Israel and its surrogates suffered a significant defeat last week, when a federal court in Washington, DC, threw out a key claim in a lawsuit against the American Studies Association for its resolution to boycott Israeli academic institutions.
The lawsuit, filed by current and former members of the ASA last year, argued that the 2013 resolution was a breach of contract because it did not fall within the scope of the group’s mission.
The complaint appeared to be a test of a new lawfare tactic that accuses an entity of acting beyond its chartered purpose – a claim that it is acting ultra vires, in legal language.
Anti-Palestinian activists hoped the strategy could be used to thwart other academic groups adopting boycott resolutions.
But US District Judge Rudolph Contreras dismissed the claim on 31 March, writing that the boycott resolution was enacted “in furtherance of the ASA’s purpose of advancing education and the promotion of the study of American culture.”
“The boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians,” the judge wrote. “Thus, it was not contrary to the ASA’s express purposes.”
The judge is allowing other parts of the lawsuit to proceed, among them accusations of “breach of contract” and “corporate waste.” The next phase is discovery, which involves the parties disclosing information and evidence to each other.
Nevertheless, Palestine Legal says the ruling is a significant victory.
“Israel advocacy groups are throwing every legal argument at this movement to see what will stick, and nothing’s sticking,” Sainath said.
“We’re encouraged that the court will ultimately see this lawsuit as an attempt by powerful actors to silence views they don’t like.”
According to Palestine Legal, the ASA was initially threatened with legal action on the basis of “discrimination and anti-Semitism” if it did not repeal its academic boycott resolution.
But that route was abandoned in favor of the ultra vires claim, which has now been thrown out.
According to Palestine Legal, that tactic was first developed in 2015 by Northwestern University law professor Eugene Kontorovich, a vocal supporter of Israel’s West Bank settlements who reportedly lives in one such colony.
Kontorovich, who served as an adviser to the plaintiffs, is one of several prominent anti-boycott advocates who helped advance the case against the ASA. He is also a fellow of the Jerusalem Center for Public Affairs, a right-wing Israeli think tank governed by a who’s who of Israeli political and military figures.
Representing the four plaintiffs is Jerome Marcus, a senior fellow at the Kohelet Policy Forum, an Israeli think tank with a stated purpose “to anchor the Jewish People’s inherent right to an independent sovereign state in Israeli law and policy.”
Kenneth Marcus, the head of the Israel advocacy group the Louis Brandeis Center for Human Rights, was also listed as an attorney for the plaintiffs.
The Israeli government has given specific backing to the tactic of using lawsuits in an effort to thwart the boycott, divestment and sanctions movement.
The lawsuit argues that as a result of the resolution, the ASA has suffered a decline in membership and lost revenue from membership dues.
But the ASA says that its membership has actually grown and it has received more grants and contributions following the adoption of the the boycott resolution.
A total of $49,000 was donated specifically in support of the resolution, according to ASA executive director John Stephens, the judge noted.
But Stephens testified that the ASA has had to spend a considerable portion of those funds to defend itself against the backlash to the resolution.
ASA has spent $20,000 on a media strategist and over $15,000 on boycott-related expenses during annual meetings, according to Stephens.
The organization has not lost any money as a result of the resolution, according to Stephens, but made a small net gain.
But in allowing the case to proceed, the judge says those figures do not discount that the organization could financially suffer in the long run.