The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Do Professors Have a Right to Boycott Israeli Institutions and "Zionists"?
I was asked this question at a panel of the recent Israeli American Council national conference, and here is how I responded:
As a rule, the act of boycotting is not constitutionally protected, because it's considered an economic act, not a matter of free expression. That said, as a general matter, anyone is free to advocate a boycott, because advocacy is protected speech. In any event, regardless of constitutional considerations, no one is going to force a professor to submit a paper to an academic conference held at Tel Aviv University. So in that sense, professors are free, for example, to boycott Israeli universities as much as they want.
But a problem arises when a professor is acting on behalf of his institution.
The Boycott, Divestment, and Sanctions (BDS) movement advocates boycotting Israeli universities, which is against policy at all major universities. An individual professor has no right to go against university policy when acting on behalf of the university. The BDS movement also suggests boycotting anyone with ties to Israeli universities, and also anyone who supports what they consider Israeli violations of international law and human rights. By their lights this means, for example, anyone who supports any Israeli military action in Gaza or Lebanon, which they (absurdly) call "genocide" (and did so well before 10/7) Israel's actions. This, in turn, means boycotting almost all Israelis and most American Jews. This would be a violation of state law in many states, could be a violation of the First Amendment at state universities, would violate university policies regarding academic freedom, and likely would violate federal and state antidiscrimination laws.
And I think that's where we need to get tough. If a professor has said that he or she is personally pledged to adopt BDS and academic boycotts of Israel, we should insist that the rule that such a person may not serve as a dean, may not serve on hiring committees, may not serve on disciplinary committees, may not have any role in making decisions where they will have an opportunity to act on their stated principles and discriminate. The reason for this insistence is not because of the individuals' ideology, but because they have announced that in their professional lives they act in ways inconsistent with what would be their responsibilities acting on behalf of the university.
That said, merely stating "I think the BDS movement is a good idea," would not come within this rule, though universities would absolutely be within their rights to expect all faculty to sign a pledge that they will not discriminate based on national origin, ties to a foreign country, or political views before allowing that individual to wield university power.
Finally, I think professors have no right to refuse to write letters of recommendations to their students because they disapprove of their students' political views. There is, I think a way to do this without forcing a professor to write specifically to an organization that he disapproves of. Just tell the student, "I can't write a letter to ___ for you, but I of course will give you a generic letter of recommendation, and you can send it to whomever you wish."
