The Wrong Jury

In recent weeks a number of Modern Language Association members have talked with me about MLA Resolution 2014-1 to be voted on in Chicago on Saturday by the organization’s Delegate Assembly at the MLA’s annual meeting. The resolution "urges the U.S. Department of State to contest Israel’s arbitrary denials of entry to Gaza and the West Bank by U.S. academics who have been invited to teach, confer, or do research at Palestinian universities.” Several people expressed doubt that any counter-evidence could be presented to question the conclusions advanced by the background paper distributed by the resolution’s proponents. They then typically advanced to the next stage of the discussion, wondering what arguments could possibly be raised to defeat the resolution. The background paper sounds reasonable, even factual, if you aren’t well informed or up-to-date about conditions in Israel and the occupied territories. The people I talked with concluded it was an open-and-shut case.

Until now, MLA members have been in the same situation as the American Studies Association members who voted on a boycott resolution in December: They have only been presented with one side of the case. But a group of MLA members have now put together a detailed document exposing factual errors, contested claims, and misleading conclusions in the background paper available to MLA members on the association’s website. Like the resolution’s proponents, they have drawn on material gathered by non-government organizations with an interest in the subject. Rather than an objective report, the pro-resolution background paper is now revealed to be essentially the prosecution’s case. The document prepared by the resolution’s opponents amounts to the case for the defense.

The case for the defense rebuts both arguments and examples put forward by proponents of the resolution. It shows that many international scholars work and teach in the West Bank. It demonstrates why visa denials may not be “arbitrary.” It shows how the documents supporting the resolution are flawed and unreliable, including some that are now out of date. And it shows how Israeli visa policies are comparable to visa policies elsewhere. There are fundamental disagreements of fact between the two sides.

The members of the MLA’s Delegate Assembly have thus become triers of the facts, acting to evaluate what are fundamentally a set of evidence-based issues: what are the conditions at Palestinian universities? Are faculty members from other countries who wish to do so able to teach there? Are Palestinian faculty members able to engage in professional travel? What Israeli security concerns that affect access are or are not valid? What travel rules should an existentially threatened country in a state of perpetual war feel justified in enforcing? Does Israel have the right to exclude foreign faculty who advocate violence?

It is fair to say that MLA members are not necessarily well-informed about the first questions and are not professionally equipped to answer the last three. They would ideally have to listen to weeks of expert testimony and questioning before voting on the resolution. Instead they will hear an afternoon’s debate by English and foreign language professors. If the resolution passes, it will then be subjected to a vote by the association’s 30,000 members.

The MLA is to be applauded for requiring a democratic vote by its members before a resolution is formally adopted by the organization as a whole. Unfortunately, neither the Delegate Assembly nor the MLA’s 30,000 members have been equipped to be triers of the facts. Indeed MLA’s members are not required to read the documents supporting or contesting the resolution. Nor will they even be able to sit in judgment and hear arguments. They would be free to vote on the basis of their prior convictions, much as many of the ASA’s members surely did. Many ASA members no doubt voted approval simply because they were angry at Israel. They took the only organizational opportunity they had to express their disapproval of Israeli policy. The efficacy or advisability of academic boycotts aside, they registered their general convictions. Indeed there is no guarantee that members of the Delegate Assembly will read the two sets of background documents before voting.

Unfortunately, the context and basis for voting on the MLA resolution are worse still. Whether or not you support academic boycotts is fundamentally a matter of principle. Principle alone can guide a vote. But the MLA resolution is fundamentally fact-based. The process the MLA uses is not adequate to the task of establishing the facts. It is fatally flawed, or at least it will be if the Delegate Assembly approves the resolution.

Before the American Association of University Professors censures a college or university administration, it reviews documents submitted by both faculty members and administrators, tasks staff to prepare a review of relevant issues and key questions needing answers, and selects a team of faculty knowledgeable about academic freedom and shared governance to visit the campus in question to interview interested parties. The AAUP then drafts a full report reaching consensus on the facts. The AAUP also shares the draft report with administrators and faculty members on the campus and requests comments. The revised report is published for comment. The organization’s 39-member National Council reviews the report and votes on whether to recommend a vote for censure to the annual meeting. This is the kind of process required to decide a fact-based case in a responsible and professional manner.

But the MLA is not merely contemplating censuring a university. It is basically censuring a country for its policies. When did MLA conduct site visits to Israel, Gaza, and the West Bank? When did the MLA give Israelis an opportunity to respond, a procedure the MLA’s rules would seem to require? Where is the consensus report evaluating arguments pro and con and giving MLA members a disinterested basis on which to vote? If the Delegate Assembly votes to approve the resolution after this flawed process proceeds, it will have undermined the credibility of the organization and gone a long way toward transforming it from a scholarly to a political one. It does not augur well for the group’s future as a widely endorsed advocacy vehicle for the humanities.

On the other hand, the Delegate Assembly has an opportunity to reject the resolution. Set beside one another, the two sets of documents make it clear that a good deal more objective evidence would be needed to prove the prosecution case. To follow through on the jury trial analogy: when the documents for and against the resolution are compared, the DA at the very least must conclude there is “reasonable doubt” the resolution is justified.

That is not to say that Israel should not take the risk of loosening the security restrictions under which Palestinian universities operate. That would be one component of a plan for jettisoning control of the West Bank, something Israel may have to do unilaterally if negotiations continue to fail.  But it is to say that MLA’s ill-informed resolution and inadequate procedures have no role to play in the process. In an era of continuing adjunct abuse and politicians declaring the humanities of no economic use, the MLA should concentrate instead on saving a profession endangered in its own country.