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Judge: Lawsuit against American Studies Assoc over BDS can move forward
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.

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Alyza Lewin, Esq.
Alyza D. Lewin is a cofounder and partner in Lewin & Lewin, LLP, where she specializes in litigation and government relations.
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