Israel Boycott Battle Heads to Court

Four professors on Wednesday sued the American Studies Association, alleging that its boycott of Israeli universities violates Washington, D.C., law governing nonprofit corporations. The suit alleges that the academic boycott of Israel falls outside the scope of the ASA’s corporate charter and stated mission to promote the study of American culture.

The suit was filed in the U.S. District Court for the District of Columbia against the ASA and six named current or former association leaders whom the plaintiffs accuse of “hijacking” the group to advance their own political views. In late 2013, the ASA’s National Council unanimously passed a resolution endorsing the academic boycott of Israel. The council subsequently presented the boycott resolution to the full membership for an online vote in what the association describes on its website as "an unprecedented action to ensure a democratic process." Of the 1,252 members who voted over a 10-day period, 66.05 percent were in favor of the boycott.

The lawsuit against ASA alleges that this vote did not conform with procedures outlined in the association's bylaws, and argues that for a membership vote on the boycott resolution to be valid it would have needed to take place on the first full day of the association's annual meeting (rather than electronically after the meeting had concluded) and would have required approval by a two-thirds majority of those present. (The 66.05 percent tally in favor of the boycott in the electronic vote fell just short of the two-thirds mark.)

More broadly, the suit argues that ASA’s constitution at the time of the vote limited the association’s activities to the “promotion of the study of American culture” and that the defendants’ “operation of the ASA as a ‘social justice organization,’ including through the promotion of a boycott against Israel, is outside and inconsistent with the purpose of the ASA’s constitution.” The lawsuit argues that this alleged ultra vires conduct -- that is, conduct outside the scope of the ASA's organizational authority -- has “frustrated the legitimate aims and purposes of the ASA” and “resulted in the improper expenditure of ASA funds related to membership dealings, public relations, legal matters and other items including employee time and effort.”

The lawsuit against the ASA comes as the boycott, divestment and sanctions movement against Israel has gained momentum in parts of American academe. The American Anthropological Association is currently voting on a proposed resolution to boycott Israeli academic institutions. Other smaller scholarly organizations that have since 2013 approved resolutions supporting the academic boycott of Israel include the African Literature Association, the Association for Asian American Studies, the Critical Ethnic Studies Association, the National Women’s Studies Association and the Native American and Indigenous Studies Association.

The American Association of University Professors opposes boycotts as “inimical” to principles of academic freedom. Other BDS opponents reject what they see as a singling out of the Jewish state of Israel for special opprobrium.

“This is not just about the American Studies Association,” said Kenneth L. Marcus, the president of the Louis D. Brandeis Center for Human Rights Under Law, which has joined with two law firms to bring the case against the ASA. “It’s about any association officer or director who is thinking about using their association as a tool to advance their own ideological agenda. This should send a signal that if association activists are not concerned that BDS resolutions are anti-Semitic and may be a violation of academic freedom they should certainly be concerned that they may violate corporations law.”

“People who join an academic association have a right to rely on the association’s representations about what its mission is,” Marcus said. “This is about the betrayal of an organization’s fundamental purpose.”

ASA responded to the lawsuit in a brief written statement on Wednesday. “We respect the concerns that the current and former members have expressed, the complaint is under review by our attorneys, and we are open to proposals addressing the complaint to be handled within the internal processes and procedures of the ASA, to include submission of a formal resolution to the organization,” the association said.

Radhika Sainath, a staff attorney for Palestine Legal, rejected the lawsuit against ASA as “meritless” and part of a larger strategy to intimidate advocates for Palestinian rights.

“The ASA’s academic boycott resolution is aimed at promoting academic freedom for Palestinian scholars and students and thus falls squarely within the educational purposes for which it was established,” Sainath said via email. “Plaintiffs’ theory that the ultra vires doctrine could limit the ASA’s First Amendment right to endorse the academic boycott is meritless and will likely be thrown out by the court.”

“Israel advocacy groups have previously threatened to sue the ASA, alleging national origin discrimination and anti-Semitism,” Sainath wrote, linking to the appendix of a joint Palestine Legal/Center for Constitutional Rights report on what the groups characterize as “the widespread and growing suppression” of advocacy for Palestinian human rights in the U.S. “Today’s lawsuit abandons these theories. As Palestine Legal and CCR documented in our report, meritless legal threats are a tactic used to chill speech supporting Palestinian rights. Such threats are being used to intimidate advocates for Palestinian rights and deflect the conversation away from Israeli human rights violations.”

Eugene Kontorovich, a professor at Northwestern University’s Pritzker School of Law who is advising the plaintiffs’ legal team in the case against ASA, argued that the First Amendment principle that’s at stake is not one of free speech but of freedom of association. “There is freedom of association in America, but part of that freedom is when people support associations with their money and their human capital they need to know what they’re getting,” he said.

“They can say anything they want,” Kontorovich said. “The only question is, can they conduct as an association activities that contradict their mission?”

The four American Studies professors and current or former ASA members who have filed suit against the ASA are Michael L. Barton, Simon Bronner and Charles D. Kupfer, all of Pennsylvania State University at Harrisburg, and Michael Rockland of Rutgers University. Bronner and Rockland are both honorary lifetime members of the association; Bronner is also an officer and editor of the ASA’s Encyclopedia of American Studies Online.