The Anthropologist Boycott and National Origin Discrimination

The question of whether anti-Israel boycotts violate American anti-discrimination laws (prohibiting, among other things, discrimination on basis of national origin) is an interesting one that is surprisingly underexplored. We're starting to see a little bit of it in the administrative ruling that Kuwaiti Airways discriminated against an Israeli passenger by refusing to board her on a flight to London, and of course American anti-boycott laws and regulations continue to lurk in the background.

Much of the debate is a specific manifestation of a much broader problem lying at the intersection of freedom of association and anti-discrimination norms. This has long been a vexing problem for liberal anti-discrimination theorists: how can we force someone to associate with (contract with, work alongside) someone that they do not want to? In this case, if an academic does not want to collaborate with one of her fellows (or a particular institution), isn't that their free choice? But what if the decision is taken on basis of a protected characteristic like race, religion, or national origin? Still, it seems profoundly illiberal (and probably unenforceable) to force them to engage in collaborations that they do not wish to do. Yet one could level that same objection to the application of anti-discrimination laws in any context -- and people have done just that. Compare Roberts v. United States Jaycees, 468 U.S. 609 (1984) (freedom of association rights of Jaycees were not violated by enforcement of an anti-discrimination law requiring that they admit female members) with Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (freedom of association rights of the boy scouts were violated by enforcement of an anti-discrimination provision requiring that they cease discriminating against gays).

The hard case, it seems, is one where we're talking about individualized collaborations with a given other. The easy case, by contrast, is in everyday commercial dealings: "I will not sell to you on basis of your race/gender/national origin", where such sales are otherwise made generally available. And on that note, I want to flag a provision of the pro-boycott resolution passed overwhelmingly by the American Anthropological Association last night (the resolution passes on the question to the full AAA membership):

Israeli universities would not be allowed to purchase access to a database of anthropology journals maintained by the AAA.

Whether or not the boycott generally runs afoul of American anti-discrimination law, this particular clause, at first glance, seems to do so openly and obviously. I could be wrong about this, but it seems entirely open and shut -- the free association claims in this context are pretty weak, and it just is an open admission that a given class of potential customers defined on basis of nationality will be excluded from access to a given commercial service offered by the AAA.

I'm sure the inevitable litigation will be a joy to behold.