An obscure California law may prevent action on protesters’ calls for divestment from Israel

BERKELEY — One thorny detail is often overlooked amid protester calls for divestment from Israel: the looming threat of bulldozed budgets.

Local governments and public universities that accept $100,000 or more in public funding from the state of California — and that means nearly all of them — cannot act on divestment demands. It’s been barred since 2016, when then-California Gov. Jerry Brown signed AB 2844.

Last week, hundreds of pro-Palestinian students and their allies gathered in and around tents pitched in front of the steps of UC Berkeley’s Sproul Plaza, vowing to stay put until the university system officially pursues divestment. At Stanford, students also rallied with a focus on divestment. Matt Kovac, spokesman for UC Berkeley Divest Coalition, said he doesn’t “see mobilization stopping until the U.S. and UCs begin to take this seriously.”

Yet how can they? The law forbids the award of state grants or contracts of $100,000 or more to government and state organizations that support the Boycott, Divestment and Sanctions movement, known by the acronym BDS.

While protesters and human rights organizations have decried anti-BDS legislation, contending it unconstitutionally violates the First Amendment, more than 75% of U.S. lawmakers have embraced the controversial stance over the past decade.

That includes financial divestment, a tool pushed by the BDS movement along with cultural boycotts and sanctions to pressure Israel to follow international law and end its ongoing assault on Gaza, which has killed 34,000 people in retaliation for an Oct. 7 Hamas attack on southern Israel that left 1,200 people dead.

The California bill specifically prohibits funding from being awarded to organizations that discriminate against foreign countries — and explicitly mentions Israel. Proponents argue that divestment violates state and federal civil rights laws regarding business and employment. Furthermore, the BDS movement has been accused of being anti-Israel because it directly questions the legitimacy and sovereignty of the Jewish state.

After South Carolina and Illinois passed the first such laws in summer 2015, 36 other states followed suit — often with bipartisan support.

Organizations such as the National Lawyers Guild, the Center for Constitutional Rights, the ACLU, and Palestine Legal have repeatedly pushed back on laws like AB 2844 since their inception, arguing that they are “intended specifically to suppress campaigns for Palestinian rights” and “burden and deter constitutionally protected speech.”

Many of those First Amendment arguments, however, have since been quashed by courts across the country, including the U.S. Supreme Court’s unanimous refusal to review a boycott case last year.

In a statement, the UC Office of the President said that it “has consistently opposed calls for boycott against and divestment from Israel” and that “a boycott of this sort impinges on the academic freedom of our students and faculty and the unfettered exchange of ideas on our campuses.”

The last time the University of California complied with students’ calls for divestment was nearly four decades ago when mass protests that erupted in April 1985 eventually culminated in UC’s divestment of $3 billion in South Africa-related stock holdings. Nelson Mandela said in 1990 that the divestment was a catalyst that helped end the country’s apartheid.

But the BDS movement has languished in the decades since.

In 2002, UC regents chairman John Moores said the university wasn’t likely to divest any time soon. While the regents were “deeply disturbed and saddened by the continuing violence in Israel and Palestine,” he said they also “have a fiduciary responsibility to protect the security of the University’s pension and endowment funds.”

And last week, UC Berkeley spokesman Dan Mogulof further affirmed that there are no plans to change the university’s investment policies and practices.

By the end of 2023, the University of California’s investment portfolios managed $169 billion in assets — a $16.2 billion increase over the previous year, according to UC’s investment committee.

While the regents have not disclosed what proportion of its current investments have ties to Israel, the UC Berkeley Divest Coalition — representing 75 student, staff, faculty and alumni organizations calling for UC to divest — said in a statement that the UC system invests more than $2 billion in companies that supply arms.

It’s unclear how many protesters are aware how laws like AB 2844 stymie the call for divestment.

Protesters like Malak Afaneh, a third-year Berkeley Law student and Palestinian American leading the Pro-Palestine encampment, heard about the anti-BDS legislation for the first time last week while organizing on campus. But the news didn’t come as a surprise, she said, because it echoed other ways she’s seen UC Berkeley, community members and the United States’ legal system treat pro-Palestinian students’ activism.

“We see this with First Amendment rights where there’s a Palestine exception to free speech,” Afaneh said.

There is more responsiveness to similar investment demands regarding climate change or even animal rights, which aren’t subject to anti-BDS legislation, she said. “I think it just goes to show how this country is willing to protect its economic and political interests with Israel at all costs,” she said.

Notably, the only two “no” votes for AB 2844 out of California’s 120-member Legislature were cast by former Monterey County Democrat lawmakers: Assemblyman Mark Stone and Sen. Bill Monning.

Shortly after the 2016 vote, Monning and Stone both told Monterey County’s weekly newspaper that they believe boycotting is a constitutional right, comparing the competing views of pro-Palestinian protests to similar efforts by the United Farm Workers of America and Martin Luther King Jr.

Monning reaffirmed that stance Thursday.

“I voted no on the anti-BDS legislation based on my support for economic boycotts representing a nonviolent means of political expression protected by the First Amendment,” Monning said in an email. “I continue to believe that individuals and companies should not be penalized for exercising their right to participate in a peaceful, voluntary economic boycott to protect and advance the civil and human rights of oppressed minority populations.”