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Judge approves lawsuit against American Studies Association for improper Israel boycott vote

Leaders could be personally liable

An academic association may have broken its own rules in approving an anti-Israel resolution three years ago – and its leaders could be on the hook for tens of thousands of dollars in damages.

A federal judge in Washington, D.C. gave the green light to a lawsuit filed by four current and former members of the American Studies Association against their leadership for actions related to the boycott, divestment and sanctions (BDS) vote.

The order is a warning sign for other academic associations thinking of approving academic boycotts of Israel, a legal adviser for the plaintiffs told The College Fix.

“The major organizations … have not seen this as a happy story for the American Studies Association, and I don’t think it’s going to get any happier,” Northwestern University Law Prof. Eugene Kontorovich, an expert on international law, said in a phone interview.

It’s a strike against leaders whose associations are at risk of “being hijacked to serve a completely different agenda,” he said, “an opposite agenda from promoting the study and free flow of ideas.”

No more ‘formal collaborations’

The 2013 vote by the ASA, whose members study “U.S. culture and history in a global context,” was sandwiched between successful BDS votes by the Association for Asian American Studies and Native American and Indigenous Studies Association.

The resolution says it “condemns the United States’ significant role in aiding and abetting Israel’s violations of human rights against Palestinians and its occupation of Palestinian lands through its use of the veto in the UN Security Council.”

More concerning for members who might oppose Israeli policy, however, is that the ASA pledged to refuse “in its official capacities to enter into formal collaborations with Israeli academic institutions.”

MORE: Literary scholars that helped kill BDS resolution prepare for backlash

Some of the plaintiffs now had quickly called for a revote then, saying too few members actually voted to indicate the sentiment of members at large.

Two of them, Pennsylvania State University’s Simon Bronner and Rutgers’ Michael Aaron Rockland, are past recipients of the ASA award for outstanding abilities and achievement, the Turpie Prize.

In their April 2016 lawsuit, the plaintiffs accused ASA President Curtiz Marez of a bait-and-switch campaign for office.

They said he ran on a platform of “making knowledge less privatized and more equally distributed” and never mentioned BDS, but once in office, Marez turned the ASA into a “social justice” organization that made Israel its “central focus.”

Financial consequences of boycott vote

The lawsuit claims that the academic boycott against Israel is not germane to the ASA’s charter and mission, accusing leaders of misusing membership dues for their own political gains.

In his March 31 order, Judge Rudolph Contreras said the plaintiffs hadn’t made sufficient factual allegations that the leaders violated the ASA’s bylaws, known as “ultra vires” claims, by running it as a “social justice” rather than academic organization.

But worryingly for the defendants, Contreras found that he had “subject-matter jurisdiction” and “personal jurisdiction” over them individually.

MORE: Surprise loss for BDS supporters in anthropology scholars group

If the plaintiffs can prove their claims, they might be able to recover more than $75,000 in damages, the statutory threshold in this kind of case, the judge said.

They allege that “the ASA will lose membership dues from many former members from years to come,” and that the organization has already spent funds improperly to defend and promote the BDS resolution.

Even if the ASA has experienced a “short-term increase in revenues” since the resolution, Contreras said, it might be a blip in a long-term decline.

The defendants are also subject to District of Columbia law because they “voluntarily served” as officers of the ASA, which is incorporated in D.C., and they “led the effort” to adopt the “allegedly inappropriate” resolution at the 2013 meeting in D.C., Contreras said.

The judge compared the situation to a 2011 ruling against the leaders of the Alpha Kappa Alpha sorority. Their “only apparent connection” to D.C. was participating in “legislative sessions” that allegedly misspent funds at the international sorority’s D.C. meeting.

Breach of contract

Contreras refused to dismiss the case on the First Amendment grounds that the defendants sought. They “voluntarily assumed roles [in the ASA] where their right to expression would be limited by bylaws, the common law, and statute,” Contreras said.

The breach-of-contract claim can also move forward, the judge said. ASA bylaws require “the affirmative votes of two-thirds of voting members on the first full day of the meeting,” a procedure the executive committee ignored.

The executive committee can only speak for the entire ASA on “matters of academic freedom, freedom of access to information, and policies concerning academic grants” that “directly” affect its members.

MORE: Student government calls Israel’s 1948 founding ‘occupation’

Based on the text of the resolution and its preamble, “the purportedly oppressive practices by Israel do not ‘directly’ affect the scholarly work or teaching of current ASA members,” so it is “plausible” that the procedure the leaders followed was not proper, Contreras said.

The academic boycott was “an act of building walls rather than bridges” and singled out “the Jewish state” for its human rights record, Kontorovich told The Fix: “This boycott has nothing to do with human rights.”

Other academic-boycott votes at larger academic associations have failed in the wake of the ASA vote.

Most recently the Modern Language Association not only rejected such a resolution, but passed another that argued against any further boycott attempts.

MOREIsrael film screening canceled because it will offend ‘BDS faction’ 

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About the Author
Devyn Deeter -- Metropolitan State University