Federal court requires higher damages to retain jurisdiction
A lawsuit against the American Studies Association (ASA) for an anti-Israel resolution has been dismissed, but merely for bringing it to the wrong court, according to an attorney for the plaintiffs.
The ASA members who sued the academic organization for violating its bylaws got false hope nearly two years ago, when a federal judge allowed some of their claims to proceed.
But the setback for the plaintiffs is minor for the moment, attorney Jennifer Gross told The College Fix in a phone interview. They simply must refile the case in a court where there’s no minimum threshold for damages.
Gross said the ruling is not a victory for Palestinians, or one seeking for a solution to the Middle East, though people will claim that. No longer about the boycott, divestment and sanctions movement, the case concerns an internal struggle at one of several academic organizations to consider anti-Israel resolutions.
“This case is about people who overtook the ASA for their own personal interest and destroyed it in the process,” Gross said. “It’s about what happens here in America at this one organization.”
Can’t sue for injuries suffered by the ASA as an institution
When the ASA approved the academic boycott of Israel more than five years ago, some of its members – including the current plaintiffs – quickly called for a revote, citing low turnout. One college even withdrew from the association in protest.
ASA members filed suit in 2016 through the Louis D. Brandeis Center for Human Rights Under Law, led at the time by Kenneth Marcus (below), now head of the Department of Education’s Office for Civil Rights.
They argued that the resolution violated academic freedom and that the ASA misappropriated funds and breached its contract with its members by turning an “apolitical” association into a “mouthpiece” for the BDS movement.
U.S. District Judge Rudolph Contreras, who upheld the lawsuit in April 2017, dismissed it Feb. 4 due to “lack of standing” from the plaintiffs to claim $75,000 in damages. That’s the minimum threshold for federal courts.
The plaintiffs can’t seek claims “on behalf of” the association itself for the defendants’ misuse of the ASA, which is the only way they could reach the $75,000 “amount-in-controversy,” the judge said.
Contreras compared the ASA’s relationship to the plaintiffs with a corporation’s relationship to its shareholders, who are strictly limited in their ability to “vindicate the corporation’s rights, except in specific circumstances.” They could claim relief for ASA injuries if the organization is “made a plaintiff through a derivative action,” but they can’t do that under District of Columbia law, the relevant jurisdiction.
The precedents cited by the plaintiffs concern nonprofit members who “directly suffer certain injuries from organizational mismanagement,” Contreras wrote. Those rulings don’t speak to whether nonprofit members “may ultimately secure relief for the organization’s injuries rather than their own,” however.
“[T]he parties and the Court have danced around the key issue—Plaintiffs’ ability to satisfy the amount-in-controversy required by [federal law]—for multiple rounds of briefing and opinions,” the judge wrote: “The waltz has now reached its crescendo, and Plaintiffs have been found wanting.”
‘Their reputation has fallen apart,’ and trust fund has been depleted
The judge’s decision doesn’t mean a loss for those protesting the anti-Israel resolution, merely that they “brought it to the wrong tribunal,” lawyer Gross, who started the case as senior staff attorney for the Brandeis Center, told The Fix.
“Those claims that the plaintiff has standing to bring are not worth $75,000,” she said, echoing the statement put out by the Brandeis Center. “Now what clearly is worth $75,000 is the damage to the ASA itself, because they’ve withdrawn so much money from the trust fund, plus their reputation has fallen apart. But the ASA itself isn’t one of the plaintiffs.”
The damages to the ASA, as opposed to the individual plaintiffs, include improperly spent resources to enforce the BDS movement, the plaintiffs argued. They also said the association has drawn out funds from its trust fund and has gone in the red, citing recent tax returns.
Prior to adopting the resolution, the defendants gained control of the process by which ASA chooses its leaders, and chose leaders who would promote the anti-Israel agenda, the plaintiffs argued. They then froze membership rolls on a particular day, which would maximize the likelihood of the boycott resolution to be passed, according to the summary by Contreras.
Gross said the plaintiffs are “probably going to appeal” the decision to the U.S. Court of Appeals for the D.C. Circuit, but in the meantime, they are going to move the case to the D.C. municipal court, where they don’t have to meet a minimum threshold for damages.
She emphasized that Contreras found the plaintiffs’ case to be a worthy one and did not overlook the defendants’ alleged misdeeds. “[H]e specifically said that we had presented evidence of meritorious claims, suggesting that we just brought it to the wrong court,” Gross said.
Though the resolution of the nearly three-year-old case is anticlimactic, Gross did not find anything “inappropriate” in the judge’s actions. More likely, Contreras was waiting for the case to develop more before making a final decision.
Contreras “has often, in fact always, ruled before in our favor, including finding that we appropriately alleged that the defendant intentionally inflicted harm on the ASA,” she said.
‘Racist and homophobic dimensions of this legal assault’
Palestine Legal, which represents the ASA, called the ruling a “victory” that “emphasizes that efforts to censor the boycott movement will fail.”
“The Brandeis Center did not hold back its clear intent to punish me for standing up in solidarity with Palestinians and to deter others,” said Wesleyan University Prof. J. Kehaulani Kauanui, one of the defendants. She served as an elected member of the ASA’s national council when it approved the resolution.
Another defendant, Rutgers University Prof. Jasbir Puar (below), said it has been “enormously taxing to defend against the attacks on my scholarship contained in this lawsuit,” but the lawsuit has also “fueled stronger and increasingly diverse solidarity networks.” Puar is known for posting anti-Semitic memes on Facebook and accusing Israel of harvesting Palestinians’ organs.
Palestine Legal has not responded to a Fix query Monday.
The US Campaign for the Academic and Cultural Boycott of Israel portrayed the lawsuit as targeted harassment of “scholars of color and/or queer academics, highlighting the racist and homophobic dimensions of this legal assault.”
The bigger problem for BDS activists may be state legislation against their campaigns. Though New York lawmakers withdrew an anti-boycott bill in 2014 that was denounced as a “bold assault on academic freedom,” it was short-lived. The state is among 27 that have enacted anti-BDS laws as of November, according to the Jewish Virtual Library.
IMAGES: KelseyJ/Shutterstock, USCPR/YouTube, Tanja Tiziana/Rutgers University