Big Media David: NPR on Arizona's anti-BDS Law

I was interviewed by NPR's Phoenix affiliate regarding the ACLU's challenge Arizona's anti-BDS law. I was positioned as the academic expert alongside the ACLU and its client challenging the law, and the AJC and Arizona Attorney General's office, defending it. Presumably, they found me either because of this column on the Israel Anti-Boycott Act or this one on the problem with trusting state bureaucrats to fight your anti-BDS battle. So I neither came out for or against the law, but rather tried to situate it inside broader controversies balancing free speech and with anti-discrimination law. The main normative point I tried to make was that when these laws are passed primarily to score an ideological point, they aren't always written or applied with the utmost care, and that poses particular dangers in the First Amendment context.

The other interesting thing I discovered while researching the case is that the Arizona AG's office does not interpret its law as covering a boycott targeting, say, HP for its alleged complicity in human rights abuses in the West Bank. Only a general boycott of all (or virtually all) Israeli products would qualify (see pp. 8-10). Whether or not that's the correct interpretation of the statute, it is a much narrower understanding of what BDS is than is typically cast either by the movement's backers or critics.

Anyway, I think it's an interesting case (and I think the NPR story was solid, all told). Most importantly, when listening to it I didn't absolutely hate the sound of my own voice, which is a rarity for me. But on that score YMMV.

Nordstrom's Terrible, Horrible, No-Good, Very Racist (and Almost Entirely Legal) Racial Profiling Scandal

Three Black teenagers shopping for prom wear at a St. Louis-area Nordstrom's had the police called on them for suspected shoplifting. But that's skipping to the end of the story. Here's the beginning:

Mekhi Lee, Eric Rogers and Dirone Taylor were shopping at the Nordstrom Rack on Thursday when they noticed store employees closely eyeing them and following them through the aisles. Lee has just completed his freshman year of college and was with his
longtime friends, Taylor and Rogers, who were shopping for prom.

[Local NAACP President Adolphus] Pruitt said that one of the men wanted to try on a shirt, so he removed his hat to do so. The store employees kept following the men, Pruitt said, so they decided to leave.

Shortly after, the man who had tried on the shirt realized he left his hat in the store, so the three of them went back. That’s when they were approached by an elderly white woman who had also been shopping.

“Now they’re confronted by an elderly white woman in the store who says to them, ‘Would your parents and grandparents be proud of what you’re doing?’ ” Pruitt said. The woman also referred to them as “a bunch of bums,” according to Pruitt.

At that point, the men asked to speak to a store manager, but employees told them they couldn’t meet with one, Pruitt said. The men left the store a second time and turned back to see the manager come to sidewalk and wave.

That’s when they chose to return, Pruitt said.

“They decided, ‘We have money, we came here to shop and demonstrate to them that we aren’t thugs. We have money like anybody else,’ ” Pruitt said. 

While the men were making their purchases, the elderly woman was in line waiting to check out behind them. The manager, who is white, opened up a new register to ring the woman up, Pruitt said.

The manager then escorted the white woman to her car, Pruitt said.

While the men were paying for their items, they heard staff employees say they were calling the police. Pruitt said the men left the store and waited for the police to arrive.

Title 42, Section 1981 of U.S. Code is one of the single oldest civil rights laws in America. Enacted as part of the Civil Rights Act of 1866, it protects the equal rights of all persons to "make and enforce contracts" (including retail transactions) notwithstanding race. As the Supreme Court has made clear, this statute "protects the would-be contractor along with those who already have contracts." Indeed, in Runyon v. McCrary, the Court described a circumstance where individuals "sought to enter into contractual relationships" but were denied the ability to do on basis of race as "a classic violation of § 1981."

So you might think that, at least if it could be proven that the behavior of Nordstrom's employees -- shadowing and surveilling the customers, denying their request to speak to a store manager, then having that manager give them a mocking wave goodbye when they left in disgust, opening a new register for the benefit of a White customer behind them in line who had called them "bums" -- were race done because of race, it would violate federal law. The customers' ability to make a desired contract with Nordstrom's (here, buying prom clothes) would have been obstructed and interfered with on account in race -- in open defiance of Section 1981.

Fun fact: You'd be wrong. And again, you'd be wrong even if it was absolutely, 100% incontestably proven that Nordstrom's did this only to Black customers, due to avowedly racist beliefs acted on by store employees.

St. Louis, Missouri, you see, lies in the jurisdiction of the United States Court of Appeals for the Eighth Circuit (indeed, the Eighth Circuit is based in St. Louis). The Eighth Circuit, for its part, is the single most conservative appellate court in the country. And so Eighth Circuit observers perhaps would not be surprised to find out that in 2009 the Eighth Circuit, sitting en banc, handed down a 6-5 decision in Gregory v. Dillard's which immunized virtually all of the above behavior from legal challenge under Section 1981.*

The court concluded that neither a department store's practice of explicitly racist shadowing and surveillance, nor racist remarks or gestures directed at the customers, nor these things in conjunction, can make out a Section 1981 violation even in circumstances where it is indisputably the but-for cause for why a customer who otherwise planned to purchase a product decides not to do so. Hence, until Nordstrom's actually called the cops on the customers -- and perhaps not even then -- everything it was doing was wholly lawful under Gregory even if there was no question that it was targeting the Black customers due to their race.

The Gregory decision held that, as a matter of law, no amount of racial harassment or disdain directed at shoppers acts to "block" or "thwart" the creation of a contract -- only an explicit refusal to make a sale will do the trick. So if you're a Black shopper in Missouri and being nakedly racially profiled causes you to leave the store in disgust -- hey, that's on you. As far as the Eighth Circuit is concerned, you should have grown a thicker skin.

And yes, in case you're curious: part of the Eighth Circuit's rationale for why Section 1981 had to be constricted so as not to include racist shadowing, surveillance, and harassment is that these practices might be necessary to stop "shoplifting". Of course.

* The lead dissent in Gregory was authored by Judge Diana E. Murphy, whom I clerked for several years later. It was joined by Judges Bye, Melloy, Smith, and (in relevant part) Benton. Judges Murphy and Bye were Clinton appointees, while Judges Melloy, Smith, and Benton were all George W. Bush appointees. All six judges in the majority were Republican appointees. Judge Smith was also the only African-American judge serving on the Eighth Circuit at that time, and I believe only the second ever to sit on that court.

Qualified Grader Roundup

I passed my qualifying exam last week, which is the last formal hurdle before I begin writing my dissertation. That's a weird sentence to write -- like talking about the last safety check before jumping out of an airplane, or the last underling to defeat before facing the Ultimate Final Boss Monster -- but it's where I am.

At the same time, my students' final exams are due today, so my immediate future is not as a writer but as a grader. And since it would be just catastrophic if anything distracted me from that essential task, I suppose it's time to clear some browser space.

* * *

I wrote last week about alleged discrimination against Jewish chaplains in the army; now we get a different story about retaliation against a chaplain in the Air Force after he converted to Judaism.

This is the story of another immigrant we, the United States of America, effectively murdered in the most gruesome way possible (the penultimate part of the story -- before the death -- is an amputated penis) via a mixture of grotesque indifference to obvious medical need and complete lack of empathy.

UC-Berkeley releases its report on campus free speech issues. One interesting thing about it is that it is not really focused on questions law. Rather, it takes for granted that Berkeley is constrained in various ways by the First Amendment, and rather than dwelling on where those precise borders lie it tries to ask what practical steps the university can take -- consistent with those strictures -- to foster and maintain a healthy speech culture.

Also germane: Jeffrey Sachs has an interesting data set on instances of speech suppression on campus. Interestingly, there have been more successful terminations of left-of-center college professors for "bad" speech than conservative professors -- and while on its own that might be explained by different base rates, the big spike in left (but not right) firings from 2015 to 2017 can't be. The other interesting finding was that -- contrary to some narratives about the so-called "Palestine exception" to the First Amendment -- Israel issues were of comparatively minor importance. There were, depending on how you count Joy Karega (Oberlin) and Michael Chikindas (Rutgers), between three and five Israel-related terminations (or coerced resignations) over the data-collecting period (out of a total of 58). Of the unambiguous cases, two were for anti-Israel speech (Steven Salaita at Illinois and N. Bruce Duthu, who returned to the regular Dartmouth faculty from a deanship position due to backlash over his role in the NAISA BDS resolution), one was for pro-Israel/anti-BDS speech (Melissa Landa at the University of Maryland).

The mixture of deep hostility to divorce, openly male supremacist theology, and physical abuse is a toxic combination in the Southern Baptist church.

Speaking of toxic Protestants, a wing of the Presbyterian Church has published a follow-up to its notorious Zionism Unsettled document -- 110 pages on why Israel is the locus point of global colonialism and genocide (this sounds familiar....) through everything from eating hummus ("cultural genocide") to wanting to actually talk to people ("normalizing oppression"). This is the latest in a series of PCUSA highlights, including calls for all Jews to "come home to America" and my absolute favorite exhortation by a Christian minister on this issue: "Jesus wasn’t afraid to tell the Jews when they were wrong."

An interesting "This American Life" segment on an ill-fated Alabama field trip to see Schindler's List.

Two good pieces on police misconduct that I wanted to flag. One is by a Black police officer commenting on business trespass calls (like the Starbucks affair). The argument here is that when individuals call the cops against seemingly innocuous conduct, there is to some extent a fobbing off of responsibility to then say the police officers are the wrongdoers rather than the caller (cf. Colorado State). The other is in the Atlantic on how we might want to extend our narratives of police bravery or cowardice to cover instances where they whistleblow (or cover off) instances of violence, racism, or misconduct by their colleagues.

Tamika Mallory's Israel Rehabilitation Tour

When the controversy over antisemitism and Tamika Mallory first flared up, I noted that it had one very interesting characteristic: it wasn't about Israel. This is somewhat uncommon in left-of-center antisemitism disputes, and one could almost hear the gears grinding in Mallory's would-be defenders. So used to having "criticism of Israel isn't antisemitic" as their "get-out-of-talking-about-antisemitism-free" card, they were left almost dumbstruck.

Mallory has been notoriously resistant to any serious reckoning with antisemitic sentiment on her part. She views herself as the victim here, and so she's seemingly cast about for new avenues to antagonize her Jewish tormentors. First it was going after the ADL. Now, as part of a "fact-finding" trip to Israel, it's blaming Netanyahu for Trump's border wall and Muslim ban.

Be clear: Donald Trump’s wall + #muslimban + #deportation plan are all lines out of the #Netanyahu book of oppression. Trump has referenced this himself. We ought pay attention & not allow folks to label us + try to black list us in to silence. #JusticeDelegation (more 2 come)

— Tamika D. Mallory (@TamikaDMallory) May 7, 2018

In response to this tweet, Abe Silberstein articulated a common sense of Jewish dismay.

I dislike Bibi and Trump in equal measure, but our xenophobic politics precedes Israel's. I appreciate the fact that you visited the region, but I wish you had a better sense of your own reputation in the Jewish community before commenting like this https://t.co/V6bCi9CuPf

— Abe Silberstein (@abesilbe) May 7, 2018

But in some ways I think Silberstein is missing the point. Mallory isn't tweeting unaware of what Jews think about her. Rather, her goal in this Israel trip is precisely to rehabilitate her reputation -- albeit not amongst Jews.

Antisemitism, like racism, tends to take the path of least resistance down to the ground. As Paul Berman noted, while we

like to think of hatred of the Jews as a low, base sentiment that is entertained by nasty, ignorant people, wallowing in their own hatefulness. . . . normally it’s not like that. Hatred for the Jews has generally taken the form of a lofty sentiment, instead of a lowly one – a noble feeling embraced by people who believe they stand for the highest and most admirable of moral views.

If one dislikes Jews, there are many ways for that disdain to manifest. But among these diverse options, people with antisemitic views want to express those views in ways that will gain social approval -- at least in the communities they care about. Hence, we should expect that antisemitic sentiments will be systematically channeled in directions where their expression can expect to find validation and laudation. The content of those sentiments will vary from community to community. In some railing against "globalist financiers" will do the trick. In others speaking of those who "crucified Christ" will work. And of course, in still others, lambasting Zionist perfidy is the winning ticket.*

Note the argument is not that "criticism of Israel is inherently antisemitic", any more than I'm saying orthodox Christian beliefs are inherently antisemitic or opposing the political preferences of wealthy billionaires is. My argument is exactly what was stated above: that in certain communities positions of this ilk provide a convenient point of discharge for antisemitic sentiments that offer up the path of least resistance. Precisely because there are perfectly valid critiques of Israel that are, on face, wholly laudable from within a progressive paradigm, a speaker harboring antipathy towards Jews and looking for a socially-acceptable vector to express them will gravitate toward that issue. A conservative speaker with the same internal sense of grievance towards Jews might pick a different path to the ground. Put another way, we should expect that if someone with progressive-inclinations harbors antisemitic sentiments (consciously or not), they'd be most likely to express them in the idiom of anti-Israel speech. Why wouldn't they? Antisemitism will always be expressed in the dominant language of the place and the time, and it is entirely predictable that people will seek to express antisemitism in ways that enhance rather than detract from their social standing.

In Mallory's case, then, the shift from Farrakhan to the ADL to Israel is a move from forms of antisemitism that encountered great resistance to that which will (again, in the relevant communities) gain plaudits. It is a rehabilitation tour because it moves her sense of grievance towards Jews out of a context where even her allies would have trouble defending her, to an arena where people in her community are quite accustomed to dismissing Jewish complaints. Even though the sequence of events for Mallory offers compelling evidence that she's at least in part motivated by a sense of antipathy against Jews, because she's now expressing her disdain in terms of anti-Israel sentiment people will ironically view further complaints about her antisemitism as weaker rather than stronger.

Finally, I want to remark on the specific content of her tweet -- claiming that Trump's anti-immigrant and anti-Muslim policies are cases of him following the Israeli lead -- because I think it's also "rehabilitative" in its way, and it's worth articulating why that's so. As many people have noted, there is something more than a bit absurd about the contention that American conservatives need an Israeli example to enact racist and White supremacist policies. Moreover, it ends up acting as an indirect apologia for American racism -- asserting that it is not truly homegrown but rather is a foreign disease imported from Israel. Why would Tamika Mallory find that sort of claim attractive?

I discussed a similar move when Winona LaDuke made a putative critique of America's implication in colonialist and genocidal practices by saying "we are Israel". One would think that "Israel is us" would be the more accurate label, since "even if we thought that Israel was a valid case of colonialism ... surely it isn't the paradigm case."

But note the subtle shift of responsibility here -- our misdeeds are characterized as following another's evil example. Israel stands in for our own misdeeds -- it is the platonic ideal of our own wrongs. We are not intrinsically bad, we're only bad insofar as we're "Israel". Our absolution comes when we're no longer Israel. It offers a way to maintain a sense of moral growth and possibility by externalizing the source of the sins onto another body deemed irredeemably corrupt.

There is, I suggest, a perverse form of patriotism at work here. By suggesting that American misdeeds are actually instances of a foreign (Jewish) infection, the implication is that the American body itself is not the problem. The issue is outwards, not inwards. The fundamental appeal of "the Jews are our misfortune" is that it actually allows for a sort of redemptive American narrative to emerge, and for even those most critical of contemporary American policies to lay claim to it.

One thing that is often-forgotten when talking about antisemitism, or racism, or other systemic hatreds, is that they are productive ideologies. They build things, they engender alliances, they motivate actions. Reflexive claims that antisemitism "hurts our movement" always thus struck me as far too pat -- of course it depends on how one defines the goals of the movement, but more fundamentally it overlooks the way that antisemitism can represent a genuine and attractive tool of mobilization. Given the choice between arguing against American support for the Muslim ban by articulating how it reflects fundamental malformations that are deeply-rooted in our national character, versus arguing against it by saying we've been led astray by the Jews -- it's quite plausible that the second route might be more effective than the first.

And so again, we see a form of rehabilitation here. Any organization seeking to make the sort of wide-ranging and deep-cutting critique of discriminatory American practices that the Woman's March does is going to face the inevitable charge that it is "anti-American" in some way. It is hard to counter these accusations, even though they are deeply unfair, because it's always hard to demonstrate love for a place or institution while simultaneously leveling a radical critique (something Jews with sharp objections to many Israeli policies are quite painfully aware of). So the temptation will be to cheat: the problem isn't with America, you see; the problem is with those Jews over there ruining America. One need not reject America; one need only "de-Zionise" it.

People think that when Tamika Mallory blames Israel as the source of American anti-immigrant and Islamophobic policies, she's revealing herself to be more radical than ever before. In reality, though, it is a significant step back towards the mainstream. The radical critique -- the one that it is so hard for many Americans to latch onto -- is the claim that we, America, are our own problem. We are responsible for our own decisions; our hatreds, our injustices, our wrongdoings stem from nobody but ourselves. In Richard Rorty's trenchant words: "There is nothing deep down inside us except what we have put there ourselves." But to the extent that problem is not in ourselves, but rather came to us from Israel -- well much of that discomfort can go away and a radical critique instantly becomes far more digestible.

Plenty of people who'd resist mightily the notion that there is something fundamentally wrong with America are entirely happy to agree that there's something fundamentally wrong with outsiders, with aliens, with others, who've insidiously managed to infect our great nation. And so I suspect that Mallory will find many willing and eager recipients of this new message. After all, it is saying nothing more than what so many have long wished to hear.

* Racism almost certainly works in the same way. People don't just want to be racist, they want to be racist in ways that earn them validation and enhanced social standing. Hence, they will flock to argumentative pathways which allow them to express hostility or disdain for racial outgroups in ways that are socially legitimate. There's a reason why so much anti-Latino sentiment now gets channeled through language about "securing the border". The issue isn't that there are no valid arguments to be had about how permissive or restrictive our immigration policy should be. The issue is that, in context, these debates are simply the most convenient forum where persons already harboring anti-Latino sentiments can discharge their antipathy with minimum social resistance. One of the primary impacts of Trumpism has been to greatly increase the number of viable social pathways for expressing racist, antisemitic, Islamophobic, and other bigoted sentiments -- greatly multiplying their "paths to the ground" and hence dramatically magnifying their social reach.

The Train Has No Brakes: Hillel Station Approaches

A group of student organizations at Cal Poly demand increases in funding for all student clubs -- except the Zionist ones. This follows the University of California Press just publishing a book calling for the American academy to be "de-Zionised" -- a chilling phrase that I had to look up to see if David Duke hadn't gotten there first.

And if you think this branch of activism is going to stop short before it gets to Hillel -- you're wrong.

An SJP activist at Stony Brook University declares "We want Zionism off this campus, so we want Hillel off this campus" (a "proper Jewish organization" where Jews can, apparently, have Sabbath services and do little else, would be acceptable).

An English Professor says that "Hillel has as much place on university campuses as does the KKK."

OPIRG refused to work with University of Ottawa Hillel when it hosted a member of the African Jewish community who did work on interfaith sustainable development projects because "Zionist Ideology does not fit within OPIRG's mandate of human right's (sic), social justice." And at York University, a Professor sent a letter to the university president demanding Hillel be disbanded as an "agent" of a foreign government.

I've leveled my share of critiques at Hillel -- for being undemocratic, for applying its "partnership guidelines" in absurd and unjustifiable ways, for privileging perceived "pro-Israel" bona fides as taking precedence over any and all other Jewish values. And why shouldn't I? No organization is immune from challenge, and if you can't criticize, you can't optimize.

But perfection is not a standard I, or any of us, should demand out of campus groups -- Jewish or otherwise -- and the attempts to expel Hillel from campus life are in no way related to valid dissent regarding the proper structuring of the Jewish collegiate experience.

There is a train that says that any iteration of Zionism or association with Jews and Israel is intolerably toxic and must be expunged. It has no brakes, and it will sooner rather than later come after Hillel and the entirety of Jewish communal life on college campuses. It already happened decades ago in the UK, where there was a concerted campaign in the 1970s and 80s to bar Jewish Societies ("JSocs") from campus as intrinsically racist. And as that tide rushes in once again, it's incumbent upon Hillel's backers and its critics to unite against it. This cannot stand.