(May 12, 2021, JNS Wire) VIA EMAIL:
Dr. G. Gabrielle Starr
President, Pomona College, Office of the President
Claremont, CA 91711
Dear President Starr,
We write to you on behalf of the StandWithUs Saidoff Legal Department, the StandWithUs Center for Combating Antisemitism, and the Israeli American Council for Action, nonprofit organizations committed to Israel education, fighting antisemitism, and strengthening the pro-Israel and Jewish identity of the next generation. We are deeply concerned with the discriminatory and potentially illegal proposed boycott provisions found in a recent student resolution, “Banning the Use of ASPC Funding to Support the Occupation of Palestine” (“resolution”), which passed the Associated Students of Pomona College (ASPC) Senate on April 22, 2021.
First and foremost, thank you for your prompt response to the illegitimate procedure by which this resolution was put forward, an effort which aimed to preclude any possible opportunity for the mainstream Jewish community to express opposition to the measure. We commend you for showing moral clarity by sharing your own concern with the resolution’s goal of requiring all ASPC-supported student clubs to adopt a “[c]onsortium-wide agreement to ban clubs from using student government allocations to invest in or purchase goods or services from companies that contribute to the settlement and occupation of Palestinian occupied territories by the UN-designated companies or the Israeli state” on pain of losing ASPC funding.
The ASPC Resolution was part of a National Origin Discrimination Campaign called BDS
A concerted campaign is presently being waged against the world’s one and only Jewish country —attacking virtually every aspect of its historic, legal, political, economic and cultural life—with the aim of undermining the sovereignty, security and legitimacy of Israel’s very existence.
The Boycott, Divestment and Sanctions Movement (BDS) is the formal name given to the organized economic and political warfare components of that campaign. More specifically, BDS refers to the tactics employed to discriminate against Israelis, Jews, their trade partners, and supporters. BDS constitutes commercial discrimination against Israel on the basis of national origin. In the course of promoting discrimination against Israel, BDS purposefully uses misinformation and baseless claims, as well as classic antisemitic themes, such as the suggestion of Jewish subversion, conspiracy, dual loyalty, greed and economic control, and most importantly, blood libels.
While we note that the final clause in the resolution was recently tabled indefinitely by ASPC for further discussion due to its harmful impact, we write to further explain the legal implications should any of the boycott provisions of this resolution ever actually be enacted at Pomona or one of the affiliated colleges. Specifically, we wish to bring to your attention, and to that of the ASPC, that such boycott activity would likely violate federal laws prohibiting boycotts of foreign countries.
BDS Promotes National-Origin Discrimination and Undermines Public Protections
Boycotts of entities and individuals of specific countries often amount to ethnic, religious, racial and/or nationality discrimination, which directly contradicts the public policy of the state and the values of its people. Engaging in or compelling national origin discrimination would blatantly conflict with the ethical standards of California and its citizens. This consideration alone should be sufficient to provide Pomona with a clear rationale for overtly rejecting the ASPC’s discriminatory initiative in the first place.
Illegal Boycott of Commercial Trade with a Foreign Nation
The boycott contemplated within the ASPC resolution, including the boycott provision the ASPC sought to impose on all student groups—on pain of losing student funding—enjoys little or no protection under the First Amendment. Such boycotts are not primary boycotts (in which the boycotter acts against the entity with which the boycotter has a grievance) or even secondary boycotts (in which the boycotting party has a goal of affecting a third party rather than the boycotted entity).
Instead, this type of boycott, which is indicative of anti-Israel BDS campaign boycotts, is a hybrid secondary-tertiary boycott (a tertiary boycott aims to affect a fourth party, which supports the third party that supports the boycotted entity). The primary issue appears to be with the State of Israel, but the BDS-related boycott itself targets entities that do not represent the Israeli government. Put differently, the bulk of the boycott activity targets the entities (secondary boycott) and those individuals or groups that support them (tertiary boycott). This hybrid type of boycott enjoys very little protection under the First Amendment, as the boycotters are not seeking to protect their own constitutional rights but, rather, to use commerce as a means of inflicting economic harm on a foreign nation (and/or to discriminate against those who support that nation).
Furthermore, this type of boycott is very likely in violation of current federal law, specifically the 1977 amendments to the Export Administration Act (EAA). These provisions seek to prevent United States citizens—and the businesses that drive the free-market economy of the nation—from being coerced, under threat of significant economic loss or ruin, into becoming embroiled in foreign conflicts (including the Palestinian conflict with Israel) and from being forced to participate in actions (such as discrimination), which are repugnant to American values and traditions.
The EAA provides in relevant part:
For the purpose of implementing the policies set forth in [subparagraph (A) or (B) of paragraph (5) of section 3 of this Act,] the President shall issue rules and regulations prohibiting any United States person, with respect to his activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to take any of the following actions with intent to comply with, further, or support any boycott fostered or imposed by a foreign country against a country which is friendly to the United States and which is not itself the object of any form of boycott pursuant to United States law or regulation:
(A) Refusing, or requiring any other person to refuse, to do business with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, pursuant to an agreement with, a requirement of, or a request from or on behalf of the boycotting country. The mere absence of a business relationship with or in the boycotted country, with any business concern organized under the laws of the boycotted country, with any national or resident of the boycotted country, or with any other person, does not indicate the existence of the intent required to establish a violation of rules and regulations issued to carry out this subparagraph.
While the language refers to the most common type of foreign boycott, i.e., a boycott fostered or imposed by another foreign country, it is important to note that the anti-boycott provisions of the EAA were intended to apply to all foreign boycotts of friendly countries, without regard to whether the promoter of the boycott is organized as a government. The text of the EAA is clear on this point, and the legislative history of the law demonstrates that it was not intended to be limited in application solely to governmental boycotts. Indeed, the law was enacted in response to a boycott sponsored by the Arab League, an international organization that, like the BDS movement, is not a foreign country’s government.
Anti-Boycott, Divestment and Sanctions (BDS) Legislation in the United States
Since 2015, 32 states have passed legislation prohibiting discriminatory boycotts of Israel and/or other commercial partners while performing duties under a state contract. In enacting these policies, each of these states has recognized that such boycotts are harmful to the state’s compelling interests and declared that the state will not be complicit in national origin discrimination.
While BDS advocates may wish to analogize requirements that entities do boycott or divest from companies doing business in or with Israel to such anti-BDS legislation, the two are entirely different, not only substantively but also legally. One action forces people to discriminate, while the other says that the state does not have to.
The Resolution Provision is Also Discriminatory In Effect
In addition to the foregoing, as you are likely aware, Title VI of the Civil Rights Act of 1964 (Title VI) prohibits discrimination based on race, color, and national origin in programs or activities that receive federal financial assistance. The Department of Education has made clear that this includes protection against discrimination based on “a person’s actual or perceived shared ancestry or ethnic characteristics, including membership in a religion that may be perceived to exhibit such characteristics (such as Hindu, Jewish, Muslim, and Sikh individuals).” In furtherance of this, former President Trump signed an Executive Order on Combating Antisemitism (“Executive Order”) in 2019, formally recognizing that Jewish students facing antisemitic discrimination on campuses enjoy protection under Title VI.
If discrimination based on race, color, or national origin occurs in a program or activity that receives federal financial assistance, the institution receiving the funds has an obligation to take proactive, corrective measures to protect its constituents or else risk losing its federal funding altogether. Because nearly all U.S. universities receive some form of federal financial assistance, it is vital that university administrators understand the implications of Title VI and take the necessary measures to protect their Jewish students, thereby minimizing the risk of losing federal funding. A program that demonizes and delegitimizes one state, the Jewish state, out of all the states in the world, and subjects it to disparate treatment, is bad enough but possibly legal. Going one step further to implement a boycott and/or impose a boycott requirement targeting supporters of the Jewish state, as this resolution does, is quite possibly antisemitic and potentially within the scope of conduct prohibited by Title VI.
Because the boycott contemplated by the ASPC resolution clearly supports the BDS movement, which involves a boycott fostered not only by civic organizations but also by foreign countries against Israel (a country which is friendly to the United States and which is not itself the object of any form of boycott pursuant to United States law or regulation), it would appear to be in direct violation of the above-referenced provisions of the 1977 amendments to the EAA. As such, we suggest that you take any and all necessary steps to ensure that your student senate understands that this type of boycott activity would cause the ASPC itself and/or student organizations to become embroiled in a foreign conflict and/or force them to participate in discriminatory activity in likely violation of federal law.
We appreciate your prompt attention to this matter.
CEO and Co-Founder, StandWithUs
Director, StandWithUs Saidoff Legal Department
Carly F. Gammill
Director, StandWithUs Center for Combating Antisemitism
Executive Director, Israeli American Council for Action