” In many cases the idea of Palestinian statehood and the two-state project in its infancy grew out of a nationalist discourse, so one that was more about Palestinian nation-state nationalism as opposed to pan-Arab nationalism.
TR: He goes on to discuss the political elite’s co-option of the nationalist discourse to entrench the occupation. He explains that as a response to this co-option new generations of Palestinians have re-aligned themselves toward an allegiance to justice rather than statehood.
OS: If you look at the younger academics here in the United States that are working on these issues, you see a line of discussion that really looks much more at a humanist or a rights-based framework. For example, Saree Makdisi—who teaches at UCLA—in his book talks about being inculcated with nationalism of any kind at a young age and talks about being drawn to Palestine not because of patriotism or nationalism but really out of a sense of justice. And even Edward Said, if you look at his later writings, really predicted that such attitudes would emerge among the generations to come who, as he wrote, were less wedded than their elders to the notion of the old days, were able to look more unconventionally at the future, and think through alternative frameworks.
And when we look on the ground among Palestinians, we see that there is a high level of support for a language, for a discourse that is more rights-based. I think the hunger strike that we saw a couple of years ago, the prisoners movement on the ground, some of the activism that we have seen and demonstration over the last three years really speaks to a new type of language and organizing that looks at the international community more than the Arab world, which it traditionally did. It is a language that is universal and it is one that focuses on the inequalities on the ground. It really breaks out of the mould of the two equal sides—the Israelis and Palestinians—that ignores the power dynamic and presumes that this is an old and institutionalized problem of misunderstanding as opposed to a problem that at its core is about an oppressor and oppressed, a colonizer and a colonized, about structural inequality around issues like land, human rights, and resources.
TR: Through highlighting the structural inequalities facing Palestinians, whether they be in the West Bank, Gaza, the forty-eight territories or in exile, Omar argues that a human rights-based framework may be today’s most effective tactic for achieving justice in Palestine.
OS: With the West Bank or the Occupied Territories versus Israel, I think it is easiest to make the argument about structural inequalities, whether by comparing freedom of movement, right to vote, or living under occupation. By any sort of metric it is very clear that you live in a black and white apartheid structure, where Jewish settlers have fundamentally more significant rights. But I think you can use an apartheid framework also to discuss Palestinians living in the 1948 [borders] because what you see there, whether it comes down to allocation of state resources, education, marriage, equality of land rights, are fundamentally different rights on the basis of one’s nationality.
I think it is even a rhetoric to talk about refugees because, at the end of the day under the Law of Return, tomorrow a Jewish American can move to Israel and become a citizen on the spot whereas Palestinians who live in refugee camps in many cases miles away from their ancestral homes of hundreds of years cannot return to their homes because they have been denied their right of return. Again, the Law of Return versus right of return at its core is an issue about a structural inequality that is providing different rights on the basis of nationality.
So, I think the only way to discuss all of these different dimensions—if you are thinking about the structural disparities and about rights—at the end of the day, the way that the two-state solution and the rhetoric about nationalism and the propagation of Palestinian embassies across the world and representation at the UN, and this idea of the Palestinian Authority being a state, in fact, is really meant, I would argue, to limit full liberation because that narrative, especially the Oslo-type framework and the Oslo-type nationalism, explicitly does not have a place in it for Palestinians who do not live in the West Bank or Gaza, such as refugees or those that live in Haifa, or Yafa, or even near parts of Jerusalem.
So I think when we put a whole picture together, and when you really think about being effective and having a discourse that you can not only can build international solidarity around but also one that speaks to the aspirations of all different Palestinian communities, I think our humanist or rights-based framework as opposed to nationalist, religious, or other frameworks, is most effective. I would also add that it provides a vision for the future that not only fits all Palestinian communities but includes a place for Israelis, for those in the international community, and a vision that all can build around. So I think that makes it significant, and that also is what makes it a particularly scary thing to those who want to keep the occupation and the status quo alive.
TR: Shifting gears, Omar outlines how advocates of social justice can use the law to protect their rights to freedom of expression.
OS: I think the first thing for folks to understand is that the First Amendment here in the United States is really strong if you compare free expression in the United States with laws around free speech in Europe or other parts of the world. The United States has one of the strongest legal systems around the First Amendment. Among the important things that non-lawyers should know about the First Amendment is that speech cannot be limited based on hostility to a particular view point. What that means, if one really thinks about it, is that state resources and state policy must grant access and cannot impose restrictions on an unequal basis.
Doing so would be what constitutes viewpoint discrimination, and without getting into the nitty gritty of the law, it is worth understanding that if universities and local government enact policies that restrict the speech of a Palestine advocate, and it appears to be about the subject matter of the speech, that is something worth flagging. It is something that the state and state actors cannot do. The state cannot restrict speech based on tone, and it is very clear that the constitution—as interpreted by the Supreme Court over and over again—protects speech, even speech that is harsh or sharp in tone. The Supreme Court has said in a case that it protects speech particularly that is “vehement, caustic, and sometimes unpleasant,” and in another case, words that “demean and abuse either viewpoints themselves or those who express them.”
TR: Omar also cites that free speech is even more important in a university setting.
OS: First Amendment protections are even stronger on a university campus. The Supreme Court has said, “To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation.”
TR: He urges our listeners to use resources such as Palestine Legal, formerly known as Palestine Solidarity Legal Support, or the Center for Constitutional Rights to ensure that your rights are not being violated. He describes the violations that activists commonly accept.
OS: We as activists too often accept restrictions we do not need to accept. We are asked to provide security at our events, we are asked to host it in a different venue or location, we are asked sometimes not to invite a certain speaker, to change the title of our flyer, to do this or do that. And too often, because we feel that we are challenging a system, we often accept those sorts of restrictions. Even penalties in some cases have been levied on student groups, such as Students for Justice in Palestine, and even [on professors] in the extreme firing or denial of tenure, like in the case of Professor Salaita. But I think it is important to understand that in many cases, even those restrictions that may seem quite benign, actually violate the US Constitution, state constitutions, and local laws.
TR: After outlining how the law can protect the rights of activists, he explains how to embrace the language of international law to develop strong cases for divestment campaigns, academic boycotts, and debates. Omar gives detailed legal definitions and explanations of the terms apartheid, crimes against humanity, and genocide. He starts with apartheid.
OS: The term apartheid, which I think is increasingly the term that is being used by the movement, I personally find to be the most apt describer of the system of institutional and structural discrimination that Israel has imposed on Palestinians in all forms. There is a definition for the crime of apartheid, the word apartheid is not unique, there is the South African context, there is a convention called the International Convention on the Suppression and Punishment of the Crime of Apartheid, which was brought into force by the General Assembly of the United Nations in 1973. It has a definition for the crime of apartheid. It is a crime like murder is a crime, like rape is a crime. Then in 2002 when the Rome Statute came into operation—which established the International Criminal Court (ICC)—it also defined the crime of apartheid.
Now these definitions both contain certain key parts to their definitions. They both talk about institutionalized or systematic oppression and domination. Both definitions talk about oppression and both definitions talk about domination, and they both use this idea of institutionalized or systematic oppression or domination. And both definitions incorporate this idea of a regime that seeks to maintain itself. So it is not only systematically oppressing, but it is doing so to maintain a particular regime that is based on domination by one racial group over the other. It is a systematic oppression based on preferential, systematic treatment of one group over the other with an intention of maintaining that regime. I think knowing that definition, there are a lot of ways you can apply it as we have gotten through the Israeli Palestinian conflict. Refugees, the situation in the Occupied Territories, the situation in Israel, I think there are ways you can use that definition to make the argument for apartheid.
TR: Next he explains what constitutes a crime against humanity.
OS: Crimes against humanity also have a legal definition. They are more or less specific criminal acts that happen on a widespread or systematic basis as part of an attack on civilians. It is a set of abuses that takes places pursuant to a government policy. So it is acts—whether they are murder or killing or rape or another set of abuses—based on a state policy, and it is a very serious crime. I think non-lawyers sometimes do not understand that a crime against of humanity is on the same level—in terms of a type of violation—as torture or genocide. It is a term that provides widespread jurisdiction to courts and international actors to hold perpetrators to account. It is a term that activists may consider thinking about using as it pertains to particular policies in Israel.
TR: For the third term, genocide, Omar expands the definition beyond what many assume to be limited to large-scale massacres.
OS: Genocide is another term that is sometimes used, and I think it can be thrown around loosely. I think if someone wants to make a genocide argument in any conflict, they should know that the definition incorporates key things. It is not only killing on a large scale, which is how many understand it, but it is also killing that is calculated to bring about physical destruction in full or in part of an entire population. Again, it is actions with the intent to destroy a national, ethnic, racial, or religious group as such. So if you are going to make the claim of genocide in any conflict or in this conflict, I think it is important to know those elements and to make out a claim.
TR: And finally, he identifies what constitutes a war crime before concluding with advice on how to use the law to help drive Boycott, Divestment and Sanction (BDS) campaigns.
OS: War crimes more or less refer to violations of the Geneva Conventions, which are the rules that established how to wage armed conflict. We have talked about the ICC especially in light of the recent debates, and once again, it is important to understand that the ICC can only take on certain types of crime, what those crimes may be, and the process by which the ICC acts.
Taking a step back from these definitions, the larger point here is what I started with earlier: We as lawyers often think we have all of the answers to how to solve conflict, and we do not. It really is movements and activists that change the world, but sometimes legal tools can help in understanding the law even though the law has been established largely to protect states in the international arena and entrenched interests in the domestic arena. Sometimes the law and legal tools can provide a helpful set of reference points or guideposts that can help frame the conversation, and I would encourage those who want to talk about these sort of terms to make sure they do so in a way that is precise and tight. Because when we are working in opposition to entrenched power or very strong interests, it is incredibly important that we have all out i’s dotted and t’s crossed. As I learned from a mentor in law school, you are as strong as your weakest fact, and if there is some part of your argument that can easily be torn down—including the use of a legal term or an inaccurate invocation of international law—that is the quickest way to undermine a movement when the facts on the ground very clearly should make it easy to make the argument about a type of significant abuse we see in Israel/Palestine and really on a larger scale in the Arab world today.
Part IV—Delusive Agency in Israeli Courts & Anti-Boycott Legislation
TR: For the third and final portion of our segment, we focus on the struggle for freedom of speech taking place in the region. On 15 April [2015], the Israeli Supreme Court rejected most parts of a petition filed by human rights organizations and political movements against the Anti-Boycott Law, which was enacted in 2011. The law not only imposes sanctions on any individual or entity that calls for an economic, cultural, or academic boycott of Israel’s West Bank settlements or of Israel itself, but it also allows entities to sue and win compensation from individuals or organizations that have called for the boycott. Nadia examines the case and the court’s most recent decision.
NBY: Nonetheless this decision is pretty extraordinary in that the Supreme Court refrained from defending freedom of expression. The sole purpose of the law is to silence legitimate criticism of Israeli policies, and these are Israeli policies in the illegal settlements in the West Bank as well. So the fact that you are silencing the ability of both citizens of Israel—Palestinian citizens of Israel who call for boycott, Palestinians in East Jerusalem—and that the Supreme Court approved of this silencing and the restriction of legitimate protest is pretty extraordinary. It also brings us into a discourse that is happening in the United States too where these sort of legitimate forms of criticism are being criminalized, students, activists, and institutions are being silenced, and we are entering a pretty dangerous era.
TR: Nadia discusses the mass arrests that occurred in the summer of 2013 and the emergence of illegal Facebook arrests.
NBY: There were mass arrests inside Israel and in East Jerusalem—levels that we have not seen since the Second Intifada—and a third of those were minors. We were seeing something really interesting, which we named Facebook arrests. This would be students who called for protests on their Facebook pages who were then met at home by the Israeli security forces, the police, and held in house arrest because they had called for protests. These illegal arrests and the silencing of critique also show how threatening that is, how threatening truth is, how threatening calls for justice are. You are seeing legislation, and you are seeing police forces respond to that threat.
TR: On 2 April, one day before my interview with Nadia, the United Kingdom’s University of South Hampton cancelled an event entitled “International Law and the State of Israel: Legitimacy, Responsibility, and Exceptionalism.” We asked Nadia to share her thoughts on these attempts to silence critique of Israel.
NBY: It is because it works in the short term, and that is basically the game here. It is a short-term game, because I do believe that in the long term it is not sustainable. You cannot deny justice, you cannot allow this to continue, and I am speaking as a human rights lawyer and human rights lawyers are relentlessly optimistic, so we have to wake up believing that, but it is a short-term game. Yes, you can shut down the conference, but the road is long. The road is long, and you have so many actors who are willing to speak up and stand up against these policies. So you can shut down in the short term again, but I am convinced that in the long game these are just obstacles, and we will continue to fight for the ability for people to organize, mobilize, and create the social and political transformation that is necessary.
TR: As an attorney defending the rights of a population subjugated to an apartheid system, Nadia explains Adalah’s use of impact litigation and the importance of handing off these cases to organizers regardless of the verdict.
NBY: Adalah engages in what is called impact litigation. We are a human rights organization and legal center, so we are using the law in a bit of a different way. Impact litigation is about taking a story, one case, a person’s story that represents a larger policy, a larger issue. So you take one community or one individual, and you bring that person or that community’s case through the highest legal channels that you can to start to create conversation about policy in the highest corridors of power. The idea of impact litigation is a bit different, it is also called strategic litigation, and you take cases where if you win the case, you win, but if you lose the case, you also win because impact litigation comes with a recognition that the law and the system is not meant to preserve and protect your rights. You are working within this system, so you are using it to reveal the nature of the system, but also to create the conversation necessary that is outside and bigger than the law, where the law is just a component of a larger movement.
For example with these three cases that we lost this week, the question in human rights lawyering is: How do you take a legal loss and turn it into an advocacy win? How can you mobilize around these loses? So we are thinking now, and we have had meetings with communities and different community groups in 4DH or elsewhere (52:30), to start thinking about how we can use this. How do we respond to a pretty profound loss? What does that mean and how does that change our strategy as human rights advocates? That is the work of impact litigation. It is also repositioning the law as one tool in a larger movement, and I think the partnerships we have with other civil society, with young people, with student groups who know their rights and also know how to use the law to their advantage, whether you win or whether you lose. We are in the business of impact litigation. The reality is that the law is failing in large part to protect those rights, so it is very much about the latter: How you turn the loss into some sort of gain? And that is giving the case over to communities, to organizers.
TR: We asked Nadia how the international community could assist Adalah in spreading the counter-narratives that emerge through their impact litigation. She advises organizers to link struggles globally in productive ways that builds genuine solidarity among marginalized communities.
NBY: Adalah recently, last year, decided to look into what it would mean to have a strategic institutional presence in the United States, so that is my role now as the US representative. It is about bringing these stories here. Not only bringing these stories here, but bringing the lessons of that struggle here. What are the lessons that we learn in the work that we have been doing? How does that inform and contribute to this growing movement in the United States? Whether it is about Israel/Palestine, or maybe even more interestingly, about the way that the communities [in the United States] are organizing around police violence and against the killing of minority and marginalized communities: What is social control? How do you challenge mechanisms of social control that are in many ways killing communities—in this country particularly, black and brown communities?
In Israel you are seeing similar tactics and you are seeing certainly lessons learned, so part of that work is to bring these lessons and share what we have learned in the last twenty years of this legal struggle and seeing what we can do more globally, in a transnational way, to start addressing similar systems of oppression in this country and certainly in Israel. That is part of our work. So some of it is linking those struggles in productive ways, and I think that is a way that the international community can engage anew into this issue. We are really focused on elevating the language of equality and justice into the discourse on Israel Palestine, so reclaiming this as an issue of social justice is a way that the international community can break away from a broken political paradigm that is divorced from the reality on the ground and is detrimental to the protection of human rights.
It is reframing the discourse in the country and in the international community. Particularly it is young people, people of color, marginalized communities here in this country who are saying we get this, we saw that, we understand it, and we resist it anywhere that it happens. I think that sort of struggle is what is going to destabilize a system that needs to be transformed, not just reformed, and I think the work that we do together is the work that will achieve that end.
TR: Thank you to our wonderful guests—Nadia Ben Youssef, Omar Shakir, Yaman Salahi—for an insightful look into the legalities of the struggle for academic freedom. Please be sure to listen to their individual interviews for a more detailed look into these topics. As always, I hope you will head our call for your submissions on issues concerning repression on campus and academic freedom. This is Tareq Radi hosting StatusHour segment on reclaiming academic freedom.