By Elizabeth Redden
Inside Higher Ed
It’s been almost four years since members of the American Studies Association voted by a nearly two-thirds majority to adopt a resolution backing a boycott of Israeli universities, but a lawsuit opposing the resolution filed by four of the association’s current and former members rages on.
In March, a federal judge dismissed the claims of the four members that the ASA operated outside the scope of its bylaws in endorsing a boycott of Israeli academic institutions, but allowed the plaintiffs’ claims of corporate waste, breach of contract and violation of the D.C. Nonprofit Corporation Act to proceed. In a mixed ruling, U.S. District Judge Rudolph Contreras ruled that it was reasonably within the scope of the ASA’s charter as an academic organization to support a boycott of Israeli academic institutions, but found that the plaintiffs had presented a “plausible case for breach of contract” in regard to their allegations that the ASA had failed to follow its own rules in conducting a vote on the resolution in December 2013.
Now the plaintiffs are bringing new allegations.
Citing emails and other documents unearthed during discovery, the plaintiffs last month submitted a motion asking the court’s permission to file an amended complaint. The 87-page proposed amended complaint brings new charges that certain of the association’s elected leaders strategically kept their pro-boycott agendas secret when they stood for office, that they withheld “pertinent” information about the boycott resolution from voting members “unless it favored the resolution” and that they took what the court filing describes as the “unprecedented” action of freezing membership rolls prior to the announcement of the vote “with the specific intent to prevent members opposed to the resolution from casting votes.”
The proposed amended complaint says that one of the plaintiffs, Michael L. Barton, a professor emeritus of American studies at Pennsylvania State University and a member of ASA for approximately 44 years, had let his membership lapse in 2012 and was not allowed to vote on the boycott resolution when he attempted to reactivate his membership because of this “scheme to freeze the membership rolls.”
The ASA is seeking to have the motion to amend the complaint denied. In a Nov. 27 court filing, the ASA describes the plaintiffs’ motion as “an improper effort to revisit plaintiffs’ prior losses and to resurrect derivative claims that have been dismissed” and said if accepted it would “cause undue delay” and “result in greatly expanded expenses to the defendants.” In regard to the specific allegations surrounding the freezing of membership rolls, the ASA legal response says, “There is nothing in the bylaws or statutes that” would “specifically prohibit” this.
“The plaintiffs’ proposed second amended complaint is a continuation of their public relations campaign through litigation, whose focus is not truly the well-being of the ASA, but punishment of persons and entities who dare take contrary positions regarding boycotts of Israeli academic institions [sic],” the ASA legal filing states.
A response filed by the plaintiffs last week contests the ASA’s claims that the proposed amended complaint “merely resurrects derivative claims that were previously dismissed” and argues that it instead “presents entirely new claims that arise from facts uncovered in documents produced by defendants” during discovery. Further, it takes issue with what it describes as the ASA brief’s “entirely unfounded and inflammatory claims of harassment and dilatory [delaying] tactics.”
The New Claims
The lawsuit was originally filed in April 2015 against the ASA and six of its individual leaders at the time the boycott resolution was voted on, including Curtis Marez, then the president, and Lisa Duggan, then the president-elect, and several members of its elected National Council, whose members unanimously endorsed the 2013 boycott resolution before making the decision to turn it over to the full membership for a vote.
The proposed amended complaint seeks to add four additional defendants, including John Stephens, the executive director of the association. Four of the named defendants, or proposed defendants, are identified in court documents as members of the leadership of the U.S. Campaign for the Academic and Cultural Boycott of Israel, a group, largely comprised of scholars, that supports the boycott, divestment and sanctions movement against Israel.
One person the plaintiffs are seeking to add to the complaint is Jasbir Puar, an associate professor of women’s and gender studies at Rutgers University who, according to court documents, served on the ASA’s nominating committee from 2010 until June 2013, six months prior to the boycott vote, and who is also a member of USACBI’s advisory board. The complaint alleges that in her tenure on the nominating committee, Puar had an agenda of “packing the American Studies Association leadership with USACBI leadership, endorsers and other BDS advocates.”
The court filing quotes from several emails in an effort to support this, including one from Sunaina Maira, another defendant in the case: “Jasbir is nominating me and Alex Lubin for the council and she suggests populating it with as many supporters as possible.” It also quotes an email from the aforementioned Lubin: “In my conversations with Jasbir it’s clear that the intent of her nominations was to bring more people who do work in, and are politically committed to … the question of Palestine … we were nominated in order to build momentum for BDS even though the question of BDS in American Studies Association may or may not emerge while we’re on the council.”
The proposed amended complaint alleges that Puar and certain other of the defendants or proposed defendants did not disclose their pro-boycott positions in their candidate statements in standing for elected office within the association. And it provides evidence from emails that suggests that at least in some cases nondisclosure may have been a deliberate choice. The proposed amended complaint cites the following emails from Lubin (who is not a party or proposed party to the lawsuit), as well as from Maira, one of the original defendants in the case, about whether to position themselves as BDS supporters in running for National Council. Maira is a professor of Asian-American studies at the University of California, Davis, and a member of USACBI’s leadership.
Lubin: “I would welcome an expanded discussion of whether those of us nominated for the council should mention in our nomination statement our support for BDS … I wonder if it is strategic to be self-identified as a BDS candidate, or whether we should merely mention our support for human rights, academic freedom for everyone and international law.”
Maira: “I’ve been thinking this over and like Alex, I’m a bit unsure — personally, I feel it might be more strategic not to present ourselves as a pro-boycott slate. We need to get on the council and I think our larger goal is support for the resolution, not to test support at this early stage from ‘outside’ the NC.”
Another party to the email exchange offered an alternative view. Nikhil Pal Singh, who was then a member of the National Council, responded, according to the court filing:
“My real question: What do we hope to gain from election of pro-BDS members to the American Studies Association national council if we have not made any of the stakes of their election clear to the membership? … I think that not revealing something this important and intentional and then hoping later to use the American Studies Association national council as a vehicle to advance our cause will not work and may well backfire, because it will lack legitimacy.”
According to the court documents, of the three candidates to the National Council who were party to this exchange, one, Lubin, mentioned support for “a pending resolution on the academic and cultural boycott of Israel” in his candidate statement. He lost. The other two, Maira and J. Kēhaulani Kauanui, who both won, did not mention support for a possible ASA boycott resolution against Israel in their candidate statements, though Kauanui’s candidate statement did reference her ties to the broader academic boycott campaign and USACBI in particular (the statement, available here, says she was “involved in a range of activist work for indigenous rights in the Pacific Islands, North America, as well as Occupied Palestine” and that she served “as an advisory board member of the U.S. Campaign for the Academic and Cultural Boycott of Israel.”) Maira’s candidate biography is more oblique but does mention that she then served as “co-chair of the Academic and Community Activism Caucus within ASA, which organized a resolution on the war in Iraq and discussions of boycott and divestment opposing the U.S.-backed occupation and violations of human rights and academic freedom in Palestine.”
“We do not believe that those brief references come close to meeting the fiduciary duties of disclosure,” said Jennie Gross, a lawyer for the plaintiffs and a staff attorney for the Louis D. Brandeis Center for Human Rights Under Law. “Both Maira and Kauanui included statements discussing what they would do if elected; neither mentioned the boycott resolution, although we believe this was their primary intention in running, and the primary reason they were nominated to run.”
“This case is about the illegal, hostile takeover of a nonprofit, academic association by leaders of an anti-Israel group,” Gross said in a November press release. “Through a series of misrepresentations and breaches of duty, USACBI activists obtained positions of trust in the ASA, and then abused those positions in order to capture and exploit the assets of the ASA to advance the agenda of the BDS movement.” An op-ed published in The Wall Street Journal Dec. 3 and written by two law professors who have advised the plaintiffs’ lawyers similarly argues that anti-Israel activists “subvert[ed]” the ASA.
Others argue that the overwhelming results of the membership vote in favor of boycott of Israeli universities belie charges of takeovers and subversion. The sentiment at an open forum on the boycott resolution held at ASA’s 2013 conference — attended by Inside Higher Ed — was heavily in favor of the boycott.
USACBI described the charge of an “illegal, hostile takeover” as “on its face ludicrous. It seeks to rebrand normal political process, including the work of established caucuses within the ASA, as conspiracy, thus labeling democratic deliberation and advocacy a suspect and sanctionable activity,” the group said in a statement on its website.
“This lawsuit is a desperate attempt to bury the single most important fact: the ASA membership voted by an overwhelming democratic majority — 66 percent — after months of open debate, to support a boycott in support of Palestinian equality,” said Palestine Legal, a legal advocacy group that has in the past provided legal advice to ASA and is advising Puar, who is not at this point named as a defendant in the case.
ASA reported that 1,252 members voted in the election, the largest number of voters in the organization’s history. When asked how she reconciles the level of support for the resolution among the membership with the “hostile takeover” charge, Gross, the plaintiffs’ lawyer, reiterated that there are “claims and allegations relating to efforts to deny the ability to vote to ASA members and scholars who would likely vote against the resolution, while at the same time inflating the votes known to be in favor of the resolution, with new memberships of people who were neither previous members of the ASA nor American studies scholars.”
“I’m not saying the process was perfect, but if I had any concerns about transparency and legitimacy, they were satisfied by the National Council deciding to put the resolution to a membership vote,” said Nikhil Pal Singh, the National Council member who urged his colleagues to be forthright about their BDS ties in the above email exchange and who is an associate professor of social and cultural analysis and history at New York University.
Singh stands by what he said in that email exchange. “I do however understand why individuals would make the decision to represent themselves in the ways in which they chose to represent themselves,” he said. “And the reason is this: there’s a politics of smear around this kind of stuff, so I think the concern probably was, if I say this I’m going to be completely misrepresented.”
Singh said that anyone could have googled Maira and found that she was a member of USACBI’s leadership. “I think for pro-Palestine activists, there’s a countervailing argument that people feel, which is, why are we always having to genuflect to the Israeli exception in a sense? Why are we always needing to bend over backwards to prove ourselves? We are legitimate scholars who have been nominated to the National Council. Our politics are well-known; they’re a matter of public record. People can make the decision they’re going to make. The idea that there was some kind of concealment going on is just a fabrication of these lawsuits.”
More broadly, Singh, who supported the boycott resolution, said he sat on the National Council from 2010 until November 2013, when the council decided to call for a membership vote on the resolution (his term ended then, so he wasn’t privy to the further discussions about implementation of the vote). During his time on the council, he said, he saw increasing support for BDS within the membership.
“I was certainly not aware of any kind of nefarious plot to stack the National Council,” he said. “The way I saw things was that in the years leading up to 2013, there had been a series of efforts to move the ASA toward a pro-boycott position. I had been a member of the ASA since the 1990s, so I’d pretty much been to every annual meeting up to that point and each year there was more and more conversation about this … the membership was getting younger, more progressive, and the concerns of the organization were becoming much more sharply focused around questions of colonialism, racism, state violence.”
The various individuals named as defendants or proposed defendants in the case either declined interview requests or did not respond to messages seeking comment. “The plaintiffs in Bronner v. the ASA are clearly committed to trying this case in the media,” ASA President Kandice Chu said via email. “In contrast, the ASA retains its faith in the courts as the appropriate venue for litigation, and fully expects to prevail in that setting.” She said the association would not be making further comment.
John K. Wilson, co-editor of the American Association of University Professors’ “Academe” blog, strongly opposes academic boycotts but sees the ongoing lawsuit against the ASA as “a meritless lawsuit aimed at suppressing freedom of speech.”
“It is not legally problematic for candidates to make a choice not to reveal everything they believe or even what they plan to do in office,” Wilson said. “It would be morally objectionable if candidates plotted to conceal a major part of their plans for the office. Although there’s not much evidence of that in this case, even if morally objectionable behavior was revealed, that would only justify criticism, not a lawsuit. And this has nothing to do with the main claim of this lawsuit, that the ASA should be legally prohibited from endorsing a boycott of Israel.
“If you don’t like what an academic organization does, you are perfectly free to persuade the members of that group to vote with you and to choose new leaders,” Wilson said. “You are perfectly [free] to denounce the group and boycott it. But you should not be able to ask the government to ban private organizations from taking a political stand.”