Professor Ilana Feldman probably did not anticipate creating a national controversy when she accepted the interim deanship of the Elliott School of International Relations at The George Washington University. Her outspoken support for the BDS movement against Israel (Boycott, Divestment, Sanctions), however, drew immediate protests, leading the university provost to announce that Feldman would not be a candidate for the permanent position.
Most of the opposition to Professor Feldman was premised on her political views, arguing for example, that “her record of dismissing terrorism, advocating for academic boycotts, and delegitimizing the State of Israel” was indicative “political bias.” Others objected that “The BDS movement does not support a two-state solution, seeks to exclude Israel and the Israeli people from the academic, economic and cultural life from the rest of the world, and undermines direct peace negotiations between the two parties.” These protests, however, squarely raised the issue of Professor Feldman’s own academic freedom, as they called for her disqualification on the basis of her protected speech and political associations. One of Feldman’s defenders called the opposition “the new McCarthyism on campus.”
In this essay, I will explain the application of viewpoint-neutral conflict of interest principles to the Feldman case, and thus more broadly to the appointment of university administrators. Although it is generally wrong and unacceptable to impose politically-based disadvantages on faculty or administrators, who should have the freedom to express their opinions without fear of consequences, there can also be situations in which an individual has voluntarily undertaken commitments that are incompatible with a deanship. Thus, it is the irreconcilability of the individual’s conflicting obligations, without regard to their substance or content, that may be disqualifying for a position of trust.
This concept is well known in the law of fiduciaries, with application to representatives, agents, trustees, directors, and officers alike. Lawyers are familiar with its articulation in Model Rule 1.7 of the Model Rules of Professional Conduct, which describes a “concurrent conflict” as the existence of “a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” Deans are not lawyers, but they are university officers and therefore fiduciaries subject to conflict-based restrictions. A political stance is not ordinarily understood as a “personal interest” for the purpose of conflict analysis, but Professor Feldman’s support for the BDS movement went beyond statements of opinion, additionally including a pledge of personal action incompatible with the duties of a dean.
Beginning in 2014 and continuing through at least 2018, Professor Feldman was a leader of Anthropologists for the Boycott of Israeli Academic Institutions, a group that spearheaded the passage of a BDS resolution by the American Anthropological Association. The boycott call signed by Professor Feldman, included the following commitment:
We pledge not to collaborate on projects and events involving Israeli academic institutions, not to teach at or to attend conferences and other events at such institutions, and not to publish in academic journals based in Israel.
Although I disagree with Feldman on the merits of her pledge, I strongly support the First Amendment and academic freedom rights of professors and others to engage in boycotts of Israel, and to take other positions and actions critical of the Israeli government (and of Israel itself). I oppose the use of legislation or litigation aimed at suppressing BDS activity, as in this recently dismissed lawsuit, and I have repeatedly stated these views in my writing.
Nonetheless, Feldman’s pledge of non-collaboration with Israeli universities created a disqualifying conflict of interest for a deanship. A dean’s administrative responsibilities are much broader than a professor’s. As an officer of the university, and a steward of university policy, a dean’s fiduciary obligations extend to all of the school’s constituent faculty and students. In Feldman’s case, that would include those who do not share her aversion to the Jewish state. Some faculty and students, especially at a school of international affairs, may want to propose a cooperative program with an Israeli university, perhaps for cultural or religious reasons, which would force a dean Feldman to choose between her honoring her pledge and supporting the proposed program.
A conflict of interest arises when an administrator (or any person in a position of trust) undertakes inconsistent obligations that cannot be concurrently fulfilled. There is no implied value judgment involved; both obligations may be perfectly acceptable, or even admirable, standing alone, while still creating an unresolvable conflict for the administrator because meeting one duty would result in failing at the other. Following the legal analogy, for example, an attorney could not agree to represent the defendant in a criminal case, where eyewitness identification is at issue, in which the victim is the lawyer’s lifelong best friend. The distinct professional and personal obligations – vigorous cross-examination on behalf of the defendant versus loyalty and kindness to the friend – could not be concurrently fulfilled.
A similar situation would be created if a pledged Israel boycotter became dean at a school of international affairs. The Elliott School’s mission, according to former dean Reuben Brigety, whom Feldman has temporarily succeeded, is to prepare students “to meet the global challenges that threaten our peace” and “push them to view the world through multiple perspectives.” Some faculty may believe that this goal can best be achieved by engaging with Israeli universities, and it would therefore be the dean’s obligation to facilitate that objective by cooperating in a school-to-school arrangement. Feldman’s pledge, however, would require non-collaboration with the Israeli institution, even if that thwarted her colleague’s own intellectual and academic freedom.
The AAUP opposes all academic boycotts because they “strike directly at the free exchange of ideas.” It follows that no university should appoint a dean who has pledged, in effect, to “strike directly at the free exchange of ideas.” The problem here is not one of punishing political views, but rather conflict of interest. Professor Feldman cannot both keep her boycott pledge and at the same time promote the free exchange of ideas, because the two objectives are mutually exclusive.
Part Two will be posted on Monday, October 5