US professors take academic boycott of Israel to court
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US professors take academic boycott of Israel to court

Plaintiffs in DC lawsuit say that American Studies Association’s ban violates organization’s charter — and tax law

Rebecca Shimoni Stoil is the Times of Israel's Washington correspondent.

In December 2013, the American Studies Association approved a boycott of Israeli academic institutions, such as the Hebrew University of Jerusalem (pictured). (Yonatan Sindel/Flash90)
In December 2013, the American Studies Association approved a boycott of Israeli academic institutions, such as the Hebrew University of Jerusalem (pictured). (Yonatan Sindel/Flash90)

WASHINGTON — Four professors affiliated with the American Studies Association filed a lawsuit Wednesday in the District of Columbia’s Federal District Court, claiming that the association’s politicization of the organization through adopting an academic boycott of Israel violated laws governing nonprofit organizations.

“Until a handful of zealots appropriated our learned society, the ASA was the leading organization for the study of American culture,” stated Simon Bronner, a professor at Pennsylvania State University at Harrisburg and one of the plaintiffs. “Yet in 2013, a handful of anti-Israel Boycott, Divestment and Sanctions (BDS) activists aggressively steered the ASA to an organization of social change pushing a narrow political agenda.”

Bronner is joined in the suit by Michael Rockland, Michael Barton and Charles Kupfer, all prominent professors in the field of American studies. Their academic society, the ASA, voted during its annual meeting in 2013 to adopt an academic boycott of Israel.

The plaintiffs said Wednesday that the decision to file the suit followed numerous unsuccessful attempts to address the matter within the Association, describing it in a statement as “a last resort to return the ASA to the academically-focused organization it has been for 60 years.”

In the suit, the plaintiffs claim that the boycott resolution adopted by the organization during its December 2013 annual conference came following a concerted effort by a small number of BDS activists. These activists, the plaintiffs complain, abused their leadership positions in ASA to make anti-Israel activism the central focus of the Association – a move that the plaintiffs claim violates the organization’s stated mission.

At the time the boycott was initiated, ASA’s constitution stated that “[t]he object of the association [is] the promotion of the study of American culture through the encouragement of research, teaching, publication… about American culture in all its diversity and complexity.”

The suit charges that a boycott of another country is outside the scope of ASA’s charter and in fact contradicts its stated purpose of promoting knowledge.

The constitution also states that ASA’s goal is “the strengthening of relations among persons and institutions in this country and abroad devoted to such studies.”

The complaint argues that the decision to pursue an academic boycott of Israel accomplishes the exact opposite.

In its IRS documents that maintain its tax-exempt status, the Association continues to describe its mission as “the nation’s oldest and largest association devoted to the interdisciplinary study of American culture and history.” It states that its tax-exemption derives from its purpose of “advancing the Study of American Culture.” The plaintiffs allege that the academic boycott of Israel is clearly outside of this stated mission and purpose – and that the tax documents are thus inaccurate.

The lawsuit alleges that ASA is in violation of the District of Columbia’s Non-Profit Corporation Act, which requires that an organization operate only within the provisions of its charter. According to legal experts, the charter is a contract intended to protect members from those who seek to co-opt a nonprofit for purposes outside the boundaries of its charter.

“This appears to be a clear example of a small group misappropriating assets raised for an agreed upon purpose and illegally using the organization to advance a completely separate and personal agenda,” stated University of California Berkeley Law School professor Steven Davidoff Solomon, who served as an expert adviser to the plaintiffs.

Northwestern Pritzker Law School professor Eugene Kontorovich, who also served as an expert adviser to the litigation group emphasized that the suit “is not about silencing or stopping criticism of Israel, or in any way discouraging it. It is about nonprofit corporations abiding by their own rules.”

The plaintiffs’ legal counsel noted that many ASA members, including 12 winners of the outstanding ASA Mary C. Turpie Award, raised objections regarding the boycott to ASA’s leadership, but were ignored.

As evidence that the organization’s standing has suffered, they cited cases in which ASA members resigned and stopped donating as well as the ringing condemnations of the ASA’s boycott leveled by the American Association of University Professors (AAUP) and 134 members of Congress.

A similar argument was made when in 2014 the Royal Institute of British Architects endorsed an anti-Israel boycott. In that case, lawyers warned the institute’s action was outside its mission and therefore illegal – and the policy was rescinded.

“Academic associations should think twice before abusing their missions and betraying the lawful purposes for which they were established in favor of the personal political agendas of their noisiest and most politicized activist members,” Kenneth L. Marcus, president of the Louis D. Brandeis Center for Human Rights Under Law and one of the attorneys on the case, emphasized in a written statement.

“This case stands for the simple proposition that nonprofit corporations must pursue the lawful purposes for which they are established, for which they receive nonprofit status and for which they raise charitable contributions,” added Jerome Marcus of Marcus & Auerbach LLC, lead counsel to the plaintiffs.

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