Yesterday, the University of California’s student-worker union (UAW Local 2865)voted on whether to join the Boycott, Divestment, and Sanctions (BDS) movement against Israel. While we don’t yet know the results of the vote, we do know that its supporters have been making deceptive legal arguments in support of a motion that — if passed — would place union members and the UC system itself in jeopardy of legal liability.
Last month, my colleagues and I at the ACLJ sent the local union, the UAW national, and the UC system warning letters notifying them that we intend to hold student workers fully responsible for complying with federal law, state law, and university policy that bar — among other things — discrimination on the basis of national origin, race, and religion. The reasoning here is simple. For the boycott to mean anything at all, it would mean that UC employees — the student workers — would apply heightened scrutiny to Israeli students, professors, or other citizens to determine whether they were working on behalf of or representing Israeli institutions. This heightened scrutiny by itself is unlawful. Imagine a movement that declared it would apply heightened scrutiny to all Mexican scholars to determine their institutional affiliation. If the Israelis are determined to be representing a national institution, then the student workers will do what? Refuse to work with them? Refuse to teach them? Refuse to grade or evaluate their work?
To be clear, if any UC employee (union or not) — in the course of their job duties — takes action against an Israeli or Israeli institution because of their actual or perceived affiliation with Israeli entities, then they will violate the law.
A group called Palestine Solidarity Legal Support has written a letter in support of the boycott that defends its legality by speaking only in the most vague terms. Nowhere does it clearly describe what the boycott would mean in the real world or how the student workers would apply the boycott to their professional lives. Instead it treats the boycott as nothing more than a protected act of free speech.
While it is certainly true that individuals — acting in their individual capacity — can choose to boycott virtually any institution for virtually any reason, the union BDS motion is not about the union workers’ individual lives. Instead, because it is a formal union action, it implicates their professional lives as employees of the UC system. That fundamentally alters the constitutional calculus. Employees of the UC system are state actors, and actions taken in their official capacities are state actions. As state actors, they simply cannot — by law — determine on their own that individuals from certain nations must endure processes or punishments that individuals from other nations do not.
We shall soon see what the union chooses to do, but if it votes to boycott, I can promise that we will be watching the UC system and the union very carefully. If a union member takes an official action against any Israeli scholar, institution, or student in furtherance of that boycott, then they — and their school — should expect to be sued.
David French is a Senior Counsel at the American Center for Law and Justice. A graduate of Harvard Law School, he is a former Senior Counsel for the Alliance Defense Fund, and a past president of the Foundation of Individual Rights in Education. He has taught at Cornell Law School and served as a commercial litigation partner in the firm of Greenebaum, Doll & McDonald. His legal practice is concentrated on constitutional law and the international law of armed conflict, and he is licensed to practice before the Supreme Court of the United States. David is the author of multiple books.
Used with the permission of The American Center for Law and Justice.