CUNY Law faculty’s problematic endorsement of anti-Israel stance

It was not unexpected last December when the left-leaning student government at the City University of New York (CUNY) Law School adopted a resolution “proudly and unapologetically endors[ing] the Palestinian-led call for Boycott Divestment, and Sanctions (BDS) against Israel.” Similar exercises have become commonplace among students, with scant effect on the real world. It was more surprising last month, however, when the CUNY Law faculty unanimously endorsed the students’ resolution, in a move that might jeopardize the law school’s legitimacy.

CUNY Law promotes itself as the “number one public interest law school in the nation.” With a stated mission of transforming “the law so that it includes those it would otherwise exclude, marginalize, and oppress,” CUNY Law naturally attracts progressive students, eager to participate in its clinical education programs. The goal of the Creating Law Enforcement Accountability and Responsibility Clinic, for example, is to “support Muslim, Arab, South Asian, and all other communities . . . that are targeted by local, state, or federal government agencies under the guise of national security and counterterrorism.”

The student government’s impressively researched boycott resolution covers six pages, with 20 paragraphs of accusations against Israel and 26 footnotes. It protests every conceivable university connection to Israel, from using Dell computers (because CEO Michael Dell “is an Israel backer”), to free tuition for NYPD officers (because of their exchange programs with Israel), to serving Sabra hummus (because obviously).

Citing a 2016 executive order from then-Gov. Andrew Cuomo, Chancellor Felix Matos Rodriguez announced that “CUNY cannot participate in or support BDS activities,” and flatly rejected the students’ demand to terminate exchange programs with Israel. The students had virtuously signaled their solidarity with the Palestinian cause, and the chancellor had asserted CUNY’s authority to ignore them. And there matters stood.

But not for long. On May 13, a CUNY Law graduation speaker – a Palestinian-American activist elected by her classmates – announced that the law faculty “just officially endorsed” the students’ BDS resolution. That attracted media attention, and for good reason. Students’ demands are mostly ineffectual, but the faculty is in a position to implement its resolutions. And unlike law students, the faculty does not turn over every three years. That gives its anti-Israel pronouncements permanent standing that may have repercussions in the future.

A CUNY Law spokesperson informed me that the faculty’s BDS endorsement had been unanimous, without any qualifiers or reservations. This is troubling because the students’ resolution is entirely lacking in balance or nuance. Going far beyond a call to end discrimination and the occupation of Palestinian territory, it refers five times to Israel’s alleged “apartheid, genocide, and war crimes,” with additional accusations of “settler colonialism and structural racism.”

These charges, officially embraced by every single faculty member, will surely give pause to any mildly pro-Israel, or even politically neutral, student contemplating enrollment at CUNY Law, for fear of encountering a hostile environment. As one of only two public law schools in New York State – the other is in Buffalo – CUNY Law has an ethical, and perhaps legal, obligation to welcome students regardless of their politics, which evidently escaped the faculty in its rush to condemn Israel. This year’s unanimous vote can too easily become next year’s unquestioned orthodoxy, and ultimately an implicit condition of acceptance in the community.

It gets worse. The faculty accepted “the Palestinian-led call for Boycott, Divestment, and Sanctions (BDS) against Israel.” The scope of that commitment is only revealed by a link in a footnote, which leads to an extensive BDS website. A few clicks will then take readers to the “Guidelines for the International Academic Boycott of Israel,” which include “the cancellation or annulment of events, activities, agreements, or projects involving Israeli academic institutions or that otherwise promote the normalization of Israel in the global academy [including] conferences, symposia, workshops, book and museum exhibits.”

If honored by any law school, these limitations would constitute a blatant violation of academic freedom for future teachers, scholars or students interested in understanding Israel – beyond its purported crimes – in their research or education. At a public law school, such sweeping viewpoint restrictions on conferences, symposia and book exhibits – prohibiting anything that “normalizes” Israel – also violate the First Amendment.

Individual professors have an absolute right to boycott Israeli institutions as their consciences dictate, but an entire faculty’s adoption of a boycott policy infringes the rights of others. As explained by the American Association of University Professors, “when such noncooperation takes the form of a systematic academic boycott, it threatens the principles of free expression and communication on which we collectively depend.”

Students can be forgiven for endorsing a statement without fully understanding its implications. But law professors – whose careers rest on accurate footnotes – have no such excuse.

Whether it was deliberate or careless, CUNY Law’s boycott commitment may have severe consequences. A law school must be accredited by the American Bar Association for its graduates to take the New York bar, and one of the ABA’s requirements is respect for academic freedom. Likewise, the prestigious Association of American Law Schools requires its members, including CUNY Law, to promote “the core values of . . . academic freedom, and diversity, including diversity of backgrounds and viewpoints.” The ABA and AALS conduct joint site visits every 10 years to determine whether accreditation and membership are still warranted.

No other law school has enacted its own foreign policy, so it remains to be seen whether promotion of an academic boycott will affect accreditation. Chancellor Matos Rodriguez recently reiterated his rejection of the BDS resolutions, and the boycotting professors themselves might have qualms: They never publicized their resolution, it’s not on the law school’s website and the faculty deans declined to answer my specific questions about it. CUNY Law’s next accreditation review is not until 2026, so the faculty has plenty of time to reconsider its imprudent and counter-productive endorsement of the BDS movement.

Steven Lubet is the Williams Memorial Professor at the Northwestern University Pritzker School of Law. His most recent book is “The Trials of Rasmea Odeh: How a Palestinian Guerrilla Gained and Lost U.S. Citizenship.”