Liam Beran
The Palestine rally on Library Mall.
In the deal struck May 10 between UW-Madison leaders and protesters, the university agreed to establish additional support for students “impacted by war, violence and displacement.”
Pro-Palestinian protesters kept their part of the bargain with UW-Madison administrators this weekend; they took down their encampment on the Library Mall on Friday and commencement ceremonies proceeded with no major disruption.
In exchange, UW-Madison leaders have agreed to provide access to decision makers at the UW Foundation, which controls UW-Madison’s nearly $4 billion endowment, and UW System, so that protesters can continue to pursue their demands that these entities divest from and disclose any investments in Israel and other entities engaged in “unethical practices” including occupation.
But a relatively new state law could preempt efforts toward that goal, at least regarding any holdings by the UW System.
The state statute, which went into effect in 2018, prohibits state agencies or local governmental units from “refusing to deal with or terminating business relations with Israel — or entities that conduct business in Israel — if doing so is intended to penalize, inflict economic harm on, or limit commercial relationships with Israel.” The law also prevents state agencies from engaging in contracts above $100,000 with businesses that boycott Israel. Lawmakers passed the bill after former Republican Gov. Scott Walker enacted a similar executive order in 2017.
Spokespeople for UW-Madison, the UW System and Students for Justice in Palestine-Madison (SJP-Madison) did not respond to requests for comment on the potential impact of the state law on divestment efforts. UW-Madison spokesperson John Lucas previously pointed Isthmus to the statute as an explanation for why Chancellor Jennifer Mnookin could not suspend ties with Israeli institutions, one of the protesters’ former demands.
The UW System would fall under the definition of a state agency — any body in state government “created or authorized to be created by the Constitution or any law.” The UW Foundation would likely not be categorized as a state agency for the statute’s purposes, as it is a private organization. The intention behind a divestment action could be a point of contention in court actions on any divestment procedures — there has not been judicial interpretation of the statute to date.
Rick Esenberg, founder and general counsel of the conservative law firm Wisconsin Institute for Law and Liberty, tells Isthmus in a phone interview that if the UW System were to be deemed a state agency and divest from Israel, it would be in violation of the statute.
In its final negotiations with university leaders, SJP-Madison did not explicitly demand divestment from Israel but instead called for the UW-System and UW Foundation to adhere to “ethical investment principles.” Esenberg says that if divestment efforts were to be challenged in court, a plaintiff would be able to make a “very strong argument” that the reason for divestment is pretextual — a legal term meaning a false argument made to hide prohibited action — given that divestment would come in the context of protests and communications from SJP-Madison that called for divestment from Israel.
The UW System has investments in some BlackRock exchange-traded funds (ETF) with ties to Israel. Protesters have said BlackRock’s ACWI ETF is their main focus for UW System divestment efforts.
According to SJP-Madison’s investment principles, unethical investments would include those involved in the manufacturing of arms or management of private prisons in occupied territories, as defined by the Hague Regulations of 1907, Geneva Conventions of 1949, and international law. The principles note that occupied territories include “Palestinian land currently under the illegal occupation” which includes “the West Bank, Jerusalem and Gaza.”
Sen. Steve Nass, R-Whitewater, one of the cosponsors of the boycott bill, tells Isthmus that “the law in Wisconsin prohibits state agencies from participating in efforts aimed at boycotting Israel.” Nass, a frequent and acerbic critic of UW-Madison and UW System, adds that he has “little confidence in the feckless administration throughout the UW System in resisting the repulsive demands from the supporters of Hamas terrorists that have already been violating state law and campus rules for weeks.”
Nass also said that state lawmakers would consider how UW administrators handle the protesters’ demands in putting together the next state budget. During the 2023-2024 legislative session, Republicans who control the Joint Finance Committee and Joint Committee on Employment Relations held up building funds for a new engineering building at UW-Madison and employee pay raises over their displeasure of diversity, equity and inclusion programs at campus schools. Rep. Mark Born and Sen. Howard Marklein, who co-chair the Joint Finance Committee, did not return calls for comment.
“The Legislature has the power of the purse string to hold administrators and faculty in the UW System accountable for enabling pro-terrorist protesters and intentionally perpetuating a hostile climate for Jewish students and employees,” Nass says. “The next state budget will provide legislators with the opportunity to act decisively in addressing the shameful conduct we have been witnessing in the UW System.”
Protest organizers told UW-Madison student newspaper The Daily Cardinal that the encampment was focused around the “genocide of Palestinians” and not Hamas’ actions.
Wisconsin is not the only state with an anti-boycott divestment and sanctions law (BDS). The Jewish Virtual Library reports that 38 states have passed anti-BDS laws, with varying degrees of restriction.
Former Sen. Dale Kooyenga, R-Brookfield, who authored Wisconsin’s proposal, told members of the Assembly’s government accountability committee in a 2018 letter that the BDS movement “exclusively targets the world’s only Jewish state, Israel, for criticism while ignoring conflicts and countries engaged in major human rights violations around the world.” Supporters of the BDS movement have denied charges of antisemitism and said the movement aims to financially target organizations, not individuals, that are complicit in Israel’s “serious violations of international law.”
Debates around student-led divestment efforts aren’t new to UW-Madison. In 2017, the university’s student government, Associated Students of Madison (ASM), faced criticism from university administrators, including former Chancellor Rebecca Blank, for passing a resolution that called for the UW Foundation to divest from private prisons, fossil fuel corporations, arms manufacturers and some banks; the resolution passed after ASM tabled a more specific resolution that called for divestment from Israel. At the time, ASM leaders said they also wanted increased transparency from the UW Foundation — a call the current pro-Palestine protesters have echoed.
SJP-Madison supported the resolution at the time, according to UW-Madison student newspaper The Badger Herald. The resolution’s sponsors told The Daily Cardinal that the resolution was not meant to mirror BDS movements. Still, some Jewish members of ASM said in 2017 that they felt alienated by the original resolution and walked out of the meeting at which it was debated. The resolution was non-binding, and the UW Foundation did not divest from the companies it outlined.
In the deal struck May 10 between UW-Madison leaders and protesters, the university made several promises unrelated to disclosure and divestment.
Administrators agreed to invite a Palestinian scholar to campus for at least the next three years and to establish additional support for students “impacted by war, violence and displacement.” They also said that by the end of the fall 2024 semester UW-Madison’s International Division would submit a report on how to grow those engagements.
The university also vowed to request that the UW-Madison Police Department use its “discretion” while reviewing cases from May 1, when officers arrested 34 protesters during law enforcement attempts to break down the Library Mall encampment. It also said that UW-Madison’s Office of Student Conduct and Community Standards would consider the protesters’ compliance in taking down the tents a “mitigating factor” in student disciplinary proceedings.
Though protesters acknowledged the deal they cut “does not achieve” divestment, the protesters hope to use the momentum they have gained to keep applying pressure.
“We know that these parties have been resistant to divestment in the past, not only in this specific context, but also for example looking at fossil fuel divestment,” Dahlia Saba, an SJP-Madison member, told reporters May 10. “However we hope that the university administration will use their leverage and support us and we are also pursuing other avenues to use the power of the university to obtain divestment.”
The protesters plan to continue pushing for divestment through the summer and fall and beyond, Saba said: “It is on all of us in the community to hold this university to their word, to keep them accountable and to keep pushing beyond just the text of this agreement.”
