What does anti-BDS legislation in the United States mean for UCT?

Editorial 

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​israel & global Jewry
​[editorial]

exploring issues related to israel, israeli society & global jewry

​In this editorial, DakfaDotCom looks at what anti-BDS legislation in the United States may mean for the University of Cape Town's proposed boycott of Israeli academic institutions. 

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THE adoption by Senate of the University of Cape Town (UCT) of a resolution in favour of boycotting Israeli academic institutions has caused much consternation within the South African Jewish community and has also attracted a great deal of global interest. The issue is still very much alive: the Senate resolution needs the approval of UCT’s Council before it becomes official university policy.

An online petition opposing the boycott has garnered over 65,000 signatories. The petition  speaks of the proposed boycott as “violat[ing] the principles of academic freedom and freedom of speech” and having the possibility of “fan[ning] the flames of anti-Jewish hostility on campus”. And a group of Jewish South Africans have come out in support of the proposed boycott arguing that “[t]his establishes UCT as an adherent to international law and affirms the university as a partner in the struggle for human rights in Israel/Palestine.” Opponents of the proposed boycott have raised concerns as to how a pro-boycott position could impact fundraising and relations with alumni, research conducted by UCT academics and partnerships with scholars and universities abroad, as well as the reputation of the university. The group that supports it have labelled the threat of loss of funding as “backdoor fear-mongering.”

"Such a boycott would take place in a world where lines have already been drawn in the sand over the issue of boycotts targeting Israel."

​The resolution proposed by the Academic Freedom Committee and then adopted by Senate on 15 March 2019 states that:

UCT will not enter into any formal relationships with Israeli academic institutions operating in the Occupied Palestinian Territories as well as other Israeli academic institutions enabling gross human rights violations in the Occupied Palestinian territories. 

Following that meeting, the resolution was forwarded to Council[i]. At its meeting on 30 March 2019, Council did not adopt Senate’s resolution. After contentious debate, Council referred the matter back to Senate for an additional consultative process and a full assessment of the sustainability impact of the resolution. While both of these processes have been initiated by the university executive, their outcomes have not yet been reported to Senate. 

"In the United States ... 27 states to date have instituted anti-boycott legislation or executive orders which have been designed to prevent the boycotting of Israel."

The potential impact of the university formally adopting the resolution is poorly understood. Some have suggested that such a resolution will largely be symbolic, while others have warned of grave and very real implications for the university. For obvious reasons, understanding what would happen in the aftermath of the university adopting a pro-boycott position matters a great deal. 

Such a boycott would take place in a world where lines have already been drawn in the sand over the issue of boycotts targeting Israel. In the United States, for example, 27 states[ii] to date have instituted anti-boycott legislation or executive orders which have been designed to prevent the boycotting of Israel.

Although there have been attempts at Federal level to adopt anti-boycott legislation, to date no such legislation has been enacted by the Federal government. State-level legislation is not uncontroversial, however. Critics  argue that anti-BDS legislation is unconstitutional and violates the right to free speech, as protected by the First Amendment. In a statement on attempts to adopt such legislation at a Federal level, Senator Bernie Sanders asserted: “While I do not support the BDS movement, we must defend every American’s constitutional right to engage in political activity. It is clear to me that this bill would violate Americans’ First Amendment rights.” Proponents in favour of the legislation, such as Senator Marco Rubio, contend that it does not limit free speech but “… merely clarifies that entities — such as corporations, companies, business associations, partnerships or trusts — have no fundamental right to government contracts and government investment”.

"What impact, if any, would state laws and executive orders [in the United States] have on UCT if it were to adopt a pro-boycott position?"

UCT is the recipient of the largest amount of funding from the National Institutes of Health (NIH) -- the U.S’s primary medical research agency -- of any university outside of North America. As the NIH operates at a Federal level and no anti-boycott legislation has been passed by the Federal government, experts on anti-BDS legislation in the United States believe that there would be no direct impact on UCT’s current funding from the NIH. Uncertain, of course, is how, if at all, the U.S. government will react to UCT’s position, and whether there may be any long-term consequences for accessing funds from the NIH or other Federal agencies.

But what about at the state level? What impact, if any, would state laws and executive orders have on UCT if it were to adopt a pro-boycott position?

Where UCT may well feel the impact of adopting a boycott resolution is with its partnerships and agreements -- multiparty and otherwise -- with public universities (all of which are recipients of state funds) and with government institutions in states with anti-boycott legislation.

"Despite all these provisos and uncertainties, what is clear is that at least a portion of grants, funding, and
​partnerships with public universities in the United States could be affected." 

Although legislation is worded differently in each state, anti-boycott legislation generally has one or both of the following elements : entities have to undertake not to boycott Israel when entering into a contract with the state government, and entities that boycott Israel cannot receive state funds. 
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This, however, is more complicated than it seems.

The impact will depend on the wording of legislation in each state, specifically language that bars agencies of the state (like public universities) from entering into and maintaining contracts with pro-boycott entities. Not all legislation and executive orders ban such contracts:  there would be no immediate ramifications in such cases. Of the 27 states with anti-boycott legislation, 23 states have legislation that refers to contracting. And even then, not all legislation that refers to contracting is the same. In some cases, partnerships would not be impacted even though the particular state bars contracting with a pro-boycott entity. Further, some states have set monetary baselines  -- for example, legislation in Alabama is not applicable to contracts that are less than $15,000.

Despite all these provisos and uncertainties, what is clear is that at least a portion of grants, funding, and partnerships with public universities in the United States could be affected.

It still remains to be seen whether UCT will adopt an academic boycott of Israeli academic institutions. And if UCT does follow through on the Senate resolution, what the ramifications may be for the university -- and any partnerships and agreements between U.S. public universities in states with anti-BDS legislation and their partners at UCT. This is undoubtedly an area on which Senate and Council will need to think carefully.

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[i] Senate represents the academic staff of the university. Its members include all full professors and a selection of other representatives. Senate is the highest academic policy making body, and is chaired by the Vice Chancellor. The Academic Freedom Committee is a committee of Senate. Decisions by Senate need to be ratified by Council. Members of council act as the trustees of the university, with its members representing a variety of constituencies.

[ii] States with such legislation include South Carolina, Illinois, Florida, Colorado, Arizona, Georgia, Indiana, Iowa, Alabama, Rhode Island, New Jersey, California, Pennsylvania, New York, Michigan, Ohio, Arkansas, Texas, Nevada, Minnesota, Kansas, North Carolina, Maryland, Wisconsin, Louisiana, Kentucky & Mississippi.