Strengthening the tools of activism at academic institutions through law and collective action

By Rima Kapitan
Submitted to Session P4392 (Hey you, precarious worker: Are you afraid of BDS? Graduate students, untenured faculty, and the politics of political commitments, 2016 Annual Meeting
Law
Palestine;
Zionism;
Professors and students engaged in human rights activism know that movements for divestment and academic boycott of Israel often create a tension between students and faculty on the one hand and powerful academic administrators beholden to outside political forces on the other. Although the political climate is arguably improving, BDS activism takes political courage, and there is no escaping the fact that it does often leave individuals vulnerable to suppression and retaliation. There are a number of protective legal measures that astute activists can and do employ, however, both to prevent and respond to retaliatory administrative action.

This paper explores legal protections as well as obstacles to the protection of individual rights for academic activists in American universities. Among those protections are discrimination, whistleblower and retaliation statutes. Many universities also offer contract-based protections through student and faculty handbooks, which can be more effective tools than civil rights statutes because they do not require any proof of mental state. Students and professors should work proactively within their institutions to protect themselves before problems arise by identifying obstacles to the protection of individual rights in their policy handbooks/manuals, and then working collectively to improve democratic protections and shared governance. Professors and students at public universities also have constitutional speech and due process rights that constrain the ability of administrators to retaliate against students and faculty for boycott and divestment. This paper situates all of these legal protections within broader trends in federal civil rights law as well as new legislation designed to frustrate boycott efforts, and discusses how students and faculty, through collective action, can effectively engage with the law.