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A federal judge ordered the dismissal of a case against the American Studies Association filed by a group of current and former members who argued that in endorsing the boycott of Israeli universities, the ASA breached its contract with members and misappropriated association funds.
In dismissing without prejudice the case against ASA and several of its current and former leaders, Judge Rudolph Contreras of the U.S. District Court for the District of Columbia found that the plaintiffs lacked standing to seek damages for what they alleged were injuries to the association.
Further, Judge Contreras found that while the plaintiffs “may have meritorious claims arising from their individual injuries as ASA members,” the value of such potential claims did not exceed $75,000 and therefore fell beneath the threshold under which the federal court could act. Judge Contreras concluded that the plaintiffs "have raised allegations and presented evidence indicating that they may have meritorious claims, but they must assert these claims before the proper tribunal."
Lawyers for the plaintiffs said they were undeterred and would continue to press ahead either in federal or state court with the lawsuit.
The suit concerns a December 2013 vote in which ASA members voted by a nearly two-to-one margin in support of a resolution endorsing the boycott of Israeli universities The text of the resolution describes Israeli higher education institutions as "a party to Israeli state policies that violate human rights and negatively impact the working conditions of Palestinian scholars and students."
At issue in this case was the plaintiffs’ claim, as Judge Contreras put it, that the “defendants coopted an apolitical educational organization and, against its members' wishes, turned that organization into a mouthpiece of the Israel boycott movement.”
The plaintiffs claimed that the December 2013 membership vote in which ASA members voted by a large margin in favor of the resolution endorsing the Israel boycott was conducted unlawfully. They alleged that ASA leaders misrepresented their intentions to the membership and manipulated the association's voting procedures for their own interest, including by freezing membership rolls prior to the vote in an alleged attempt to prevent boycott opponents from rejoining and voting.
They alleged that after the resolution passed, ASA leaders improperly spent association resources to defend and promote it, including by accessing the ASA’s trust fund to pay for resolution-related insurance, public relations and legal fees. The plaintiffs also claimed that ASA raised membership dues from $120 to $275 to offset expenses related to the resolution.
Judge Contreras ruled in dismissing the case that even “if Defendants misappropriated every dollar that Plaintiffs contributed to ASA in annual dues, it would take each Plaintiff 625 years to reach $75,000 in damages,” the threshold necessary for the federal court to have jurisdiction.
In a statement, three lawyers for the members who sued the ASA said they "fully intend to go forward with this lawsuit, whether in federal court, should we choose to appeal the amount in controversy dismissal, or in state court, where there is no amount in controversy requirement."
"Our clients are four esteemed professors of American Studies," said the statement from the three lawyers for the plaintiffs, which was released by the Louis D. Brandeis Center for Human Rights Under Law, an advocacy organization focused on anti-Semitic and anti-Israel activity on university campuses. "They brought this case because they believe that the ASA’s academic boycott of Israel violates cherished principles of academic freedom. They opposed the academic boycott on the same grounds as the American Association of University Professors, the presidents of dozens of universities, numerous former presidents of the ASA, and many, many others. They also believe that the individual defendants violated democratic principles and the ASA Constitution and Bylaws in the adoption of the academic boycott."
Liz Jackson, a senior staff attorney for the legal advocacy organization Palestine Legal, which provided advice to ASA in the lead-up to and aftermath of the resolution vote, said the decision was "a significant victory for academic associations, for professors who want to stand up for Palestinian rights. There has been so much fear and intimidation kind of kicked up around this case, and the Brandeis Center was very clear about their intent to deter other groups of professors from taking a stand in support of boycotts for Palestinian rights. Professors should take heart that they have a right to boycott and they have a protected right to stand up for Palestinian human rights. There will be more intimidation, there will be more lawsuits and professors should take heart that they will fail."
John F. Stephens, the executive director of the ASA, said, "We had a great day in court and we look forward to continuing with our mission of interdisciplinary and critical studies of the U.S."
Other U.S.-based scholarly associations that have formally supported 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.
Some larger associations have rejected the boycott. The American Anthropological Association narrowly voted down a pro-boycott resolution in 2016, and the Modern Language Association's Delegate Assembly in January of 2017 rejected a pro-boycott measure in favor of another measure, subsequently ratified by the membership, calling on the association to refrain from a resolution endorsing the boycott of Israeli universities on the grounds that such an endorsement "contradicts the MLA’s purpose to promote teaching and research on language and literature."
The lawsuit against the ASA was originally filed in spring of 2016. One of the original lawyers for the plaintiffs was Kenneth L. Marcus, the former head of the Brandeis Center who has since been appointed as assistant secretary of civil rights for the U.S. Department of Education. Opponents of Marcus's nomination argued that his appointment as the department's chief civil rights enforcer could have a chilling effect on speech and activism critical of Israel on college campuses.