Jewish Law Day Analyzed BDS Within Legal Scope


Eugene Kontorovich prefers to not call the boycott, divestment and sanctions (BDS) movement against Israel a movement at all.

“It’s called the BDS movement for a reason: to make it sound like there’s a movement behind it,” he said, “like there’s a campaign, people taking to the streets. … In fact, it should be called economic discrimination against Israel, national origin discrimination against Israelis or just old-fashioned discrimination.”

Kontorovich looked through the lens of BDS for the 35th annual Jewish Law Day, which welcomed a room of judges, lawyers and members of the Louis D. Brandeis Law Society in the Jewish Community Services Building April 6.

The evening featured a discussion led by Kontorovich, who specializes in constitutional law, federal courts and public international law, and writes for the Washington Post blog “The Volokh Conspiracy.”

Kontorovich is also a professor of law at Northwestern University School of Law. For Jewish Law Day, he discussed BDS and the effect it has on college campuses and elsewhere.

“Campuses are a big concern because campus organizations make a lot of noise. They’re students, so they can do wild and dramatic things,” he said in his talk to about 125 attendees.

He addressed the parents in the room: What’s the benefit of paying $60,000 a year in tuition for your child to go to a school where they feel unsafe as Jews and as supporters of Israel?

Although BDS has grown increasingly popular on college campuses, the biggest issue these days, he said, is with large international corporations.

“As it happens, [colleges are] probably not the most important level of BDS in the immediate sense. No American university has adopted any boycott measures to date. However, the pressure on companies is very, very on,” added Kontorovich, who lives in Israel.

These companies who support BDS are crucial because they are most likely to affect Israel and Israeli decision-making, which is the overall goal of the campaign.

“Frankly, Israel is not so concerned with what American college students think,” he said. “But as a country that is small and entirely dependent on foreign trade, they care a lot about what international companies think.”

Some academic groups have even taken on support for BDS, like the American Studies Association (ASA), which he has supported a lawsuit against.

ASA was one of the first scholarly groups to adopt the boycott — and the last, Kontorovich pointed out.

ASA “violated their own internal rules and procedures, their bylaws and constitutions, along with various provisions of the D.C. nonprofit code.”

“Basically, in their eagerness to boycott Israel, they forgot all the rules,” he explained. “The ASA departed from its scholarly mission when it chose to boycott Israel — and no other country. In doing so, it displayed total disregard for its own rules. This lawsuit is important to keep organizations true to their own rules and purposes, and keep them from being hijacked for political agendas.”

He noted how it would be ironic to boycott one’s own country, like here in the U.S., against American companies. There’s a difference between publicly opposing something and boycotting it.

“The American Studies Association has passed resolutions calling many things America has done horrible, racist war crimes,” he said as an example. “Nonetheless, they seem to manage to believe that Americans can be involved in racist war crimes without boycotting America. That would indeed be awkward for them, as for example the American Studies Association, but I assume there are people of conviction that would happy to bear the cost. We might oppose various policies of America, but we’re not going to boycott American companies, because that’s extreme.”

Seventeen states, including Pennsylvania and New Jersey, adopted anti-BDS legislation in recent years that address corporations that boycott.

These statutes deal either with pension investments, state contracting or both, stating that everyone has a right to boycott; no one will be stopped from boycotting a company because it does business with Israel or for any other reason, Kontorovich outlined.

However, a state doesn’t have to subsidize what it deems as discriminatory activity. Kontorovich called these boycotts “lightly veiled national origin discrimination,” so these states do not have to create contracts with companies that support that type of activity.

The trouble ASA has faced from this lawsuit has prevented other organizations from following the same path, he added.

“One of the goals of these efforts is to make supporters of Israel feel delegitimized, feel unsafe,” he said. “It’s ironic that at the very same time, the academic clime is being hijacked by these notions of safe spaces. … The one salient exception to that are discussions on the issues most important to Jews.”

Though he said he hasn’t personally encountered any extreme levels of anti-Semitism on campus, he said we still must teach our children how to live in these “dangerous spaces” and be tough in the face of BDS.

“It’s the kind of thing parents should think about before sending their kids to college,” he noted.

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