What Prof. Katharine Franke Gets Wrong in Her NYRB Essay on Israel and Its Critics

Columbia law professor Katharine Franke has plenty of good reasons to be angry at Israel. As a human rights activist, she is rightly appalled by the 50+ years of occupation in the West Bank and Gaza, during which the oppression of the Palestinians has steadily intensified. And the current government of Israel seems determined to make things worse, most recently by enacting the discriminatory Nation State Law. In addition, Franke has been personally treated badly by the Israeli government, which deported her last spring due to her alleged support for the BDS movement (boycott, divestment, sanctions). But even taking all of that into account, there is no excuse for the exaggerations and misstatements in Franke’s recent opinion piece in the New York Review of Books.

Titled “The Pro-Israel Push to Purge U.S. Campus Critics,” Franke’s essay argues that “new policies adopted by the US and Israeli governments are intended to eliminate any rigorous discussion of Israeli–Palestinian politics in university settings.” Exhibit One for this claim is the Department of Education’s recently adopted definition of anti-Semitism, which, according to Franke, “equates any criticism of Israel with a hatred of Jews.”

This claim is simply untrue. In fact, the DOE’s new definition is the one established by the International Holocaust Remembrance Alliance. It has already been widely adopted by international and governmental bodies, including the US Department of State and, most recently, the British Labor Party. It has been endorsed by the governments of Austria, Scotland, Romania, Germany, Bulgaria, and others, with no notable impact on criticism of Israel.

It may be the case, as critics claim, that the definition sweeps too broadly, although it specifically provides that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.” Moreover, the Department of Education explicitly stated that it’s interpretations of the definition will be “consistent with the First Amendment.”

While a narrower definition might be preferable, there is no basis for Franke’s overheated assertion that the DOE now “equates any criticism of Israel with a hatred for Jews.”

But Franke does not let it rest there. In a passage that reads more like parody than irony, she implausibly claims to be so intimidated by the DOE definition that she may have to self-censor one of her courses -- “Citizenship and Nationality in Israel–Palestine” – by omitting important legal changes in Israel. Her logic is almost impossible to follow, but here it is: In 2000, the Israeli Supreme Court issued the landmark Kaadan opinion, which prohibited allocating land only to Jews. That decision was specifically overruled by the recent passage of Israel’s Nation State Law (which, though highly discriminatory and objectionable, is possible under Israel’s parliamentary system).  From this, Franke concludes that she cannot update her syllabus to include the change in Israeli law. “It seems likely,” she says, “that I might be accused of anti-Semitism under the new Department of Education guidance if I were even to discuss the merits and flaws of this position in my class.” It should be quite evident, especially to a law professor, that there is absolutely nothing in the DOE position that prevents anyone from discussing the “merits and flaws” of Israeli law, and Franke’s blatant hyperbole is an example of the purposeful exaggeration deployed throughout her essay.

Here is another example. Franke raises the case of University of Michigan Prof. John Cheney-Lippold, who was disciplined when he “declined to write a letter of recommendation for a student who sought a fellowship in Israel.” Actually, the undergraduate student was only seeking a recommendation for Michigan’s own study abroad program at Tel Aviv University, not a fellowship. In any case, Franke explains that “I would do the same if the situation arose, because I would regard it as ethically inappropriate to recommend students for an educational opportunity for which my other graduate students who are Palestinian or Arab would be prevented from applying.” There is precisely zero evidence, and Franke offers none, that any University of Michigan students are, or ever have been, prevented from applying to the program at Tel Aviv University. In fact, Cheney-Lippold himself offered a completely different rationale, explaining that he was complying with the American Studies Association boycott of Israel.

Now it is true that Israel has recently amended its Entry Law to bar BDS advocates. Offensive as the law is, however, it is based on political advocacy rather than religion or ethnicity, and it is enforced by the government, not by universities. The Israeli law is unfair, undemocratic, and badly misguided, but similar immigration laws exist in pretty much every country – some are far worse – including the United States. Franke’s own university has study abroad programs in authoritarian states such as Russia, Turkey, Hungary, Brazil, Cuba, and China, most of which discriminate against certain ethnic minorities, and all of which have visa restrictions for entering students.  Neither Cheney-Lippold nor Franke have ever explained why students should be denied recommendations for Israel alone.

This brings us to Lara Alqasem, an American student of Palestinian descent, who is at this moment studying at Hebrew University. Franke does not seem to realize that the Alqasem case undercuts her argument about the absence of “educational opportunities” in Israel for Palestinian and Arab students. Instead, Franke points out that Alqasem was initially excluded under the Israel Entry law, and detained for two weeks at Ben Gurion Airport while she successfully appealed her visa denial. According to Franke, “the Israeli courts ruled in her favor, but only after she promised not to criticize Israel . . . essentially waiving her free speech rights.” But that is a rhetorical sleight of hand. The demand to refrain from future criticism came from the Minister of Strategic Affairs, not the Supreme Court, which overruled the government and imposed no such conditions. One of the three justices, who ruled unanimously, added that the government’s position was a “dangerous and extreme step that could lead to the disintegration of the pillars upon which Israeli democracy is built.” Unacknowledged by Franke, is the fact that every research university in Israel supported Alqasem’s visa petition.

According to the New York Times, only about fifteen people have been excluded under the Israel Entry Law, and the only appeal – which was Alqasem’s – was successful. One person who did not appeal was Franke, who was detained at Ben Gurion Airport and soon deported when she attempted to enter Israel at the head of a delegation of civil rights advocates (including Farrakhan supporter Tamika Mallory). According to Franke, the border control officers yelled at her, “You are here to promote BDS in Palestine—confess!” Franke denied any such intention but the Israelis did not believe her, apparently relying on information from the generally noxious and often defamatory website Canary Mission.

Then again, the Israelis did have reason to believe that Franke intended to promote the BDS movement, and it is frankly hard to take her denial seriously. According to press accounts, Franke told the Israelis that she had no involvement with Jewish Voice for Peace, which is one of the most active promoters of Israel boycotts.  But according to the Columbia Center for Critical Thought, she has actually served on the steering committee of JVP’s Academic Advisory Council. And Franke obviously endorses BDS in her current NYRB essay, in which avows that she would find it “ethically inappropriate” to provide a recommendation for a graduate student seeking a “fellowship in Israel.” In other words, an academic boycott.

It is deeply troubling that Israel appears to have outsourced its border control decisions to Canary Mission— which is frequently vindictive, irresponsible, and unreliable – but it turns out that Franke’s Canary Mission profile  actually seems like a pretty accurate account of her committed pro-Palestinian political activity, with links to her own statements and tweets. That does not remotely justify excluding her from Israel, which was both counter-democratic and counter-productive, but it does tend to contradict her claim that she was deported due to “ugly and bigoted lies.”

There is something about Israel-Palestine advocacy that tends to bring out the worst in people. As Franke points out, the Zionist Organization of America has launched vicious attacks on academics, including Franke herself, whom they consider pro-Palestinian, or even insufficiently pro-Israel. But Franke seems equally affected by her own intense partisanship. She severely damages her credibility, and undermines even her valid points, by relentlessly slanting, exaggerating, and misrepresenting the facts about Israel.

I agree with Franke about the illegitimacy of the Israeli settlements and the oppressiveness of the Nation State and Israel Entry laws. I especially agree that “the American and Israeli governments alike should stand up for, rather than stand in the way of, open and vibrant academic debate on Israel–Palestine.” But I would add that the BDS proponents of academic boycotts have very little standing to call for open discussion, and that honest reporting is, above all, the first requirement of a vibrant debate.

Comments

[Hedley Lamarr, Car Wreck Counselor at Law, 1-800-BIG CASH NOW]

Has she ever seen the inside of a courtroom or practiced a day in her career? How does a law student monetize, pay off student loan debt or even pass the Bar with what she advocates and teaches?

[Steve Diamond]

This is very helpful in its detail and you should consider writing it up as a letter to the NYRB as well.

The problem with the BDS movement - leaving aside the question of who is really pushing it - is that it ignores the struggle for democratic rights inside Israel as suggested by the Supreme Court opinion you cite.

BDS advocates push an analogy with the apartheid era boycotts of South Africa. I organized and led one of those boycott efforts - the first divestment from South Africa campaign at UC Berkeley in the wake of the Soweto uprising in 1976. There has never been any basis for a legitimate comparison between Israel's policies and that of apartheid. In fact, that analogy originated from the Soviet Union which was trying to expand its influence in a period of national liberation movements across the African continent.

While there was literally no political oxygen to breathe for blacks in South Africa thus leading - from the early 60s – blacks and their allies among whites and Indians to take up the armed struggle, boycotts, etc. - there remains as far as I can tell room for democratic political activity inside Israel.

There is little question that there is an effort to squeeze the life out of what does remain for critics of the heavily racialized forms of Zionism. But a boycott is only appropriate if you believe the entire state structure needs to be destroyed because you have given up on normal political processes. I have no doubt that is a view held by many young American BDS supporters, but I fear that is a result of their attraction to authoritarian forms of politics emanating from the far left and the hardline elements in the Palestinian movement have been very skillful at manipulating this development.

[twbb]

Steve, any plans on having a post on the loyalty oath issue in the United States vis a vis Israel? Seems a perfect intersection of your interest in BDS issues and American law.

[Shan]

Steve what are your thoughts on this ?

https://www.haaretz.com/israel-news/.premium-the-secret-letter-detailing-israel-s-plan-to-expel-arabs-1.6766389

Eytan’s letter was until recently held in a file in the Israel State Archives titled “Minorities – Matters of Organization, Religion, Policy toward Minorities” (File No. 2402/29).
https://images.haarets.co.il/image/upload/w_640,q_auto,c_fill,f_auto/fl_any_format.preserve_transparency.progressive:none/v1545345832/1.6766392.757190008.jpg

Eytan noted that the plan called for the expulsion of more than 10,000 Arabs[1], most of them Christians, though some were Druze (Hurfeish) or Circassians (Rihana).

Contrary to its obligations, the archives does not explain in the file why documents have been removed from it and makes do instead with leaving a blank page on which is written only the word “classified.” Sheetrit’s censored letter mentions the Riftin report, which was the subject of an article by Ofer Aderet in Haaretz earlier this year (“Why is Israel still covering up extrajudicial executions committed by a Jewish militia in ‘48?”). Sheetrit’s letter, headed “Minorities in the State of Israel,” signals its theme. The writer warns, among other points, about “theft and plunder [of Arab property] both by the army and by civilians […] violation of surrender agreements about preserving property [and adds that] the lust for robbery has turned the heads of army personnel.”

The expulsion, of course, was not carried out, but in the years that followed a number of attempts were made to transfer tens of thousands of Christian Arabs from Galilee out of the country to Argentina and Brazil (the idea was described as a transfer by agreement, with or without the quotation marks). One of the plans was called “Operation Yohanan” (after Yohanan from Gush Halav – John of Giscala – a leader of the Jewish revolt against the Romans, in the first century C.E.), which the Israeli leadership considered briefly in 1952-1953, until it was shelved for lack of feasibility.

The fact that, half a year after the end of the 1948 war, Ben-Gurion considered expelling thousands of Arabs from their homes is not very flattering (the more so because they were Christian Arabs, whose welfare would probably carry more weight in world public opinion). However, whereas the study of history is amenable (to a certain degree) to an individual’s choice, the uncovering of historical documentation should not be amenable to political considerations, must not become a privilege in a democracy and must never be susceptible to considerations that are not directly related to security.

[samuel Krieger]

Note that Columbia Law has an active roster of visiting professors from Israeli law schools , many visibly Jewish students and a former dean who was a Sabbath observer .
Louis Henkin, the son of a leading orthodox rabbi and the dean of International Human rights law was along time Columbia professor.
In a 2017 editorial Franke lamented feeling “... as if I teach at the New York franchise of Hebrew University Law School…"

Wonder what the reaction would be if she similarly lamented about any other ethnic group .

[anonq]

shan

Are there any historic or presently occurring atrocities committed by Arabs that you care to mention, or, are such atrocities impossible to even conceive?

Focus especially on atrocities committed by Arabs toward Jews, please. Unaware of any? None worth mentioning?

Why not turn your attention to "uncovering" (not much effort needed actually) the truth?

To focus on every negative (or putatively negative) aspect of Israel's conduct, while failing, in nearly every instance, to balance the discussion by even mentioning the context, provocations, threats to survival, positive acts, etc. is intellectual dishonesty. This intellectual dishonesty is the stock in trade of Jew haters the world over.

BTW, to take the same approach to American politics -- by maintaining a constant state of hate, anger and outrage at any and every Republican and Republican act while totally ignoring the faults of Democrats and Democratic policies - is equally revolting and irrefutably intellectually dishonest.

Of course, intellectual dishonesty has never been a problem for most zealots in this world, and this world seems to be chock full of hateful zealots.

[Shan]

anonq: Do not justify one atrocity by comparing it to another. That is the argument of the Israel lobby i.e., look around you. The world is not perfect but also Israel isn't the victim in this debate.

It is intellectual dishonesty to shut your eyes on crimes just because others can do it. Do not deny and deflect the truth.

[Douglas Levene]

I just want to point out that the so-called "Jewish Voice for Peace" is neither Jewish nor for peace. It does not seek in any way a long term peace agreement between a Jewish-majority Israel and a Moslem-majority Palestine. Instead, it seeks to establish a Moslem-majority state occupying all the land between the Jordan River and the sea, and as for what happens to the Jews currently living there, who cares? This is what Prof. Franke advocates, let's not mince words.

[Shan]

Douglas Levene: conspiracy theories shouldn't be preached. It is like saying J-Street is not Pro Jewish compare to AIPAC.

https://jewishvoiceforpeace.org/mission/

According to their mission:

Our Political Platform

Jewish Voice for Peace is a diverse and democratic community of activists inspired by Jewish tradition to work together for peace, social justice, and human rights. We support the aspirations of Israelis and Palestinians for security and self-determination.

We seek:

A U.S. foreign policy based on promoting peace, democracy, human rights, and respect for international law.
An end to the Israeli occupation of the West Bank, the Gaza Strip, and East Jerusalem.
A resolution of the Palestinian refugee problem consistent with international law and equity.
An end to all violence against civilians.
Peace among the peoples of the Middle East.

[Hedley Lamarr, Car Wreck Counselor at Law, CALL 1-800-BIG CASH NOW]

The NYRB offered me a $15.00 one year subscription and all kinds of swag to sign up. A cotton tote and some kind of moleskin book thing that you can pick up at the Barnes and Noble scratch and dent tables for a buck. My one year subscription lapsed and holy cow....it went up to nearly a third of my fee on a Retail Theft matter. Got my one year out of the deal. Was happy too. Maybe I will get the deal again in a few months?

[anon]

Shan

"Do not justify one atrocity by comparing it to another"

Yes, of course. We should condemn the Russians for the manner in which they took Berlin.

Don't even mention the reason.

That's your answer?

[anon]

Shan

You state that JVP seeks "A U.S. foreign policy based on promoting peace, democracy, human rights, and respect for international law."

Then condemn Arab atrocities.

And "An end to all violence against civilians."

Then condemn Arab violence against civilians.

And "Peace among the peoples of the Middle East."

Then, advocate a solution to the Arab refusal to accept the existence of Israel that doesn't involve exterminating or expelling Jews in order to "establish a Moslem-majority state occupying all the land between the Jordan River and the sea."

[Shan]

@anon

1. What does Russians have to do with this topic ?
2. I do not speak for JVP, you're talking as if i should speak on their behalf. You can go on their webpage, hit the contact button and ask them to do what you're asking if it makes sense.
3. I will not condemn Arabs as it is a race which consists of Arab-Muslims, Arab-Jews, and Arab-Christians. Your statement holds no value.
4. 'Arab refusal of Israel existence' is now nonsense given Egypt has made peace with Israel since the Yom Kippur War. Same goes to Jordan that is in peace with Israel and most recently UAE.

I think you should answer to this Documentary 'The Lobby USA'

Part 1 : https://www.dailymotion.com/video/x6wisw0
Part 2 : https://www.dailymotion.com/video/x6wiuqj
Part 3 : https://www.dailymotion.com/video/x6wivtg
Part 4 : https://www.dailymotion.com/video/x6wklwn

Shalom

[anon]

shan

You are citing and quoting JVP with approval ...

You state that "Arabs are a race that includes Arab-Jews." One wonders whether Hitler realized this "fact" ... a simple survey of the literature will reveal all one needs to know about just how absurd your claim really is.

As for "Arab approval" of the existence of Israel, your comments here also reveal quite clearly the nature of the positions you support. If your point is not yet clear, let's just get to the point: Tell us whether and how you would "establish a Moslem-majority state occupying all the land between the Jordan River and the sea."

As for "settlements," one consistently wonders how anyone could accept that Arab lands, if those lands are to be so called, must be "judenrein." Lubet states: "I agree with Franke about the illegitimacy of the Israeli settlements ..."

By "settlements" do you mean any and all Jewish communities surrounded by hostile and hateful Arabs demanding to free from the burden of living anywhere near Jews?

[Shan]

@anon You have failed to answer many questions, rather you resorted to deny and deflect Israel's atrocity that is affecting many Jews. You're too blind by hate.

Resorting to stereotypes such as saying 'hateful Arabs' shows you lack wisdom. Same could be said if others say all Jews are Zionist because they are not.

Enjoy trolling until you answer the real questions that were being asked here.

[anon]

What question are you asking Shan?

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

I am not sure what Shan and anon are arguing and fighting over. Today, billions around the World are celebrating the birth of a Jewish boy. The United States might be in a state of "disgrace," and belief in Santa is "marginal," but Peace be with you.

[Bao]

@The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated such a long name by the great Yoda.

Shan and anon are both feeling lonely and in need of some love.

https://youtu.be/u-qftcUuR2s

Merry Christmas!!

[twbb]

Not going to wade into this too much, but I did want to note that the demand that someone else say something negative about "Arabs" is utterly bizarre. Shan criticized a specific nation-state and its actual policies and history; a symmetrical demand (not saying that the demand is an appropriate one) would be that he/she criticize say, Saudi Arabia, i.e. another nation-state.

[anon]

twbb

YOur point would be well taken, if your hypo was on point.

Again, should we dwell on the actions of the Russians taking Berlin, without ever mentioning the reason for those actions?

It is relevant and important to put the actions of Israel into context. And that, in the UN, and indeed, in legal academia by and large, is rarely undertaken.

A commentator on this site posted a comment about how a letter from 1948 has supposedly been "unearthed" and contains some horrible truth about how evil Israel was (and is). A legitimate response calls for balance.

Are we supposed to simply ignore the endless condemnations of Israel, even for acts NOT UNDERTAKEN: "The expulsion, of course, was not carried out," "the Israeli leadership considered briefly in 1952-1953, until it was shelved for lack of feasibility", "half a year after the end of the 1948 war, Ben-Gurion considered expelling thousands of Arabs from their homes is not very flattering ..." )? Admittedly, the comment probably deserved no response.

But, it is too rare that folks actually push back. In legal academia, it is often accepted that Jews are terrible people, especially when governing their own country. What other country and people are subjected to such constant vitriol and blanket condemnation, with no consideration of the context? Genocides may occur all over the world, but Israel is often portrayed as the world's greatest enemy, deserving constant attack from all sides.

No thanks. I'd prefer to counter rambling and raving calumnies with at least some mention of some of the context and the countervailing factors: namely, the unabated hatred that Arabs (and others) have shown toward Jews. Look, for example, at the Arabic speaking countries and tell me: How have Jews fared there? Are these countries models of democracy and freedom and tolerance? Justice? A working court system? Are the people in these countries just victims of the Jews' evil nature?

And, perhaps most importantly: How have these countries helped the "Palestinian" cause?"

By advocating death to Israel? By treatment of the "Palestinians" in their own countries?

Don't fall for that "two wrongs don't make a right" ... This is a case of dependent causation.