Australia Anti-Discrimination Law and BDS at the University of Sydney Center for Peace and Conflict Studies (UPDATED)

[I've rewritten this post to eliminate unwieldy updates and improve it--I relied too much on an incomplete account from Ha'aretz--but I've preserved the original at the end for anyone who's interested.]

An Israeli NGO, Shurat Ha’din, is suing an Australian academic, Jake Lynch, director of the Centre for Peace and Conflict Studies at the University of Sydney, for discrimination under Australian law because he refused to sponsor an Israeli professor, Dan Avnon, for a fellowship. Avnon, against whom Lynch discriminated, is, like many Israeli academics, apparently something of a lefty peacenik. Lynch sent Avnon the following email: “Your research sounds interesting and worthwhile. However, we are supporters of the campaign of Boycott, Divestment and Sanctions, and that includes the call for an academic boycott of Israeli universities.”

This raises several interesting issues. If a public university offers a fellowship to anyone worldwide, can it constitute ethnic or national origin discrimination to refuse the fellowship only to individuals teaching at a certain nation’s universities when the government in question maintains normal diplomatic (indeed, friendly) relations with that country? Does it matter if, for example, almost everyone who teaches as Israeli universities is Israeli? Does it matter if the policy would be applied to Israeli Arabs affiliated with Israeli universities and not just Israeli Jews (I’m pretty sure that if it only applied to the latter, it would constitute ethnic discrimination).

Lynch has publicly stated that “This center does not discriminate on the basis of ‘national origin.’ It acts by pointing to the policies of the Israeli government in the occupied territories … which offend Article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.” Let’s say Lynch otherwise has a solid defense to discrimination charges. But given that he’s stated this rationale, let’s assume he applies this standard only to Israel, but does not apply it to other countries that allegedly violate international law in general, have been accused of human rights violations and occupy territory (Turkey and Cyprus, China and Tibet), or are alleged to violate Article 5 specifically. Does singling out Israeli academics constitute illicit discrimination on the basis of national origin? On ethnicity? There are certain international definitions of anti-Semitism that point out that applying double standards to Israel could constitute anti-Semitism. “Could” is a weasel word, because I can think of several (mostly dumb) reasons one might apply a double standard to Israel that don’t constitute anti-Semitism. But the Lynch has a particular disadvantage in raising that as a defense, which is that his Center has been indulgent of blatant anti-Semitism, affiliating itself with a “scholar” who, in the course of criticizing Israel, asserts that ““six Jewish companies control 96 per cent of the media” in the U.S (an assertion he acknowledged borrowing from a neo-Nazi), and who held a seminar on the infamous anti-Semitic forgery, The Protocols of the Elders of Zion, claiming that its legitimate. So perhaps the question is whether someone who applies a double standard against Israel, and is content to affiliate his center with a critic of Israel who expresses blatant anti-Semitism, can be said to be engaging in discrimination against Jews.

Meanwhile, I find it easy to reject this “academic freedom” defense of Lynch and his Center:

Michael Spence, the vice-chancellor of the University of Sydney, defended Lynch’s right to free speech. Although the university “does not consider BDS appropriate,” he said it would not take any action against Lynch, according to a report in the Australian newspaper. “Academic freedom is a core principle of the university,” Spence added.

No one is questing Prof. Lynch’s right to speak his mind on any academic (or non-academic) subject of his choosing. Rather, he directs a university center at a government-owned university (which also makes any freedom of conscience defense largely moot, given that he’s a “state actor”), and is discriminating possibly contrary to Australian law, and contrary, I assume, to the university’s own policies. On what possible grounds does this constitute academic freedom? If a University of Sydney history professor refused to admit a graduate student from Pakistan into his program to protest Pakistan’s support of the Taliban, even if that graduate student actually opposed the Taliban, would that constitute an exercise of academic freedom that Vice-Chancellor Lynch would defend? It seems to me that if Lynch had behaved this way with regard to academics from any country BUT Israel, he would have almost certainly been disciplined by the university, and folks would be too embarrassed to be making specious academic freedom arguments. And note that under similar circumstances, Oxford suspended a professor who refused an Israeli graduate student.

And by the way, any academic of integrity should have nothing to do with the University of Sydney Center for Peace and Conflict Studies so long as Lynch is at the helm.

ORIGINAL POST: Australia’s 1975 Racial Discrimination Act, makes it unlawful for anyone “to do any act involving a distinction, exclusion … or preference based on race … or national or ethnic origin.” Shurat Ha’din, an Israeli NGO, is now suing an Australian academic, Jake Lynch, director of the Centre for Peace and Conflict Studies at the University of Sydney, under this law because he refused to sponsor an Israeli professor for a fellowship because he’s Israeli. Am I missing something here, or is this an open and shut case? The law bans discrimination against someone because of national or ethnic origin, and the professor confessed to discriminating against the Israeli because he’s Israeli.

Lynch’s public defense is gobbleygook: “This center does not discriminate on the basis of ‘national origin.’ It acts by pointing to the policies of the Israeli government in the occupied territories … which offend Article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.” In other words, the defense is not “we don’t discriminate against Israelis,” it’s that “we discriminate against Israelis not because we hate Israelis, but because of their government’s policies.” But the law on its face doesn’t speak to motive, and I don’t see why that’s relevant. Would it be okay for Lynch to discriminate under Australian law against aborigines, in protest of the high rate of alcoholism in aboriginal communities? How is an individual Israeli responsible for any alleged violations of international law by his government? [IMPORTANT UPDATE: Australian academics paraphrased in a different story claim that Lynch didn't discriminate against the Israeli professor because he's Israeli, but because he's affiliated with Hebrew University, which they allege, is linked to the Israeli military and "the occupation." The actual email Lynch sent is as follows: "Your research sounds interesting and worthwhile. However, we are supporters of the campaign of Boycott, Divestment and Sanctions, and that includes the call for an academic boycott of Israeli universities." On the one hand, this doesn't suggest a boycott of all Israelis; on the other hand, supporting the campaign of BDS goes well beyond singling out Hebrew Universities for its alleged infractions, and there have been examples elsewhere, especially in England, of academics acting to boycott Israel refusing to engage with Israelis solely because there are Israelis.

Meanwhile, a commenter suggests that under Australian law, one can discriminate against someone based on their current citizenship, just not based on their "national origin." I don't want to become enough of an expert in Australian law to figure out how relevant precedent would apply in this case. In any event, the law bans national origin and ethnic discrimination, which are closely tied together in the case of Israel and Jewish ethnicity. I suppose if the Centre could show that it also discriminates (or would discriminate) against Israeli Arabs in the same way and for the same reason as Israeli Jews, it would be difficult to make an ethnic discrimination charge stick. So despite the gobbleygook noted above, the case isn't open and shut. See also below--if Lynch ONLY discriminates against Israelis based on violations of international law, that makes a defense to a discrimination charge more difficult.]

For that matter, even if one accepted Lynch’s defense, wouldn’t he still be illegally discriminating against Israelis unless he refused to cooperate with individuals of ANY nationality whose government could be said to have policies that violate some significant international convention, or at least the 1965 convention he cites? Surely, for example, China violates the rights of its ethnic minorities including Tibetans (and note that Tibet is also “occupied”), uses slave labor, and otherwise violates international law in myriad ways. Does Lynch boycotts Chinese academics as he does Israeli academics? If Lynch is singling out only Israelis because its government allegedly violates international law, that would itself constitute illicit discrimination.

As readers know, I’m not a big fan of antidiscrimination laws when they intrude on freedom of conscience, but I also think that if there are antidiscrimination laws, and they apply to Jews and/or Israelis, they should be interpreted and applied as strictly (or not) on their behalf as on behalf of other national, religious, and ethnic groups.

I also don’t understand this defense of Lynch and his Center:

Michael Spence, the vice-chancellor of the University of Sydney, defended Lynch’s right to free speech. Although the university “does not consider BDS appropriate,” he said it would not take any action against Lynch, according to a report in the Australian newspaper. “Academic freedom is a core principle of the university,” Spence added.

No one is questing Prof. Lynch’s right to speak his mind on any academic (or non-academic) subject of his choosing. Rather, he directs a university center at a government-owned university [which also makes the freedom of conscience point largely moot, given that he’s a “state actor”), and is discriminating on the basis of national origin contrary to Australian law, and contrary, I assume, to the university’s own policies. On what possible grounds does this constitute academic freedom? If a University of Sydney history professor refused to admit graduate students from Pakistan into his program to protest Pakistan’s support of the Taliban, would that constitute an exercise of academic freedom that Vice-Chancellor Lynch would defend? It seems to me that if Lynch had behaved this way with regard to academics from any country BUT Israel, he would have almost certainly been disciplined by the university. [Note that under similar circumstances, Oxford suspended a professor who refused an Israeli graduate student.]

And by the way, any academic of integrity should have nothing to do with the University of Sydney Center for Peace and Conflict Studies so long as Lynch is at the helm. Unlike what Lynch does, such a boycott is both morally justified and legal under Australian law.

UPDATE: Here’s some additional background on origin of the conflict with the Israeli professor, Dan Avnon, against whom Lynch discriminated. Ironically, like many Israeli academics he is apparently something of a lefty peacenik, which both underlines the stupidity of such boycotts, but also accentuates the fact that Lynch discriminated against him purely based on national origin as an Israeli, not because he had academic or even ideological disagreements with Avnon’s work.

FURTHER UPDATE: I suppose it shouldn’t come as a surprise that the CPCS’s delicate human rights sensibilities have not prevented it from affiliating with a professor who spouts Neo-Nazi propaganda. (Which also calls into question the extent one can differentiate “national” and “ethnic” discrimination in this case.)

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