“Frivolous” lawsuit aims to reverse ASA’s Israel boycott

Charlotte Silver Activism and BDS Beat 24 April 2016

Several current and former members of the American Studies Association are suing the academic organization, alleging that its resolution to boycott Israeli academic institutions is a breach of contract because it does not fall within the group’s mission.

But supporters and opponents of the boycott are calling the lawsuit an attempt to shut down free speech.

Filed in federal court in Washington, DC, on 20 April, the complaint also names several individuals as defendants: Lisa Duggan, Curtis Marez, Avery Gordon, Nerferti Tadiar, Sunaina Maira and Chandan Reddy.

According to the complaint, these academics at institutions across the United States spearheaded the boycott initiative. Duggan and Marez are both past presidents of the ASA.

Plaintiffs are Simon Bronner, Michael Rockland, Charles Kupfer and Michael Barton.

This is the first time legal proceedings have been taken up against any of the several academic organizations which have since endorsed the boycott of Israeli academic institutions deemed complicit in abuses of Palestinian rights.

The American Anthropological Association is currently voting on an academic boycott resolution.

Calling the defendants “insurgents” within the ASA, the lawsuit asserts that the academic boycott resolution was a result of a “a small group” and their “concerted effort to subvert and change the ASA’s purpose, converting it into a political advocacy organization with a particular focus on what they characterize as ‘social change’ that is to be sought both within and outside of America.”

Democratic process

In December 2013, the ASA became the second scholarly association to endorse the academic boycott of Israel, stipulating that the ASA will not formally collaborate with Israeli academic institutions or scholars who are serving as representatives of those institutions or on behalf of the Israeli government.

The resolution was proposed by the executive committee of the association and written in coordination with its national council before it was put to the general membership in a referendum.

According to the ASA, the resolution passed with 66.05 percent of the 1,252 votes cast in “an election that attracted the largest number of participants in the organization’s history.”

The lawsuit claims this does not meet the requisite two-thirds majority threshold for a resolution to be adopted.

The ASA is currently consulting its attorneys, but released a brief statement on Wednesday saying it respects the concerns of the plaintiffs and is “open to proposals addressing the complaint” using the ASA’s internal democratic processes.

“The resolution that is being challenged was passed by a democratic process,” ASA executive director John Stephens told The Electronic Intifada.

“The plaintiffs are welcome to engage in the same democratic process. With a demonstration of support, I think that the board would have to discuss it and vote on it,” Stephens added.

Stephens said that in the two years since the resolution was passed, there have been no attempts to overturn it or pass an anti-boycott resolution.

The complaint states that it would be “futile” to initiate any process internally because the majority of the current national council, which is democratically elected by the general membership, has endorsed the boycott of Israel.

Throughout the legal complaint, plaintiffs allege a minority of members have transformed the ASA from an academic association into an organization for “social justice.”

Stephens notes that the ASA has for many years taken stands on issues of social justice.

For example, in 2006, the ASA passed a resolution to end the US war and military presence in Iraq.

Last March, 97 percent of the membership approved an addition to the organization’s bylaws to include a purpose to promote “meaningful dialogue about the United States across the globe by supporting scholars and scholarship committed to original research, innovative and effective teaching, critical thinking and public discussion and debate.”

A new way to stifle expression

The complaint argues against the ASA boycott under a doctrine called ultra vires, which limits a corporation from acting beyond its chartered purpose.

Responding to the lawsuit, Palestine Legal said that the 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.”

“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,” the legal defense group added.

Palestine Legal noted that Israel advocacy groups had previously threatened to take legal action against ASA, “alleging discrimination and anti-Semitism,” unless the organization would “cancel its academic boycott resolution.” But, Palestinian Legal noted, the current lawsuit “abandons these theories.”

The complaint appears to be part of a campaign of lawfare – the use of litigation to try to sabotage the Palestinian-led boycott, divestment and sanctions (BDS) movement – which has been frequently backed by groups linked to the Israeli government.

The Israeli government has also “quietly” supported efforts around the world to legislate against BDS.

Steven Lubet, a law professor at Northwestern University and an avowed opponent of boycotting Israel, has also argued against the use of ultra vires to combat boycott resolutions in academic associations.

In response to an op-ed published in the Wall Street Journal in December 2015 that outlines how to combat academic boycotts through litigation, Lubet asserts that such lawsuits “would do more harm than good.”

“A boycott is a form of expressive conduct,” Lubet argues. “Suing to enjoin a boycott would therefore be seen as limiting speech rights of the association.”

One of the authors of the Wall Street Journal article, Eugene Kontorovich, served as an expert advisor to the plaintiffs.

Plaintiffs are being represented by Jerome Marcus, who is 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.”

Another attorney for the plaintiffs listed in the complaint is Kenneth Marcus, the head of the Israel advocacy group the Louis Brandeis Center for Human Rights.

Marcus led a failed effort to use Title VI of the 1964 Civil Rights Act to instigate a federal crackdown on Palestine solidarity activism at several universities.

John K. Wilson, an editor of Academe Blog, a publication of the American Association of University Professors, wrote that the lawsuit is “frivolous litigation designed for the sole purpose of getting the government to suppress the freedom of speech of a private organization.”

Wilson himself believes that “all boycotts are stupid and worse than useless,” and the AAUP has also stated that it opposes academic boycotts.

But Wilson is absolutely clear about the merits of the lawsuit against the ASA: “It should be condemned by everyone on all sides of the BDS issue, and anyone who believes in liberty.”

Editor’s note: Due to an editing error, an earlier version of this article misstated that ASA is represented by Palestine Legal. This is not the case.

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Comments

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Peter Hindrup replied on

If this goes to court immediately press for funds to be paid into the court should the applicants fail.
Here in Sydney, Australia, an action against Profesor Jake Lynch of the Sydney University was abandoned upon the court ordering funds to be deposited with the court.
Like Israel, they are all mouth and threats. They do not face up to equal odds under any circumstances.

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tiger moto replied on

As the world changes and power is shifting from West to East Israel and its Western supporters are going to find it hard to defend the genocidal policies against the Palestinians.
More and more people know what is going on in the occupied territories.The best strategy against the Israeli's is to attack from all fronts i.e. media,tv,internet,books,demo's,facebook etc
i regularly battle on the internet pro-zionist's,they are usually indoctrinated into saying certain things,most know very little about the truth about their country and find it hard to face truthfull facts

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tom hall replied on

Great link. Steven Salaita was fired over a few tweets, while just up the road this guy has tenure, despite being an active participant in war crimes. How does a law school justify his presence?

Incidentally, his faculty profile records that "he is working on a book, Justice at Sea: Piracy and the Limits of International Criminal Law..." I wonder, will there be a chapter on the Mavi Marmara? Or the Siege of Gaza?

Charlotte Silver

Charlotte Silver's picture

Charlotte Silver is an independent journalist and regular writer for The Electronic Intifada. She is based in Oakland, California and has reported from Palestine since 2010. Follow her on Twitter @CharESilver.