Court battle over academic boycott of Israel
The plaintiffs argue that the boycott adopted by ASA in December 2013 was a concerted effort by a small number of Boycott, Divestment and Sanctions or BDS activists, including founding members of the US Campaign for the Academic and Cultural Boycott of Israel, who used their leadership positions in ASA to make anti-Israel activism the central focus of the association.
A resolution endorsing the academic boycott was passed by the ASA’s National Council unanimously and was subsequently passed by members in an online vote. Of 1,252 members who voted, 66.05% were in favour.
The plaintiffs allege that the voting process did not conform to the association’s byelaws and required a two-thirds majority of those present, whereas the vote fell just shy of that figure.
The four plaintiffs are American studies professors Simon Bronner, Michael Rockland, Michael Barton, and Charles Kupfer. Two are recipients of the ASA award for outstanding abilities and achievement. One is a founding member of an American Studies department and another is a member of ASA’s governing council and the editor of the Encyclopedia of American Studies.
“Until a handful of zealots appropriated our learned society, the ASA was the leading organisation for the study of American culture,” said Professor Bronner. “Yet in 2013, a handful of anti-Israel BDS activists aggressively steered the ASA to an organisation of social change pushing a narrow political agenda.”
The plaintiffs argue that the ASA’s stated mission – the organisation is devoted to the interdisciplinary study of American culture and history – has nothing to do with boycotting a foreign nation and thus alleges that the boycott's adoption violates the law that governs non-profit corporations, the DC Non-Profit Corporation Act.
University of California, Berkeley Law School Professor Steven Davidoff Solomon, who is a corporate law expert and served as an expert adviser to the litigation group representing the plaintiffs, said: “This appears to be a clear example of a small group misappropriating assets raised for an agreed upon purpose and illegally using the organisation to advance a completely separate and personal agenda.”
According to Inside Higher Ed, on Thursday the ASA issued a written statement in response to the lawsuit. It said: “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 organisation.”
Earlier, on Wednesday, Palestine Legal – an independent organisation protecting the civil rights of people “who speak out for Palestinian freedom” in the US – issued a statement saying: “The ASA’s academic boycott resolution is aimed at challenging US support for a system that denies academic freedom to Palestinian students and scholars. As such, the resolution falls squarely within the educational purposes for which ASA was established.
“Plaintiffs’ theory that the ‘ultra vires’ doctrine – a corporate law theory – could limit the ASA’s First Amendment right to endorse the academic boycott is meritless and will likely be thrown out by the court.”
It added that “meritless legal threats are a tactic used to chill speech supporting Palestinian rights”. These had been documented in the report, The Palestine Exception to Free Speech: A movement under attack in the US.
“Such threats are being used to intimidate advocates for Palestinian rights, and deflect the conversation away from Israeli human rights violations,” Palestine Legal’s statement said.
The lawsuit comes against a backdrop of an increasingly visible boycott, divestment and sanctions movement in the United States – and other countries – including among academic circles.
According to Inside Higher Ed, the American Anthropological Association is currently voting on a proposed resolution to boycott Israeli academic institutions. Other smaller scholarly organisations 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.
Kenneth L Marcus, president of the Louis D Brandeis Center for Human Rights under Law – a non-profit organization dedicated to protecting the civil and human rights of the Jewish people – and one of the attorneys on the ASA case, said: “Academic associations should think twice before abusing their missions and betraying the lawful purposes for which they were established in favour of the personal political agendas of their noisiest and most politicised activist members.”
In December 2014, the council of the Royal Institute of British Architects, or RIBA, overturned its own decision the previous March to suspend the Israeli Association of United Architects, after deciding that the suspension was beyond the powers of the RIBA council and did not further the charitable objectives of RIBA. RIBA President Stephen Hodder conceded that the fallout from the original decision had damaged the organisation’s reputation – and its finances.