Faculty in Law Response to N.Y.U. Review of Law & Social Change
“Statement of Commitment to the Boycott, Divest, Sanctions Movement”

We write as professors in law across all ranks at U.S. campuses to express our deep concerns with, and opposition to, the “Statement of Commitment to the Boycott, Divest, Sanctions Movement” (“Statement”) recently issued by the N.Y.U. Review of Law & Social Change (“RLSC”).[1]

As scholars who teach and train students who will enter the legal profession and the professoriate, we are disheartened and dismayed that the student-led RLSC has embraced and adopted policies that are antithetical to the principles of open inquiry, academic freedom, and the free and unfettered intellectual exchange of ideas.

The Statement issued by the RLSC presents an unprecedented and dangerous development—a decision by the Board and Staff Directors of an academic law journal to apply political censorship to their activities. This move is not only damaging to this particular journal, but must be strongly opposed by the community of legal scholars lest it become a trend.

We urge the RLSC to reconsider its misguided Statement and to rescind it for the following reasons:

1. An academic boycott of Israel’s institutions of higher education, in compliance with the Guidelines for the International Academic Boycott of Israel established by the Palestinian Campaign for the Academic and Cultural Boycott of Israel (“PACBI”), runs roughshod over the commitment to the fundamental principles of the academy.[2] As noted by the American Association of University Professors and hundreds of university leaders, academic boycotts are inherently discriminatory and detrimental to the core values that define the academy, namely the open and unfettered communication of ideas and the academic freedom to conduct intellectual exchange and research without fear of retaliation.[3]
2. Adopting a unified viewpoint with respect to a controversial set of issues and a field of study is an intolerable stance for an academic journal to adopt and enforce (See Statement, Academic Boycott of Complicit Institutions, Article 5). The Statement explicitly states that those journal submissions which fail to conform to the virulently anti-Israel political viewpoints of the Board and Staff Editors will be summarily rejected. Academic journals do not typically articulate or adopt foreign policies in their mission statements. While many academics in Israel object to the Israeli government’s policies and practices, for the RLSC to require Israeli universities and academics to adopt a specific position on controversial political debate chills the free expression of viewpoint and is a serious infringement of academic freedom. Such political litmus tests impede the exchange of ideas and are reminiscent of practices in authoritarian regimes, where academic journals have established similar rules and requirements.[4]
3. The Statement’s assertion that the “academic boycott targets complicit institutions, not individuals” has been shown to be false. The boycott of Israeli universities cannot be meaningfully separated from the faculty and students who work, teach, and study in them. The BDS/PACBI boycott of Israeli academic institutions is therefore more aptly described as a blacklist which punishes and discriminates against individual academics on the basis of their nationality, political views, and the policies and actions of their employers and their government.[5] Furthermore, unless the RLSC is also committed to extending its boycott to Arab faculty of Israeli universities, the Statement should be seen as calling for discrimination on a religious basis as well, since only Jewish-Israeli academics will be ensnared by it.
4. In addition to impeding open intellectual inquiry and curtailing the personal academic freedom of Israeli academics, the RLSC’s commitment to “all” of the academic boycott Guidelines specified by PACBI (see Statement, note 7) will have a negative impact on NYU students. Implementing an academic boycott of Israel in accordance with PACBI Guidelines would include working to shut down study abroad programs; refusing to write letters of recommendation for students who wish to study in Israel; and “resisting” all educational activities involving collaboration with Israel’s universities, such as those that promote coexistence and which bring Israeli and Palestinian scholars together on joint projects. Consequently, the RLSC’s call for an “institutional boycott” would harm NYU students by denying them valuable educational opportunities.[6]
5. The Statement’s rhetoric disappointingly contradicts NYU’s aspirational community values which call for open expression within a climate that fosters tolerance and compassionate understanding, active listening and civil discourse, and self-awareness and mutual respect.[7] We recognize that the Board and Staff Editors of the RLSC have the right to express their solidarity with Palestinians by promoting the BDS narrative and its monochromatic characterization of Israel.[8] Nonetheless, by delegitimizing and demonizing Israel, BDS is inimical to the inclusive and respectful learning community to which NYU aspires. As has been documented in numerous studies and reports, while criticism of Israeli policy and actions is appropriate and warranted, BDS coarsens the discourse, and promotes prejudice and hate which isolates, demeans, and marginalizes Jews on campus. Quite frankly, BDS activism creates divisions and polarizes the campus community.[9] For example, research shows that pro-BDS student activism leads to a marked increase in antisemitic incidents and bias reporting on campus.[10]
6. The Statement inaccurately asserts that the Israeli academy is “complicit” in the oppression of Palestinians and is “profoundly implicated in supporting and perpetuating Israel’s systematic denial of Palestinian rights.” In fact, Jewish-Arab coexistence is modeled on Israel’s campuses. Israel’s higher education institutions are leaders in uniting diverse populations. In the past decade the number of Arab students in Israeli academia has doubled. At the University of Haifa, for example, Arabs make up 32% of the student body (while Arabs comprise approximately 20% of Israel’s citizenry) and there are multiple programs designed to foster multicultural engagements among students.[11]

We commend NYU and the NYU School of Law for conveying to the student-led RLSC, and the university community at large, that they are both “troubled and disappointed” by its recently issued Statement.[12] The university response helpfully reminds the campus that academic boycotts, such as the one proclaimed by the RLSC, are “antithetical to the precepts of academic freedom and the free exchange of ideas.” Furthermore, NYU has reiterated its commitment to open inquiry and campus free expression by rejecting, “as a matter of policy,” the RLSC’s call for the academic boycott of Israel and the closure of the NYU Tel Aviv program, “to which it remains fully committed.”

Given that the RLSC’s adoption of the BDS/PACBI academic boycott of Israel puts it in non-compliance with NYU policy, we urge NYU and the NYU School of Law to take immediate measures to dissociate from the journal. We recommend for their consideration the following next steps:

• Instruct the N.Y.U. Review of Law & Social Change to remove the university’s logo from its masthead and its materials;
• Ensure that any university funding or use of facilities provided to the N.Y.U. Review of Law & Social Change will not be used to implement the academic boycott of Israel.

Initial signatories are members of the Section for Faculty in Law in the Academic Engagement Network:

• Lisa Bernstein, Wilson-Dickinson Professor of Law, University of Chicago Law School
  
• Perry Dane, Professor of Law, Rutgers Law School
  
• Oren Gross, Irving Younger Professor of Law, University of Minnesota Law School
  
• Robert Katz, Professor of Law, Robert H. McKinney School of Law: IUPUI
• Sheldon Nahmod, University Distinguished Professor of Law, Illinois Institute of Technology Chicago-Kent College of Law
• Steven H. Resnicoff, Professor of Law and Director, Center for Jewish Law & Judaic Studies, Depaul College of Law
• Richard Ross, University of Illinois College of Law
  
• Dan Subotnik, Professor of Law, Touro Law School
• Fernando R. Tesón, Eminent Scholar Emeritus, Florida State University

Additional Signatories:

• Anat Alon-Beck, Assistant Professor, Case Western Reserve University School of Law
• Daniel Barnhizer, Professor of Law, Michigan State University College of Law
• Robert Blitt, Toms Foundation Distinguished Professor of Law, University of Tennessee College of Law
• Eugene Borgida, Professor of Psychology & Law, Morse-Alumni Distinguished Professor of Psychology, University of Minnesota
• Mark Conrad, Associate Professor, Law and Ethics, Gabelli School of Business, Fordham University
• Steven Davidoff Solomon, Alexander F. and May T. Morrison Professor of Law and Faculty Co-Director, Berkeley Center for Law and Business, UC Berkeley School of Law
• Gregory M. Duhl, Professor of Law, Mitchell Hamline School of Law
• Marc Edelman, Professor of Law, Baruch College, Zicklin School of Business
• Juscelino Filgueiras Colares, Schott-van den Eynden Professor of Business Law, Case Western Reserve University School of Law
• Jesse Fried, Dane Professor of Law, Harvard Law School
  
• Michael Gerhardt, Burton Craige Distinguished Professor of Jurisprudence, University of North Carolina at Chapel Hill
• Steven Greenberger, Associate Professor of Law, DePaul College of Law
• William A. Jacobson, Clinical Professor of Law, Cornell University Law School
• Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University
• Mae Kuykendall, Professor of Law, Michigan State University College of Law
• Erica Landsberg, Adjunct Faculty, The University of Kansas School of Law
• Anne Lawton, Professor of Law Emerita, Michigan State University College of Law
• Steven Lubet, Williams Memorial Professor, Northwestern University Pritzker School of Law
• Mark B. Rotenberg, Adjunct Professor of Law, American University
• Jacqueline Ross, Prentice H. Marshall Professor of Law, University of Illinois College of Law
• Aaron Saiger, Professor of Law, Fordham University School of Law 
• Ilya Somin, Professor of Law, George Mason University
• Alan M. Weinberger, Professor of Law Emeritus, Saint Louis University School of Law
• Steven Wilf, Anthony J. Smits Professor of Global Commerce, Law School University of Connecticut
• Mark G. Yudof, Professor of Law Emeritus, UC Berkeley School of Law

[1] See https://socialchangenyu.com/harbinger/n-y-u-review-of-law-social-change-statement-of-commitment-to-the-boycott-divest-sanctions-movement/.

[2] See PACBI Guidelines for the International Academic Boycott of Israel (July 9, 2014), https://bdsmovement.net/pacbi/academic-boycott-guidelines.

[3] American Association of University Professors (AAUP), “On Academic Boycotts,” (2005), https://www.aaup.org/report/academic-boycotts and “AAUP Statement on ASA Vote to Endorse Academic Boycott of Israel,” (December 16, 2013), https://www.aaup.org/sites/default/files/files/AAUPStatementASAVote.pdf. See also Association of American Universities, “AAU Board Reaffirms Opposition to Israel Boycott,” (February 14, 2016), https://www.aau.edu/newsroom/press-releases/aau-board-reaffirms-opposition-israel-boycott; and Isabella Sabri, “UC chancellors oppose academic boycott of Israeli scholars, higher learning institutions,” The Daily Californian, (December 30, 2018), https://www.dailycal.org/2018/12/30/uc-chancellors-oppose-academic-boycott-of-israeli-scholars-higher-learning-institutions/.

[4] Sarah McLaughlin, “Academic freedom and authoritarianism,” Foundation for Individual Rights in Education (FIRE), (August 30, 2017), https://www.thefire.org/academic-freedom-and-authoritarianism/.

[5] Alliance for Academic Freedom, “AAF/Ameinu Video on How BDS Targets Individuals,” The Third Narrative, (October 31, 2019), https://thirdnarrative.org/conflict-on-campus/aaf-ameinu-video-on-bds-targeting-individuals/ and Daniel Orenstein, “How Academic Boycott Targets Individuals,” The Third Narrative, (May 26, 2016), https://thirdnarrative.org/bds-does-not-equal-peace-articles/how-academic-boycott-targets-individuals/. See also Andrew Pessin and Doron S. Ben-Atar, eds., Anti-Zionism on Campus: The University, Free Speech, and BDS (Bloomington: Indiana University Press, 2018).

[6] Academic Engagement Network, “AEN/ADL Model Policy on Faculty Recommendations,” https://academicengagement.org/aen-adl-model-policy-on-faculty-recommendations/.

[7] See, for example, New York University, Global Spiritual Life, “Cultivating Beloved Community Zone,” https://www.nyu.edu/students/communities-and-groups/student-diversity/spiritual-life/religious-and-spiritual-life-on-campus/spiritual-life-trainings.html.

[8] The Statement repeatedly refers to Israel as a “settler-colonial apartheid regime.” Numerous scholars and academic studies refute this description as an inaccurate distortion of the country’s history and its contemporary features. See, for example, Jack Strawson, “Colonialism,” Israel Studies, Vol. 24, No. 2 (Summer 2019): 33-44; S. Ilan Troen, “Zionist Settlement in the Land of Israel/Palestine,” in S. Ilan Troen and Rachel Fish, eds., Essential Israel: Essays for the 21st Century (Bloomington: Indiana University Press, 2017), 62-88; Benjamin Pogrund, Drawing Fire: Investigating Accusations of Apartheid in Israel (Lanham: Rowman & Littlefield, 2014); and Einat Wilf and Oren Gross, “Jews Without Israel,” Tablet Magazine, (August 17, 2020), https://www.tabletmag.com/sections/israel-middle-east/articles/american-jews-zionism-wilf-gross.

[9] See Anti-Defamation League (ADL), “Antisemitism and the Radical Anti-Israel Movement on U.S. Campuses, 2019,” https://www.adl.org/resources/reports/antisemitism-and-the-radical-anti-israel-movement-on-us-campuses-2019.

[10] Ayal K. Feinberg, “From Scholarship to Swastikas: Explaining Campus Antisemitic Events,” The Academic Engagement Network (Research Paper No. 2, 2021), https://academicengagement.org/from-scholarship-to-swastikas-explaining-campus-antisemitic-events/.

[11] For more on how Israeli universities are investing in diversity and inclusion, see Academic Engagement Network, “Diversity, Multiculturalism, and Co-existence in Israeli Higher Education” (Webinar, June 28, 2021), https://www.youtube.com/watch?v=4DXUJwk3yp8&t=982s.

[12] New York University, “Statement by NYU Spokesperson John Beckman,” November 23, 2021, https://www.nyu.edu/about/news-publications/news/2021/november/JB_Statement_Law_School.html.