Activists from Ithaca Jewish Voice for Peace brought a referendum to the GreenStar Food Coop in Ithaca calling for a boycott of Israeli products.  The effort was national, with big names such as Angela Davis (radical anti-Israel prof.) and Medea Benjamin (Code Pink) lending their support (see Featured Image).

The effort was rejected tonight unanimously by the GreenStar Council based on the NY State Human Rights law prohibition of boycotts based on national origin. (Full decision at bottom of post.)

Similar to the Park Slope Food Coop in Brooklyn, NY, the referenda caused enormous tension among the GreenStar membership and within the community. See our prior posts:

The proposed referenda read:

1. Shall Greenstar be required to halt the sale of all Israeli products and produce grown or produced in the Occupied West Bank in Israeli settlements, settlements which are recognized as illegal under international law?

2. Shall GreenStar be required to halt the sale of all products manufactured by the Israeli Osem Group, or any or its subsidiaries, including Tribe Mediterranean Food products, until the United Nations recognizes that the West Bank, East Jerusalem, and Gaza are no longer under Israeli military law or control?

3. Shall GreenStar be required to halt the sale of all products manufactured by the Israeli Strauss Group, or any or its subsidiaries, including Sabra Dipping Company products, until the United Nations recognizes that the West Bank, East Jerusalem, and Gaza are no longer under Israeli military law or control?

4. Shall GreenStar be required to halt the sale of all Israeli products and produce until the United Nations recognizes that the West Bank, East Jerusalem, and Gaza are no longer under Israeli military law or control?

Under GreenStar’s Bylaws, the Council (Board of Directors) had the ability to reject a referendum if the petition and referenda questions failed to comply with the rules, were legally or fiscally irresponsible, or were inconsistent with the Bylaws.

The Ithaca Coalition for Unity and Cooperation in the Middle East, a bi-partisan, multi-denominational group formed to fight the boycott attempt submitted extensive papers to the GreenStar Council challenging the referenda as contrary to GreenStar’s Bylaws in that the referenda, among other things, (1) did not comply with GreenStar’s referendum Petition requirements because the wording was changed after the petitions were signed and was false and misleading; (2) violated the NY State Human Rights Law which prohibits boycotts based on national original; (3) was economically irresponsible in that it would damage GreenStar’s brand and cause economic loss in light of widespread community opposition; and (4) violated GreenStar’s own anti-discrimination policies.

On the legal issue, ICUC-ME submitted a brief arguing that the boycott violated the NY Human Rights Law on its face, and that the Council could not expose GreenStar to potential liability:

New York Human Rights Law, §296(13) prohibits boycotts based on national origin:

It shall be an unlawful discriminatory practice (i) for any person to discriminate against, boycott or blacklist, or to refuse to buy from, sell to or trade with, any person, because of the race, creed, color, national origin, sexual orientation, military status or sex of such person, or of such person’s partners, members, stockholders, directors, officers, managers, superintendents, agents, employees, business associates, suppliers or customers, or (ii) for any person wilfully to do any act or refrain from doing any act which enables any such person to take such action. This subdivision shall not apply to: (a) Boycotts connected with labor disputes; or (b) Boycotts to protest unlawful discriminatory practices.

The Referenda do not fall under the exception for protests against “unlawful discriminatory practices” because by their terms the Referenda focus on the geo-political aspects of the conflict, not alleged discrimination by a particular business subject to the boycott. It is this broad national origin discrimination which the law was intended to prevent.

The provision in the NY Human Rights law quoted above was a direct response to the Arab League boycott of Israel. Mehtani v. NY Life Ins. Co., 145 A.D.2d 90, 94, 537 N.Y.S.2d 800, 803 (1st Dept. 1989)….

There are claims that the statute may be unconstitutional as related to boycotts as a form of speech. But no court has so held, and other anti-discrimination laws have withstood judicial scrutiny.

The GreenStar Council must not allow GreenStar to violate the terms of the law on the wishful hope that the law will be thrown out.

It would be legally irresponsible for the Council to allow GreenStar to become a test case as to whether a statute which has been no the books for decades is invalid.

Among other authorities, ICUC-ME submitted a legal opinion from The Lawfare Project.

The GreenStar Council met tonight, and ruled that based on the opinion from GreenStar’s own legal counsel, the referenda exposed GreenStar to potential legal liability under the NY State Human Rights Law, thereby impacting GreenStar’s insurance coverage. Here is an excerpt from the Council decision:

WHEREAS, the Council sought and received two, separate legal opinions, from attorneys with no connection to each other or to the parties or issues involved in this matter, namely Susan Brock, a solo practitioner in Ithaca, NY. and Marjorie Kaye, from the Philadelphia office of the Jackson Lewis law tirm; and

WHEREAS, both attorneys, in their written opinions, have advised the Council to reject the referendum petition, pursuant to Section XI 11, C ( I) of the Co-op’ s Bylaws, on the grounds that allowing it to go to a binding member vote (and possible approval of one or more of its four proposed actions) would be legally irresponsible; and

WHEREAS, both attorneys have cited the substantial possibility or likelihood that implementation of any of the actions offered by the referendum questions – i.e., the boycotting by GreenStar of goods from Israel or from certain Israel-based companies until certain pol itical changes occur in the Israeli -Palestinian conflict and are “recognized” as such by the United Nations – would lead to potentially lengthy and expensive litigation, and be judicially construed to be in violation of a provision in New York State’s Human Rights Law (Executive Law, Article 15), which prohibits companies from participating in boycotts based on national origin; and

WHEREAS, these opinions have advised that the actions proposed in the referendum do not appear to fall safely within the exception to the State law’s prohibition (for boycotts intended to protest unlawful discriminatory practices), and that the dismissal of a lawsuit brought against board members of the Olympia, Washington, food co-op, after its board agreed to support a boycott of Israeli goods, is not necessarily to be relied upon in GreenStar’s case, since the NYS statute against “discriminatory boycotts” is different from the applicable law in Washington State, and the anti-SLAPP (Strategic Lawsuits Against Public Participation) law in Washington (upon which the courts there based the dismissal) is significantly stronger than New York’s more limited version; and

WHEREAS, GreenStar’s liability insurance carrier has advised the Council to follow the advice of its attorneys, in order to preserve the Co-op’s right to maximum coverage in the event of litigation for damages against the Co-op and/or its officers and directors; ….

We will post those legal opinions if they become available. The Council’s resolution rejecting the boycott referenda passed unanimously (with one recusal) and is at the bottom of this post.

This is a very important victory, and one in which the NY Human Rights Law played a central role.  As such, it has serious implications for other boycott attempts singling out Israeli products based on national origin.

We will have more on this boycott attempt in future posts.

Greenstar Council Decision