Dara Simons Salomon Center April 18, 2017 In this episode of Your Second Opinion, Kenneth Marcus discusses the defining anti-Semitism, the Anti-Semitism Awareness Bill, and the spread of anti-Semitism on college campuses. Kenneth Marcus is the president and general counsel for Louis Brandeis Center for Human Rights, which was founded to combat anti-Semitism on college campuses. This episode seeks to bring awareness about the spread of anti-Semitism today on American university campuses and how it can be combatted. After listening to this episode, you will have a greater understanding of the challenges affecting Jewish college students today and what the government needs to do in order to protect them. In this episode, topics discussed include: The bipartisan Anti-Semitism Awareness Bill and why it is needed on college campuses throughout the United States The need for one definition of anti-Semitism by the American government The reality of anti-Semitism on college campuses in the United States today The definition of anti-Semitism, the Three D test, and why they are important Original Article
Richard Sandler The Hill April 7, 2017 For the past 10 years, the FBI’s Statistics on Hate Crimes show that the number of anti-Semitic victims has remained higher than any other religious category. And within the last year alone, anti-Semitic hate crimes rose nine percent. These incidents are not limited to the threats at Jewish institutions, but they are also taking place on college campuses — big and small, public and private — across the country. In classrooms, libraries, and dormitories, Jewish students are being harassed and discriminated against because of their faith. The Anti-Defamation League’s annual audit of anti-Semitic incidents reported that there were 90 anti-Jewish incidents across 60 college campuses in 2015. An initiative focused on protecting Jewish students found that in the first six months of 2016, there was a 45 percent increase in overall anti-Semitic activity on college campuses compared to the first six months of 2015. No student working hard to earn a degree should ever have to face fear and hate based on who they are or their religious identity. We cannot stand idly by while our students are subject to discrimination, intimidation, or harassment. That is why the Jewish Federation of North America stands with the Anti-Defamation League, American-Israeli Public Affairs Committee (AIPAC), Simon Wiesenthal Center, the Brandeis Center for Human Rights, and many other groups in support of the Anti-Semitism Awareness Act. This legislation directs the U.S. Department of Education to use the leading definition of anti-Semitism when investigating allegations of unlawful harassment, intimidation, or discrimination against Jewish students. This is a definition that is shared by the U.S. Department of State, European Union, and the 31 member governments of the International Holocaust Remembrance Alliance (IRHA). Last year, the Senate unanimously passed the Anti-Semitism Awareness Act. But, the vote unfortunately happened too late in the session for the House of Representatives to take action. Since then, anti-Semitic incidents on college campuses have only intensified. From the intimidating use of Nazi symbolism to protests and other types of intimidation and hate, Jewish students on college campuses are experiencing an unprecedented amount of hostility and discrimination. This is not a partisan issue. In fact, the Anti-Semitism Awareness Act was championed by Sens. Bob Casey (D-Pa.) and Tim Scott (R-S.C.), and they demonstrated that fighting hatred is a bipartisan issue to ensure the legislation received unanimous support from the entire Senate. We thank the bipartisan efforts made thus far and hope Congress will continue working together in a bipartisan fashion to stand against anti-Semitism on college campuses. We must ensure that college campuses remain safe learning environments for every student, regardless of their race, religion, ethnic origin, or political beliefs and affiliations. We may come from different vantage points, denominations, walks of life — we may differ from each other in many other ways — but nothing compares to that which unites us. We are all stronger when we work together. College students from every denomination and sect of any religion can unite and combat the rising acts of anti-Semitism on campuses, as discrimination affects all students. Members of Congress from both sides of the aisle can support the Anti-Semitism Awareness Act. We need to stand together, fight anti-Semitism, and pass legislation imperative to stopping hate and bigotry on college campuses. Original Article
Rachel Frommer Algemeiner April 6, 2017 A court’s rejection of the American Studies Association’s (ASA) attempt to stop a lawsuit brought against its academic boycott of Israel signified “the turning of the tide against BDS,” the head of a Jewish rights-focused legal organization told The Algemeiner on Wednesday. Kenneth Marcus, president and general counsel of the Louis D. Brandeis Center for Human Rights Under Law, applauded the Washington, DC district court’s Monday decision to allow the complaint — filed last year by a group of prominent professors — to move forward against the ASA’s December 2013 boycott resolution. “This is a pivotal point in the case, as we can now move on to discovery,” Marcus said. “But it also signals to other associations that they can be held liable if they engage in BDS activities that violate their own internal rules, violate the laws of incorporation and constitute a breach of trust with their members.” “This decision has generated an enormous amount of not just relief, but excitement from those people, genuine scholars, who hate academic boycotts and want to see academic associations returning to scholarship,” he continued. “From the moment this complaint was filed, it has had an impact,” Marcus added, noting that the case was cited as being partially responsible for the Modern Language Association’s failed attempt in January to pass a BDS motion. According to the Brandeis Center, the suit’s plaintiffs consider the ASA’s boycott campaign “a concerted effort by a small number of BDS activists…who abused their leadership positions in ASA to make anti-Israel activism the central focus of the Association.” Marcus said those who stand in opposition to BDS have been facing challenges on a number of fronts. “As Jews, they are beleaguered, in some respects harassed; as supporters of Israel, they feel the Jewish state is being unfairly maligned; as academics, they are facing junk scholarship used as a basis for resolutions that are factually ridiculous; as professors, they are concerned that the politicization of their field is lowering the academic standards,” he explained. One of the plaintiffs’ claims that the ASA did succeed in getting thrown out was the charge that an academic boycott falls outside the purview of the association’s charter, a development Marcus called “disappointing” in a statement. Original Article
David Israel Jewish Press April 4, 2017 The United States District Court for the District of Columbia has rejected efforts by the American Studies Association (ASA) to suppress a lawsuit filed against the Association by its own members challenging its 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. 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. Since the filing of the ASA lawsuit, the American Anthropological Association and the Modern Language Association have both backed down from passing boycott measures. 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 US 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 DC 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 DC 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 DC 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,” Fried said. In addition, the court 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 DC 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 (beyond legal authority) 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. “Today’s victory is much bigger than merely the ASA,” added Brandeis’ 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
On Tuesday, April 4, Professor Oren Gross will address the LDB chapter at Benjamin N. Cardozo School of Law on the Legality of Jerusalem as Israel’s Capitol. Prof. Gross, the Irving Younger Professor of Law at the University of Minnesota Law School, is an internationally recognized expert in the areas of international law and national security law. He is also an expert on the Middle East and the Arab-Israeli conflict. Professor Gross holds an LL.B. degree magna cum laude from Tel Aviv University, where he served on the editorial board of the Tel Aviv University Law Review. He obtained LL.M. and S.J.D. degrees from Harvard Law School while a Fulbright Scholar. Professor Gross was a member of the faculty of the Tel Aviv University Law School in Israel from 1996 to 2002. He has taught and held visiting positions at Harvard Law School (where he held the position of Nomura Visiting Professor of International Financial Systems in 2012-13); Princeton University; Benjamin N. Cardozo School of Law; the Max Planck Institute for International Law and Comparative Public Law in Heidelberg, Germany; the Transitional Justice Institute in Belfast (while a British Academy visiting professor); Queen’s University in Belfast; the University of Santiago de Compostela (Spain); and Brandeis University. Professor Gross has received numerous academic awards and scholarships, including a Fulbright scholarship and British Academy and British Council awards.
On Tuesday, April 4, Professor Abraham Bell will address the LDB chapter at the University of Minnesota School of Law on the topic of “Forum Removal: Should the U.S. Embassy be Moved to Jerusalem?” Prof. Bell teaches at the University of San Diego School of Law Bar Ilan University, and teaches and writes in the areas of property, copyright, international law, and economic analysis of law. Prof. Bell clerked for Justice Mishael Cheshin of the Supreme Court of Israel and for the High Court of Justice Department within the Israeli State Attorney’s office, and he is a veteran of the Israel Defense Forces. A highly sought-after expert on international law and the Arab-Israeli conflict, he has advised officials on four continents. His published articles on the subject include Palestine, Uti Possidetis Juris and the Borders of Israel (with Eugene Kontorovich); A Critique of the Goldstone Report and its Treatment of International Humanitarian Law; and The Mythical Post-2005 Israeli Occupation of the Gaza Strip (with Dov Shefi).
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.”