Lea Spyer
Algemeiner
December 20, 2016

A Jewish civil rights organization threatened a prominent academic body with legal action on the grounds that an anti-Israel motion it is considering runs counter to the group’s founding principals and tax-exempt status, The Algemeiner has learned.

Lawyers from the Louis D. Brandeis Center for Human Rights Under Law (LDB) issued the warning to the president and executive director of the Modern Language Association (MLA) in a recent letter concerning a Boycott, Divestment and Sanctions (BDS) resolution — spearheaded by MLA Members for Justice in Palestine — which is scheduled for a vote at the upcoming MLA 2017 Convention.

The MLA BDS resolution states that the “US materially supports Israel’s ongoing violations of human rights and international law” and “these violations include the systematic denial of academic freedom and educational rights for Palestinian scholars and students.” In addition, according to the motion, faculty and students have the right to “advocate for the boycott of Israeli academic institutions, without retaliation.”

The LDB said that the motion “seeks unprecedented action from the MLA that is far beyond the capacity and powers set forth in the MLA’s corporate charter” and is “also inconsistent with the mission and programs that the MLA reports to the IRS.”

The MLA Constitution spells out its mission as follows:

The object of the association shall be to promote study, criticism and research in the more and less commonly taught modern languages and their literatures and to further the common interests of teachers of these subjects.

Passing the motion, LDB said, would constitute an act that is “ultra vires,” or outside the legal framework of the MLA’s principals, making the academic group “subject to injunction [or] liability.”

“It may be maintained that the boycott resolution harms study and research by dividing the membership, and excluding academics along political lines based on ethnic and national associations, thereby undermining the values that the MLA works to advance,” the letter states.

Advancing a boycott against Israel would also “severely limit” academic freedom, LDB said, and “directly discriminate against the MLA’s Israeli members and those who plan to collaborate with them, and harm the interests of thousands of students who seek to study abroad in Israel, or engage in research partnerships with Israeli academics.”

The legal group called on MLA leaders to “table or reject the boycott resolution” which “can only bring further divisiveness” and “lead to irreparable damage” of the organization.

LDB’s warning comes against the backdrop of an ongoing lawsuit the legal group filed against the American Studies Association (ASA) for its passage of a boycott resolution in December 2013.

The lawsuit — which, as The Algemeiner reported in April, was filed on behalf of a group of distinguished ASA members — maintains that as a tax-exempt organization, the ASA’s stated mission of being “devoted to the interdisciplinary study of American culture and history” is being violated by the organization’s adoption of a boycott against Israel.

The MLA 2017 Convention is slated to take place between January 5-8 in Philadelphia, Pennsylvania.

Original Article

Aviva Vogelstein
Brandeis Blog
December 20, 2016

On Monday, Ohio Governor and former Republican presidential candidate John Kasich signed an anti-Boycotts, Divestment, and Sanctions (BDS) bill into law.

The anti-BDS bill prohibits Ohio state agencies from contracting “with a company that is boycotting Israel or disinvesting from Israel.”

LDB Senior Staff Attorney Jennie Gross testified in front of the Ohio Senate Government Oversight and Reform Committee in support of the bill on December 6, and LDB President and General Counsel Kenneth L. Marcus testified in support of the bill in front of the Ohio Assembly earlier this year.

Kasich is the seventeenth governor to sign an anti-BDS bill into law.

Original Article

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Washington, D.C. – Lawyers at the Louis D. Brandeis Center for Human Rights Under Law (LDB) have cautioned the Modern Language Association (MLA) against a controversial anti-Israel resolution that some MLA members are urging upon the association. LDB is a national civil rights organization, known for its work fighting anti-Semitism in higher education.

“MLA needs to know that these resolutions are unlawful and may subject the organization to liability,” LDB President Kenneth L. Marcus commented. “The MLA is chartered as a scholarly organization to promote the study of modern languages, not a political organization to engage in political affairs relating to Israel and the Middle East. It is unlawful for them to act outside their proper authority. They chose to be a scholarly association, rather than a political organization. What they cannot do is to maintain that they are going to be one kind of nonprofit entity and then do something very different.”

The Brandeis Center letter informed the MLA President and Executive Director in writing that the proposed resolution is ultra vires – that is, outside the legal framework by which the MLA has been established – and as an organization that is incorporated in the state of Maryland, likely illegal under Maryland corporate law. Further, the proposed resolution is inconsistent with the mission and programs that the MLA reports to the Internal Revenue Service.

“Many MLA members are concerned that the proposed anti-Israel resolution is discriminatory, anti-Semitic, and a violation of academic freedom. They are right to raise those issues. But the MLA’s leadership also needs to be aware of the legal ramifications of what they are doing,” Marcus added. “These include duties under corporation and taxation law.”

LDB’s letter explained:

A corporation, including an incorporated non-profit academic association, is only empowered to act in furtherance of its corporate mission. Where a corporation acts outside of its power or capacity, as set forth in the corporate mission, the act is ultra vires and subject to injunction, liability, or both under Maryland Code, Corporations & Associations § 1-403.

Marcus added, “There is a place in our democracy for political agitation, but it is very different than the role of scholarly associations. The MLA’s leadership owes it to the MLA’s members, supporters, state of incorporation, and the Internal Revenue Service to do what it says it will do in the association’s charter, IRS filings, and in other corporate and taxation documents.”

The corporate mission of the MLA, as set forth in the MLA Constitution, is “to promote study, criticism, and research in the more and less commonly taught modern languages and their literatures and to further the common interests of teachers of these subjects.” (MLA Const. art. II.) LDB’s letter informed the MLA President and Executive Director that the “boycott resolution is clearly unrelated to promotion of the study, criticism, and research of modern languages and literature. Indeed, it does not even purport to be intended to further the field of modern languages.”

The MLA’s proposed resolution is very similar to a 2013 American Studies Association (ASA) resolution to boycott Israeli academic institutions. This past April, the Brandeis Center, along with prominent litigators at Marcus & Auerbach and Barnes & Thornburg, filed a lawsuit against the ASA on behalf of four distinguished American Studies professors, challenging this unlawful boycott of Israel.

The Brandeis Center’s clients, well-known academics in the field of American Studies, filed suit “to restore the ASA to its stated mission – the promotion of the study of American culture – so that the members of the ASA can once again faithfully exercise their membership.”

The text of the Brandeis Center’s letter is as follows:

December 14, 2016

VIA E-MAIL

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Kwame Anthony Appiah, President
Modern Language Association of America
kappiah@mla.org

Rosemary G. Feal, Executive Director
Modern Language Association of America
rfeal@mla.org

RE: MLA Resolution to Boycott Israeli Academic Institutions

Dear President Appiah and Dr. Feal,

We are the legal staff of the Louis D. Brandeis Center for Human Rights Under Law, a national legal advocacy organization established to advance the civil and human rights of the Jewish people and promote justice for all. We have long been aware of President Appiah’s contributions to ethics, and of the scholarly reputation of the Modern Language Association.

We are disappointed to learn about a proposed resolution to boycott Israeli academic institutions (“the boycott resolution”) that is currently pending in the MLA. This divisive resolution seeks unprecedented action from the MLA that is far beyond the capacity and powers set forth in the MLA’s corporate charter. It is also inconsistent with the mission and programs that the MLA reports to the IRS in the Form 990.

Should the boycott resolution pass it would be ultra vires, that is, outside the legal framework by which the MLA has been established. A corporation, including an incorporated non-profit academic association, is only empowered to act in furtherance of its corporate mission. Where a corporation acts outside of its power or capacity, as set forth in the corporate mission, the act is ultra vires and subject to injunction, liability, or both under Maryland Code, Corporations & Associations § 1-403.

The corporate mission of the MLA is set forth in the MLA Constitution:

The object of the association shall be to promote study, criticism, and research in the more and less commonly taught modern languages and their literatures and to further the common interests of teachers of these subjects.

(MLA Const. art. II.) The boycott resolution is clearly unrelated to promotion of the study, criticism, and research of modern languages and literature. Indeed, it does not even purport to be intended to further the field of modern languages. It also differs from the sorts of “political” questions that the MLA has addressed in the past: “the growth of contingent labor and the decline of tenure in higher education; language study as an educational right; and, very broadly, a diminishment in support for the humanities,” as President Appiah pointed out in a recent column. (K. Anthony Appiah, President’s Column: Taking Issue, Taking Stock, MLA NEWSLETTER (Winter 2016) at 3.) Indeed, it may be maintained that the boycott resolution harms study and research by dividing the membership, and excluding academics along political lines based on ethnic and national associations, thereby undermining the values that the MLA works to advance. Simply stated, the boycott resolution is ultra vires and, if passed by the MLA, would violate Md. Corp. & Assoc. § 1-403 and leave MLA officers open to potential liability under Maryland law.

As you may be aware, the Brandeis Center represents members of the American Studies Association (ASA) in a lawsuit against the ASA challenging a resolution very similar to the one at issue here. That lawsuit alleges, inter alia, that the ASA resolution is ultra vires and illegal. For the same reasons, we believe that the MLA’s proposed boycott resolution is also ultra vires, and would be illegal under the law of Maryland.

Furthermore, we are struck by the prospect that the divisive boycott resolution may pass with as little as 10% of the membership vote. As President Appiah observed in Taking Issue, Taking Stock, “t is evident that the membership is divided on the issue.” We question whether the charter members of the MLA ever intended for the 10% rule to apply to such controversial provisions. Rather, we believe that the 10% rule was enacted to allow for the passage of non-controversial resolutions pertaining to matters where the 10% reflects a broader and perhaps self-evident consensus among the members, not to address political views where the membership is likely to be deeply divided – not only about the content of the resolution, but also about whether the subject falls within the fundamental purpose of the association. President Appiah has properly called for a general review of the assumptions behind and procedures called for when the organization takes up such issues.

We are also concerned about the boycott resolution’s clearly negative effect on academic freedom. Although the boycott resolution states, “When academic freedom is curtailed, higher education is compromised,” it is quite obvious that the resolution itself would severely limit academic exchange and collaboration. It would directly discriminate against the MLA’s Israeli members and those who plan to collaborate with them, and harm the interests of thousands of students who seek to study abroad in Israel, or engage in research partnerships with Israeli academics.

We respectfully call on your leadership to table or reject the boycott resolution. The boycott resolution can only bring further divisiveness, and that may lead to irreparable damage to both the internal culture and the reputation of the MLA, as it has for other associations that have passed such resolutions. Moreover, if the resolution is adopted, it may open the MLA to a lawsuit similar to the one pending against the ASA.

Thank you in advance for your serious consideration of this matter. We are available to share our expertise on these issues, and further discuss our recommendations with you. We can be reached by e-mail at klmarcus@brandeiscenter.com or by phone at (202) 559-9296.

Sincerely,

The Louis D. Brandeis Center for Human Rights Under Law

Debra Rubin
New Jersey Jewish News
December 13, 2016

After decades of an apparent diminishment of anti-Semitism following the end of World War II, prejudice against Jews has resurfaced in recent years, often intertwined with anti-Israel bias, and nowhere has it been felt more than on college campuses.

Efforts to counter this rise, however, have been hampered by the inability of university administrators and federal government agencies to define exactly what constitutes anti-Semitism, according to Kenneth Marcus, founder and president of the Louis D. Brandeis Center for Human Rights Under Law.

While universities will always respond to blatant anti-Semitic incidents, such as those involving swastikas or demonstrated hate by white supremacists, the issue becomes murkier when Israel comes into play, Marcus told a gathering Dec. 5 at Anshe Emeth Memorial Temple in New Brunswick.

“Once they mention Israel or Zionism, it becomes a matter of free speech, and the colleges and universities back off,” said Marcus. “It’s completely different than the old school anti-Semitism.”

Marcus, a former staff director of the federal Commission on Civil Rights, said he became so alarmed at the confusion over the link between anti-Semitism and anti-Zionism that he felt compelled to write The Definition of Anti-Semitism, which was published in 2015. He previously authored Jewish Identity and Civil Rights in America.

“This is one of the scariest times I’ve ever seen,” said Marcus, who launched the Brandeis Center in 2011 to protect the rights of Jews and promote justice for others. With chapters at 18 law schools across the country, one of its major focuses is combating anti-Semitism on college and university campuses.

Yet, despite all the divisive speech generated by the recent presidential campaign and the rising tide of anti-Semitism on campus, Marcus said he is hopeful it can be stemmed through Jewish unity. “We’re gaining strength by coming together,” he said.

He implored the crowd to speak up against every instance of anti-Semitic speech or act, big or small. Otherwise the “hardline anti-Semitism” won’t seem as repugnant.

“What scares me is the trajectory of where this is going,” said Marcus. “If we don’t stop it, 10, 20 years from now our college campuses will look like what we now see in Europe.”

He noted the results of a study of Jewish students at 55 campuses across the country conducted two years ago by his center with Trinity College in Hartford, Conn. More than half the students surveyed had either personally experienced or witnessed anti-Semitism.

The civil rights attorney said while it’s possible to criticize Israel without hating Jews, as many as nine out of 10 involved in the anti-Israel Boycott, Divestment, and Sanctions campaign either consciously or unconsciously harbor anti-Semitic feelings.

He recalled the path leading him to realize the depth and complexity of the problem.

Marcus was a litigation partner at two major law firms before joining the government, where he expected to fight racism and sexism and fight for the rights of those with disabilities. While serving on the commission he became assistant secretary of education for civil rights.

During his time of service, a poster circulated at San Francisco State University in 2001-02 featuring a can with a picture of a dead baby and the words, “Canned dead Palestinian baby meat slaughtered by Jews under American license.” At a counter-protest organized by the campus Hillel, Jewish students and faculty were greeted with shouts of “Hitler didn’t finish the job” and “Jews to the ovens.” Marcus said the Jewish protestors had to be escorted by police to the safety of the Hillel building.

“It seemed political but at the same time it was clearly a form of bigotry,” he said. The staff debated how to handle a complaint from a Jewish student because the university did not have a policy on how to deal with anti-Semitism on campus.

During his tenure, as anti-Semitism couched in anti-Israel expression surged, Marcus sought to clarify the commission’s position, but after he left, his successor took a different tack, essentially leaving Jewish students without protection from 2004 to 2010 until the Department of Education’s Office for Civil Rights issued new guidelines.

At about the same time, he said, the State Department, under former Secretary of State Hillary Clinton, adopted a definition of anti-Semitism based on what Marcus called “the three Ds”: Delegitimization and Demonization of Israel and applying a Double standard of criticizing Israel alone for human rights abuses, thereby pressuring the international community to stand against Israel.

Ironically, Marcus said, this definition was applied only to overseas countries. “We lectured the entire world, but used it only for export purposes.” Americans seemed to understand what anti-Semitism “is in Paris and Cairo, but not in San Francisco or New Jersey.”

However, Marcus said, on Dec. 1 the Senate unanimously passed the Anti-Semitism Awareness Act, sponsored by Tim Scott (R-SC) and Bob Casey (D-Pa.), designed to add teeth to Title VI of the Civil Rights Act by protecting Jewish students from anti-Semitic harassment and intimidation at federally funded schools.

Unfortunately, it is unlikely that a companion House bill — cosponsored by Reps. Peter J. Roskam (R-Ill.) and Ted Deutch (D-Fla.) — will have time to be moved out of committee for a floor vote before Congress adjourns for winter break.

In that case, Marcus said, “We will just have to start over next session.”

Original Article

On Thursday evening, Dec. 8th, LDB Staff Attorney Aviva Vogelstein will be moderating a panel on “The Discussion of Israel’s Image on DC Area Campuses.” The panel will feature Rabbi Elliot Mathias, Founder and Executive Director of Hasbara Fellowships, Jay Feldman, Managing Director of the AEPi Foundation, and Keren Azaria, the Israel Fellow at GW Hillel. The event is being organized by Israel Bonds Washington Young Investor Society. For more information or to RSVP, please email avogelst@brandeiscenter.com.

Aviva Vogelstein
Brandeis Blog
December 7, 2016

The anti-Semitic Boycotts, Divestment, and Sanctions (BDS) movement against Israel suffered yet another loss this week.

Yesterday, LDB Senior Staff Attorney Jennie Gross testified in front of the Ohio Senate Government Oversight and Reform Committee in support of Ohio’s anti-BDS bill, H.B. No. 476, “to prohibit a state agency from contracting with a company that is boycotting Israel or disinvesting from Israel.” Today, the committee passed the bill with a wide margin of 9-2.

First introduced by Ohio Assembly Representative Kirk Schuring, H.B. No. 476 passed the Ohio Assembly on November 29, by an overwhelming margin of 89 to 13. LDB President and General Counsel Kenneth L. Marcus had testified in support of the bill in front of the Ohio Assembly earlier this year.

Following today’s victory, the bill now moves to the full Senate for a floor vote, and then it will go back to the House for a concurrence. If passed, Ohio will become the 16th state to join the legislative battle against BDS.

Original Article

Robin Mancoll
Jewish News VA
December 6, 2016

Author Kenneth L. Marcus will share details from his latest book, The Definition of Anti-Semitism, in which he elaborates on the link between anti-Zionism and anti-Semitism, and how this is impacting the critiques of Israel on university campuses at a Beyond the Book Festival event.

Not expecting to dedicate so much time during his career to the battle against campus anti-Semitism, the American civil rights attorney left his law firm in 2001 to fight housing discrimination and then to head the civil rights branch of the U.S. Education Department. His work involved protecting the rights of racial and ethnic minorities, women and the disabled. However, during that time and then as director of the U.S. Commission on Civil Rights, Marcus discovered that anti-Semitism was surging on university campuses.

Marcus soon realized that government and university leaders were ill-equipped to deal with the problem, and worked on new policies to address religious prejudice, including guidelines specific to the rise in anti-Semitism. In 2011, Marcus founded the Louis D. Brandeis Center for Human Rights Under Law to advance the civil and human rights of the Jewish people and promote justice for all, with a primary mandate to use legal tools to fight campus anti-Semitism. Today, he serves as the organization’s president and general counsel.

Although a working definition of anti-Semitism and a connection between anti-Semitism and anti-Zionism exists, they are not consistently used. For example, the U.S. government applies its State Department definition of anti-Semitism to incidents that occur outside the United States, but not to those that apply domestically. Part of the problem, according to Marcus, is that anti-Semitism is not widely understood. Education, he says, should be the first step, but when education is insufficient, more forceful, concerted efforts, including the employment of law and public policy are necessary, which is the specialty of the Louis D. Brandeis Center for Human Rights Under Law.

Anti-Israel activity on American college campuses led by student groups promoting Boycott, Divestment and Sanctions (BDS) campaigns against Israel to isolate the Jewish state, makes students feel uncomfortable and unsafe. These activities also contradict the theory that universities are meant to offer safe spaces for civil debate on the exchange of ideas and education among students and professors.

The BDS movement is not new; it only extends age-old anti-Jewish hatred in new settings. In The Definition of Anti-Semitism, Marcus traces BDS origins to 1933 and beyond as the Nazi boycott was one of the first steps in the planned extermination of the Jewish people, providing a formal structure to justify the attacks on Jewish businesses. Similarly, Marcus affirms the BDS movement provides a new rationalization in the politically correct terminology of today, for the anti-Jewish boycotts.

Marcus will offer suggestions for college students to use in the fight against on-campus racism, as well as a better understanding of the new forms of anti-Semitism plaguing the world. His visit will kick off the Community Relations Council and Simon Family JCC’s three part series focusing on anti-Semitism and anti-Israel sentiment on university campuses.

The Definition of Anti-Semitism will be available for purchase and signing after the program.

This Beyond the Festival, Simon Family JCC Lee & Bernard Jaffe* Family Jewish Book Festival event with author Kenneth Marcus, is free and open to the community with RSVP (required), to crc@ujft.org or 965-6107.

*of blessed memory

Original Article

LDB’s Kenneth L Marcus, will appear for a discussion and information event In Virginia Beach, Virginia, at the Reba & Sam Sandler Family Campus Multi-purpose room.