In a mixed opinion, a federal judge ruled Friday to dismiss a claim that the American Studies Association operated outside the scope of its bylaws in endorsing a boycott of Israeli academic institutions, while allowing the plaintiffs’ claims of corporate waste, breach of contract and violation of the D.C. Nonprofit Corporation Act on the part of the ASA to move forward.
Judge Rudolph Contreras’s ruling came in a lawsuit against the association and six of its former leaders filed by a group of American studies professors who challenged the organization’s endorsement of the academic boycott of Israel in December 2013. In the ASA’s favor, Judge Contreras dismissed the plaintiffs’ argument that endorsing the boycott was an ultra vires action -- that is, it was outside the scope and purpose of the organization as outlined in its constitution and bylaws.
“The boycott resolution was, at the very least, reasonably in furtherance of the ASA’s organic documents and Articles of Incorporation, which provide that the ASA was organized exclusively for educational and academic purposes, and that the object of the ASA is the promotion of American culture through, inter alia, ‘the encouragement of research, teaching, publication, [and the] strengthening [of] relations among persons and institutions in this country and abroad devoted to such studies,’” Contreras’s opinion states. “The boycott resolution was aimed at promoting academic freedom abroad, solidarity with foreign institutions and scholars, and encouraging an array of studies at foreign institutions.”
On the other hand, Judge Contreras found that the plaintiffs presented a “plausible case for breach of contract” in regard to their allegations that the ASA failed to follow its own rules in voting on the boycott resolution. The judge also rejected ASA’s argument that a ruling in favor of the plaintiffs would violate the First Amendment rights of the defendants, finding that the individual defendants had “voluntarily assumed roles where their right to expression would be limited by bylaws, the common law and statute. Because [the] defendants voluntarily assented to these laws and the ASA’s constitution and bylaws, the court’s interference with speech is passive and incidental to enforcement of a contract.”
“This is important because it shows that the First Amendment can be used as a pretext for associations that are violating their own internal principles and the rights of their members with these boycotts,” said Kenneth L. Marcus, one of the lawyers for the plaintiffs and the president of the Louis D. Brandeis Center for Human Rights Under Law. Marcus heralded the judge’s opinion as an “important victory.”
“You may recall that our opponents had derogated our complaint as being meritless and a violation of the First Amendment. We feel a great vindication by this court order demonstrating that the case does in fact have merit and we will be able to move forward,” Marcus said.
"The parts that are left, as I understand from reading what the court wrote, have to do with our bylaws and how they were interpreted at the moment in 2013," said Robert Warrior, the president of ASA and the Hall Distinguished Professor of American Literature and Culture at the University of Kansas. "That seems to me that we’re in a different kind of argument than if the ultra vires argument had been found to be a valid one to move forward with."
Warrior described the ultra vires claim as “an argument that tends to shut down discussion over controversial issues.”