Last Wednesday, Arkansas State Governor William Hutchinson signed a law, Act 710, to prohibit Arkansas agencies from investing in or contracting with companies that boycott Israel. Act 710, previously SB 513, was passed by the Arkansas state legislature on March 22nd. SB 513 was introduced by Sen. Bart Hester to the state Senate, where it passed with a vote of 29-0 and one abstention, and was sent to the House in February. There, the bipartisan measure passed on its third reading by a vote of 69 to 3. The new act ensures that Arkansas taxpayer funds will not finance the anti-Semitic tactics of the BDS movement. Boycotts have “become a tool of economic warfare” in Arizona that “threatens the sovereignty and security of key allies and trade partners,” namely, the State of Israel. Act 710 maintains that the strategic refusal to engage in commercial relations with Israeli trade partners is discriminatory and unsound. Arkansas will now “implement Congress’s announced policy of ‘examining a company’s promotion or compliance with unsanctioned boycotts, divestment from, or sanctions against Israel as part of its consideration in awarding grants and contracts.’” The legislation guarantees state divestment of companies that “support or promote actions to boycott, divest from, or sanction Israel,” reaffirming the strong relationship between Arkansas and Israel. Act 710 makes Arkansas the 19th state to enact a binding anti-BDS law. At the end of last year, Michigan and Ohio passed similar legislation, following measures in Pennsylvania in November, California in September, New Jersey in August, and Rhode Island in June. Maryland and Texas are currently debating anti-BDS laws in their respective legislatures. The complete text of Act 710 can be found here.
The Campus of East Carolina University In March, the Student Government Association (SGA) of East Carolina University (ECU), located in Greenville, North Carolina, voted to “take a stand with the Jewish community at [ECU].” The SGA passed a bill which seeks, in the words of it sponsors, to “[define] what anti-Semitism is” and to bring awareness to “what’s going on around the world” in regards to anti-Semitism. The bill defines anti-Semitism as the “bigoted targeting of a historically oppressed minority” and notes that this issue “should be taken as seriously as bigotry against all other historically oppressed minorities.” The bill also utilizes the U.S. State Department’s definition of anti-Semitism, the same definition used in the Anti-Semitism Awareness Act bill, which unanimously passed the U.S. Senate in December. The SGA also stated their intentions to show its support and act as allies to student groups including East Carolina Hillel and Pirates for Israel, “to help foster a better understanding of Judaism and American-Jewish identity.” In order to meet this goal, the SGA plans to “actively work with Jewish student organizations and maintain an open dialogue with leaders of the Jewish community at ECU about issues important to the ECU community at large.” ECU has largely been spared anti-Semitic incidents on their campus, but there has been at least one instance of anti-Semitic graffiti found on campus. Votes of this nature are not limited to universities within the United States. Ryerson University, located in Toronto, also recently saw the Ryerson Student Union adopt a definition of anti-Semitism, as found in the “Ottawa Protocol.” According to the Centre for Israel and Jewish affairs, a Canadian Jewish advocacy organization, Ryerson is the first Canadian university to adopt the Ottawa Protocol, a definition of anti-Semitism similar to the definition used by the U.S. State Department. This new definition comes after reports that the head of a university program “resigned over anti-Semitic tweets.” This effort at Ryerson, along with the similar effort at ECU, show the commitments of these universities to challenging the toxic atmosphere spread by BDS and other sources of anti-Semitism. While ECU may not have had many notable instances of BDS or anti-Semitic activity, several of its collegiate neighbors, such Duke and UNC, certainly have. Duke and UNC have both seen “Apartheid Week” events hosted on their campuses, and both also have active chapters of Students for Justice in Palestine. The student government of East Carolina University, meanwhile, is walking in stride with the legislature of North Carolina, it is addressing potential campus anti-Semitism before it occurs. The North Carolina legislature recently saw the N.C. House pass H.B. 161, an anti-BDS and pro-Israel bill. The swift passage of H.B. 161 coincides with the recent passage of a similar bill in the South Carolina House, as well as the upcoming hearings for another similar piece of legislation in the Tennessee Senate. The actions taken by ECU show its commitment to fighting for minority rights, rights that many of the states are also taking a proactive approach in defending.
Sam Orez Cutting Edge News April 3, 2017 The United States District Court for the District of Columbia (D.C.) has rejected efforts by the American Studies Association (ASA) to suppress a lawsuit filed against the Association by its own members challenging the ASA’s adoption of a boycott of all Israeli academic institutions. The judge ruled in favor of the ASA professors in four out of six claims, and authorized the case to go forward. According to the plaintiffs, the boycott adopted by ASA in December 2013 was a concerted effort by a small number of BDS activists, including founding members of the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI), who abused their leadership positions in ASA to make anti-Israel activism the central focus of the Association. They charge that ASA’s activism breached its contractual duty to its members, and that the boycott was pushed through in violation of the ASA’s own rules governing how votes should be conducted. “The Association suffered and its members suffered when a handful of zealots decided to push a personal, political agenda against one country,” stated Jerome Marcus, an attorney for the plaintiffs. “We are very pleased that the D.C. Court recognizes that the law is violated by such a severe abuse of power and by the misuse of Association revenue, resources and membership dues.” “This is an important victory, not only for our clients, but for everyone who is concerned about the anti-Semitic BDS movement and its deleterious impact on academic institutions,” stated Kenneth L. Marcus, president of the Louis D. Brandeis Center for Human Rights Under Law, which also represents the plaintiffs. “This decision will send a clear message about the need to resist unlawful BDS resolutions.” After the lawsuit was filed in April 2016, the ASA called on the D.C. Court to dismiss all charges. However, late Friday, the court ruled against the defendant’s argument for dismissal, and the case will move forward. Specifically, the court ruled in favor of considering the plaintiff’s claims for waste, breach of contract and violation of the D.C. Nonprofit Corporation Act. The court recognized that the ASA may have misused members’ dues and Association resources, and failed to enact the resolution in accordance with ASA bylaws that require affirmative votes of two-thirds of voting members on the first full day of the meeting. “The circumstances of the ASA’s purported adoption of an anti-Israel BDS resolution are deeply shocking,” stated Harvard University Law Professor Jesse Fried who served as an expert adviser to the litigation team representing the plaintiffs. “The purpose of the ASA, like other academic organizations is to promote scholarship, teaching, and the exchange of ideas. A handful of insiders at the ASA decided to use their power and the ASA’s resources—that is, other people’s money—to flip this purpose on its head and turn the ASA into a vehicle for selectively impeding scholarship, teaching, and the exchange of ideas. The insiders then claimed victory even though fewer than 20% of members expressly approved the BDS resolution, in a vote marred by alleged manipulation and procedural irregularities. I applaud the plaintiffs for bringing this much-needed lawsuit to restore the ASA to its proper purpose, and am extremely pleased that Judge Rudolph Contreras is letting plaintiffs proceed with most of their claims.” In addition, the court flat out rejected ASA’s attempt to hide behind the First Amendment, finding a favorable ruling would not infringe on First Amendment rights. Specifically, the court agreed with the plaintiffs’ argument that defendants “voluntarily assumed certain obligations toward the ASA when they took on leadership positions within the organization, and they violated those obligations through their roles in passage of the boycott resolution.” The court went on to say that “Individual Defendants voluntarily assumed roles where their right to expression would be limited by bylaws, the common law and statute.” The case will now move to the discovery phase of the trial. “The D.C. Court held for a principle that is basic corporate law,” stated University of California Berkeley Law School Professor Steven Davidoff Solomon, an expert adviser to the plaintiffs. “The First Amendment does not give license to override a company’s organizational documents agreed to by its members. Instead, like an organization, a non-profit is a creature of its organizational documents and must follow them in all it does.” The judge did dismiss the plaintiffs’ ultra vires claim which charged that the boycott of another country is outside the scope of ASA’s charter. The plaintiffs are evaluating the Court’s decision with respect to this aspect of their claims. “While we are disappointed with the court on the ultra vires claim, that part of the lawsuit is not necessary in demonstrating that ASA’s boycott is unquestionably unlawful,” stated Kenneth L. Marcus. 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 a respected American Studies department and another is a member of ASA’s governing council and the editor of the Encyclopedia of American Studies. After numerous unsuccessful attempts since 2013 to address the matter within the Association, the professors filed this suit as a last resort to return the ASA to the academically-focused organization it had been for 60 years. The lawsuit alleges ASA is in violation of the D.C. Non-Profit Corporation Act. In addition to violating DC law, the lawsuit reveals the defendants attempted to prevent informed discourse. In fact, no research performed with scholarly vigor was presented and the ASA refused to circulate or post to the ASA’s website several letters opposing the resolution, including one signed by approximately 70 ASA members and another opposing the resolution from eight former ASA presidents. “This boycott has nothing to do with human rights: the ASA has not even as much as considered boycotting any country for their human rights record. That they only do for the Jewish State,” stated Northwestern Pritzker Law School Professor Eugene Kontorovich. Since the filing of the ASA lawsuit, the American Anthropological Association and the Modern Language Association have both backed down from passing boycott measures. “Today’s victory is much bigger than merely the ASA,” added Kenneth L. Marcus. “When the MLA attempted a boycott vote, this case was cited, by those on both sides of the issue, as one of the reasons the resolution was defeated. Academic activists are beginning to think twice before adopting anti-Semitic and unlawful policies that undermine the pillars of higher education.” Original Article
William A. Jacobson Legal Insurrection April 3, 2017 The American Studies Association (ASA), which is run by anti-Israel activists from academia, was the first (and only) significant-sized American faculty association to adopt the academic boycott of Israel. A few very small groups also have adopted the boycott, but attempts to reach larger organizations, such as the Modern Language Association, American Anthropological Association and American Historical Association, have failed. Legal Insurrection was at the forefront of covering ASA’s December 2013 vote and the reaction, including the rejection of the boycott by over 250 university presidents and numerous major university organizations. In January 2014, I filed a Whistleblower Complaint with the IRS, Anti-Israel academic boycott group’s tax-exempt status challenged. I have not heard anything about the status of the complaint, and there is no IRS procedure for me to check the status. There was another significant legal development in April 2016, American Studies Association and its leaders sued over Israel boycott: A lawsuit just filed by several distinguished members challenges the ASA boycott, seeks damages against individual officers and National Council members who advanced the boycott, as well as injunctive relief, arguing that ASA exceeded its purpose defined under its constitution and bylaws…. The lawsuit could serve as a model for litigation against other faculty organizations which have been hijacked by anti-Israel activists. The Louis D. Brandeis Center, which served as co-counsel in the case, has a resource page with case documents. A judge just decided ASA’s motion to dismiss, granting it in part and denying it in part. The Opinion is embedded in full at bottom of this post. (pdf.) What that means is that several of the key claims will go forward to the next phase, discovery. Eugene Kontorovich, a law professor at Northwestern University Law School, who has advised on the lawsuit for the plaintiffs, describes the decision at Volokh Conspiracy, Federal judge advances lawsuit challenging academic group’s Israel boycott: A federal district court just issued its first ruling in Bronner v. Duggan, a case brought by several prominent members of the American Studies Association against the group and its officers. The plaintiffs contend that the ASA’s adoption of a boycott of Israel violated its own rules and procedures, as well as general laws regulating corporations and nonprofits. I noted the case in these columns when it was filed a year ago, and helped advise the plaintiffs’ legal team. Back then, Palestine Legal — an activist group that provided legal advice to the ASA during its adoption of the boycott — claimed the lawsuit was designed to “chill speech supporting Palestinian rights,” and predicted the lawsuit would be would “thrown out by the court.” Instead, a Memorandum Opinion by Judge Rudolph Contreras of the U.S. District Court for the District of Columbia denied the defendants’ demands for dismissal of most of the plaintiffs’ causes of action (waste, breach of contract and violation of the D.C. Nonprofit Corporation Act). The court rejected what was perhaps the defendants’ most vocal contention, which invoked the First Amendment. They claimed the group had a broad “right to engage in a boycott,” and that enforcing the group’s own associations rules, or general provisions of corporate law, would infringe on their free speech. The judge noted the obvious — the dispute does not involve any state action, but rather members of an organization seeking to enforce the group’s own private rules and arrangements. Judicial enforcement of contractual arrangements does not constitute state action, and the defendants were surely unwise to rely on famous outlier cases such as Shelley v. Kraemer. Moreover, the fact that complying with the requirements of the D.C. nonprofit code might make it harder for the association to pass boycotts does not make it a First Amendment issue. The ASA case will now proceed to discovery, which may shed more light on the full circumstances and considerations that lead a group of academics to adopt a unique boycott of a foreign country’s academic institutions. That last point really is critical. The case will go to discovery, which means that the ASA and many of its officers and Board members will have to produce emails and other electronic evidence. The lawsuit itself names numerous anti-Israel faculty who served in positions of authority at ASA, including Lisa Duggan, an NYU professor who uses her position to push BDS, and Curtis Marez, the UC – San Diego professor who infamously justified singling out Israel because “one has to start somewhere” (emphasis added): The American Studies Association has never before called for an academic boycott of any nation’s universities, said Curtis Marez, the group’s president and an associate professor of ethnic studies at the University of California, San Diego. He did not dispute that many nations, including many of Israel’s neighbors, are generally judged to have human rights records that are worse than Israel’s, or comparable, but he said, “one has to start somewhere.” Their interactions, and the identifies of and communications with others now will be subject to the judicial process. The Brandeis Center issued a statement that reads, in part: “This is an important victory, not only for our clients, but for everyone who is concerned about the anti-Semitic BDS movement and its deleterious impact on academic institutions,” stated Kenneth L. Marcus, president of the Louis D. Brandeis Center for Human Rights Under Law, which also represents the plaintiffs. “This decision will send a clear message about the need to resist unlawful BDS resolutions.” …. the court flat out rejected ASA’s attempt to hide behind the First Amendment, finding a favorable ruling would not infringe on First Amendment rights. Specifically, the court agreed with the plaintiffs’ argument that defendants “voluntarily assumed certain obligations toward the ASA when they took on leadership positions within the organization, and they violated those obligations through their roles in passage of the boycott resolution.” The court went on to say that “Individual Defendants voluntarily assumed roles where their right to expression would be limited by bylaws, the common law and statute.” The case will now move to the discovery phase of the trial. “The D.C. Court held for a principle that is basic corporate law,” stated University of California Berkeley Law School Professor Steven Davidoff Solomon, an expert adviser to the plaintiffs. “The First Amendment does not give license to override a company’s organizational documents agreed to by its members. Instead, like an organization, a non-profit is a creature of its organizational documents and must follow them in all it does.” The judge did dismiss the plaintiffs’ ultra vires claim which charged that the boycott of another country is outside the scope of ASA’s charter. The plaintiffs are evaluating the Court’s decision with respect to this aspect of their claims. “While we are disappointed with the court on the ultra vires claim, that part of the lawsuit is not necessary in demonstrating that ASA’s boycott is unquestionably unlawful,” stated Kenneth L. Marcus. This is a very big development. Expect future posts on the lawsuit. Original Article
Eugene Kontorovich Washington Post April 3, 2017 A federal district court just issued its first ruling in Bronner v. Duggan, a case brought by several prominent members of the American Studies Association against the group and its officers. The plaintiffs contend that the ASA’s adoption of a boycott of Israel violated its own rules and procedures, as well as general laws regulating corporations and nonprofits. I noted the case in these columns when it was filed a year ago, and helped advise the plaintiffs’ legal team. Back then, Palestine Legal — an activist group that provided legal advice to the ASA during its adoption of the boycott — claimed the lawsuit was designed to “chill speech supporting Palestinian rights,” and predicted the lawsuit would be would “thrown out by the court.” Instead, a Memorandum Opinion by Judge Rudolph Contreras of the U.S. District Court for the District of Columbia denied the defendants’ demands for dismissal of most of the plaintiffs’ causes of action (waste, breach of contract and violation of the D.C. Nonprofit Corporation Act). The court rejected what was perhaps the defendants’ most vocal contention, which invoked the First Amendment. They claimed the group had a broad “right to engage in a boycott,” and that enforcing the group’s own associations rules, or general provisions of corporate law, would infringe on their free speech. The judge noted the obvious — the dispute does not involve any state action, but rather members of an organization seeking to enforce the group’s own private rules and arrangements. Judicial enforcement of contractual arrangements does not constitute state action, and the defendants were surely unwise to rely on famous outlier cases such as Shelley v. Kraemer. Moreover, the fact that complying with the requirements of the D.C. nonprofit code might make it harder for the association to pass boycotts does not make it a First Amendment issue. The ASA case will now proceed to discovery, which may shed more light on the full circumstances and considerations that lead a group of academics to adopt a unique boycott of a foreign country’s academic institutions. Original Article
Download PDF Washington, D.C., April 3 – The United States District Court for the District of Columbia (D.C.) has rejected efforts by the American Studies Association (ASA) to suppress a lawsuit filed against the Association by its own members challenging the ASA’s adoption of a boycott of all Israeli academic institutions. The judge ruled in favor of the ASA professors in four out of six claims, and authorized the case to go forward. According to the plaintiffs, the boycott adopted by ASA in December 2013 was a concerted effort by a small number of BDS activists, including founding members of the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI), who abused their leadership positions in ASA to make anti-Israel activism the central focus of the Association. They charge that ASA’s activism breached its contractual duty to its members, and that the boycott was pushed through in violation of the ASA’s own rules governing how votes should be conducted. “The Association suffered and its members suffered when a handful of zealots decided to push a personal, political agenda against one country,” stated Jerome Marcus, an attorney for the plaintiffs. “We are very pleased that the D.C. Court recognizes that the law is violated by such a severe abuse of power and by the misuse of Association revenue, resources and membership dues.” “This is an important victory, not only for our clients, but for everyone who is concerned about the anti-Semitic BDS movement and its deleterious impact on academic institutions,” stated Kenneth L. Marcus, president of the Louis D. Brandeis Center for Human Rights Under Law, which also represents the plaintiffs. “This decision will send a clear message about the need to resist unlawful BDS resolutions.” After the lawsuit was filed in April 2016, the ASA called on the D.C. Court to dismiss all charges. However, late Friday, the court ruled against the defendant’s argument for dismissal, and the case will move forward. Specifically, the court ruled in favor of considering the plaintiff’s claims for waste, breach of contract and violation of the D.C. Nonprofit Corporation Act. The court recognized that the ASA may have misused members’ dues and Association resources, and failed to enact the resolution in accordance with ASA bylaws that require affirmative votes of two-thirds of voting members on the first full day of the meeting. “The circumstances of the ASA’s purported adoption of an anti-Israel BDS resolution are deeply shocking,” stated Harvard University Law Professor Jesse Fried who served as an expert adviser to the litigation team representing the plaintiffs. “The purpose of the ASA, like other academic organizations is to promote scholarship, teaching, and the exchange of ideas. A handful of insiders at the ASA decided to use their power and the ASA’s resources—that is, other people’s money—to flip this purpose on its head and turn the ASA into a vehicle for selectively impeding scholarship, teaching, and the exchange of ideas. The insiders then claimed victory even though fewer than 20% of members expressly approved the BDS resolution, in a vote marred by alleged manipulation and procedural irregularities. I applaud the plaintiffs for bringing this much-needed lawsuit to restore the ASA to its proper purpose, and am extremely pleased that Judge Rudolph Contreras is letting plaintiffs proceed with most of their claims.” In addition, the court flat out rejected ASA’s attempt to hide behind the First Amendment, finding a favorable ruling would not infringe on First Amendment rights. Specifically, the court agreed with the plaintiffs’ argument that defendants “voluntarily assumed certain obligations toward the ASA when they took on leadership positions within the organization, and they violated those obligations through their roles in passage of the boycott resolution.” The court went on to say that “Individual Defendants voluntarily assumed roles where their right to expression would be limited by bylaws, the common law and statute.” The case will now move to the discovery phase of the trial. “The D.C. Court held for a principle that is basic corporate law,” stated University of California Berkeley Law School Professor Steven Davidoff Solomon, an expert adviser to the plaintiffs. “The First Amendment does not give license to override a company’s organizational documents agreed to by its members. Instead, like an organization, a non-profit is a creature of its organizational documents and must follow them in all it does.” The judge did dismiss the plaintiffs’ ultra vires claim which charged that the boycott of another country is outside the scope of ASA’s charter. The plaintiffs are evaluating the Court’s decision with respect to this aspect of their claims. “While we are disappointed with the court on the ultra vires claim, that part of the lawsuit is not necessary in demonstrating that ASA’s boycott is unquestionably unlawful,” stated Kenneth L. Marcus. 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 a respected American Studies department and another is a member of ASA’s governing council and the editor of the Encyclopedia of American Studies. After numerous unsuccessful attempts since 2013 to address the matter within the Association, the professors filed this suit as a last resort to return the ASA to the academically-focused organization it had been for 60 years. The lawsuit alleges ASA is in violation of the D.C. Non-Profit Corporation Act. In addition to violating DC law, the lawsuit reveals the defendants attempted to prevent informed discourse. In fact, no research performed with scholarly vigor was presented and the ASA refused to circulate or post to the ASA’s website several letters opposing the resolution, including one signed by approximately 70 ASA members and another opposing the resolution from eight former ASA presidents. “This boycott has nothing to do with human rights: the ASA has not even as much as considered boycotting any country for their human rights record. That they only do for the Jewish State,” stated Northwestern Pritzker Law School Professor Eugene Kontorovich. Since the filing of the ASA lawsuit, the American Anthropological Association and the Modern Language Association have both backed down from passing boycott measures. “Today’s victory is much bigger than merely the ASA,” added Kenneth L. Marcus. “When the MLA attempted a boycott vote, this case was cited, by those on both sides of the issue, as one of the reasons the resolution was defeated. Academic activists are beginning to think twice before adopting anti-Semitic and unlawful policies that undermine the pillars of higher education.”