Refusing study in Israel is a bitter lesson in discrimination

Imagine a white university professor telling a highly qualified African-American student that he refused to recommend her for a year-abroad program to an African country because he disapproved of the way that country treated its white minority. That professor would be ostracized, boycotted, reprimanded, disciplined or fired.

Well, now the shoe is on the other foot: A left-wing professor at the University of Michigan, John Cheney-Lippold, has refused to recommend a highly qualified Jewish student for study in Israel. How do we know she was qualified? Because the professor already had agreed to recommend her. Then he noticed that she wanted to study in Israel, with whose policies he disagrees. So he withdrew his offer to recommend her based on his support for the boycott of Israeli universities.

{mosads}This pernicious boycott tactic is designed to cut off all academic, scientific, cultural and other contacts with only one country: the nation state of the Jewish people. Many who support singling out Israel will actively encourage academic contacts with Russian, Cuban, Saudi, Venezuelan, Chinese, Belarusian and Palestinian universities, despite the horrid human-rights records of these undemocratic countries and the discriminatory policies of their universities. Israel is one of the world’s most democratic nations, with one of the best human-rights records and among the freest, most diverse universities. Yet it is the only target of this bigoted academic boycott. And the Boycott-Divestment-Sanctions (BDS) tactic applies only to Jewish Israelis, not Muslims.

This hypocritical professor probably would not hesitate to recommend his student to universities that discriminate against gay and transgender, women, Jewish or Christian students. Israeli universities do not discriminate against anyone; on the contrary, they have affirmative-action programs for Muslim and black students. They are on the forefront of scientific, technological and medical innovations which benefit the entire world, and would be set back by boycotts.

Defenders of Professor Cheney-Lippold will argue that he has the “academic freedom” to decide who to recommend and who not to recommend. But even his defenders would have to agree that if his decision to refuse to recommend a particular student was based on improper factors — such as race, gender, sexual preference or religion — academic freedom would not protect him against charges of discriminatory action. The question, therefore, is whether refusing to recommend a student for a year abroad in Israel constitutes a permissible or impermissible basis.  

The answer rests on the “shoe on the other foot” test. If a university would allow a professor to refuse to recommend a student to an African country, to a Muslim country or a communist country, then it might be permissible to refuse to recommend her to a Jewish country. It is more than ironic that many of the same radical leftists who would support Professor Cheney-Lippold’s discriminatory action have strongly opposed President Trump’s travel ban, precisely because it focused on Muslim-majority countries — many of which are among the most discriminatory human-rights offenders and facilitators of terrorism. Yet they would support a ban against a Jewish country that does not discriminate and that fights terrorism within the rule of law.

His defenders also argue that Israel sometimes disallows Palestinian Americans from joining academic programs at Israeli universities. But Muslim countries bar women, gays, Israelis and Jews from attending their universities. Yet, Professor Cheney-Lippold would probably not hesitate to recommend a Muslim student to spend a year at such a Muslim university.

Academic freedom may permit a professor to advocate a boycott against Israeli (or any other) universities, misguided as that may be. But it does not permit a professor to actually discriminate against one of his students based on invidious factors. A teacher must treat all of his students fairly and equally, without regard to their religious, political or ethnic views or identities. Just as academic freedom would permit a racist, sexist, homophobic, anti-Muslim or anti-Jewish professor to express his bigoted views outside the classroom, so too academic freedom would protect Professor Cheney-Lippold for expressing anti-Israeli views — but it does not protect him from discriminating against a student who has different views.

The University of Michigan has issued an unsatisfyingly weak response and must now decide what its policy is, and what it will be going forward, with regard to professors of either the radical left or the alt-right who act on their bigotry by refusing to recommend qualified students to universities in countries with whose actions they disagree.

Whatever policy the university adopts must be equally applicable to all universities in all countries. The University of Michigan is a public university which, unlike private universities, may have more legal constraints on their actions. It must adopt a fair policy for this and future cases that does not allow professors to discriminate against students based on invidious factors. Shame on Professor Cheney-Lippold for allowing his wrong-headed political views to override his academic and legal obligation not to discriminate against students who disagree with him.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.