The Wrong Way to Oppose BDS (Again)

The Louis D. Brandeis Center has filed a lawsuit against the American Studies Association seeking to enjoin the ASA’s resolution to boycott Israeli academic institutions.  The complaint asserts two bases for the injunction:  First, that an “academic boycott of a foreign country is simply outside of the ASA’s authority to act;” and second, that certain voting irregularities render the resolution invalid.  As I explained in an earlier post – when the idea was first bruited – this lawsuit is a very bad idea.  Although I am strongly opposed to academic boycotts, I believe that the lawsuit is wrong legally, strategically, and politically.

Legally.  The main argument in the lawsuit is that the ASA resolution was ultra vires, in that it was not authorized by the relevant provision of the organization’s constitution.  Article I, § 2 of the ASA constitution, however, states that,

The object of the association shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity. (emphasis added)

Proponents of the resolution will therefore be able to argue that the boycott will strengthen relations with institutions in many more countries than it will restrict.  And though I personally disagree strongly with that position, it is hard to imagine that a court will want to second-guess the organization about the relative importance of its external relationships.

Strategically.  It is an unfortunate fact that the leadership of the ASA has become dominated by BDS advocates, and that the membership voted strongly for the boycott resolution.  Even if the lawsuit were successful on ultra vires or procedural grounds, the ASA could quickly remedy the defects, either via constitutional amendment or re-voting.  The result would simply be another debate and another boycott resolution.  The more likely outcome, however, is that the lawsuit will be dismissed, which of course will be seen as a reaffirmation of the BDS resolution.

Politically.  Lawsuits such as this one simply reinforce the claim that friends of Israel want to squelch public debate.  Like it or not, the ASA has chosen to take a public position on Israel, supported by a clear majority of its voting members.  Overturning the vote through legal action would be broadly seen as anti-democratic.

The ASA boycott of Israel is discriminatory, hypocritical, and anti-intellectual.  The politicization of an academic association is badly misguided.  Nonetheless, the way to oppose BDS is through principled argument, not judicial intervention. 

Comments

[anon]

On this point, I completely agree with Lubet.

Take note, haters.

[Ken Waltzer]

Thanks for offering a way to start thinking about this. I generally think that litigation or legislation are not the ways to go, open debate and principled argument are the proper modes. But I am uneasy about that position in thinking about this particular example. How is confronting a professional association which has adopted a political standard for it membership "squelching public debate?" Surely such debate is now barred from the association. And some members of the association are victims of the position, namely those who work with Israelis and Israeli institutions. Yes, principled argument is to be preferred to judicial intervention, surely, but where is such principled argument to take place? Just who is squelching debate?

Too much of the account above makes it seem that what happened at ASA was simply a vigorous debate and one side won, the other lost. No manipulation, no use of association position to favor a result, no censuring of other side debate. If I recall Sharon Musher's reportage, that was not the case. Elsewhere you wrote, litigation just brings out the trope about Jewish power. But that trope will be heard no matter what, and it is not a good argument for using what skills and resources that are available. I'm wrestling with this, drawn to your view, but not able totally to convince myself....

[David Schraub]

I also agree with this assessment. One thing I will say is that the proposed Anthropology (AAA) resolution I think could be open to a valid lawsuit because (I understand it) it purports to restrict the ability of Israeli academic institutions to purchase AAA journals at institutional rates. This strikes me as a very plausible case of national origin discrimination that is not simply expressive but goes to the ordinary provision of goods and services. In that context, I think a lawsuit would be more defensible.

[twbb]

This goes beyond a bad idea to frivolousness. The idea that a Court would step in to help the losing side of an organization's majority-voted decision seems far-fetched, and the claim by plaintiffs that they should be awarded damages -- not just injunctive relief -- against ASA leaders seems vindictive.

This is especially true considering the ASA is purely a voluntary organization that they could quit easily. It's not a quasi-official body like the ABA or AMA, and it doesn't certify academic departments like engineering societies.

[[M][@][c][K]]

Good grief, I agree with Steve. Two bad ideas don't make a good one.

[Captain Hruska Carswell, Continuance King]

Don't mean to be cheeky here (well actually I do), the only winners will be attorneys opening up new files and billing the hell out of this. Even if it gets tossed on Summary Judgment, there are still a few court appearances and reply motions....Nothing wrong with see an attorney getting paid!!!!!! It's a beautiful thing. It means there is hope for me!!!!

[Edward S. Beck]

With all due respect to those opposing or struggling with litigation as a way to challenge the scourge of BDS on campus and with my own background of having fought academic BDS internationally since 2003, I fully support the efforts of my distinguished colleagues whose own political views range across a wide political spectrum. Two of the four plaintiffs were colleagues of mine for twenty years and we remain friends. They are distinguished scholars in their fields, one being a Division Head, another being an University endowed chair and highly honored scholar in his discipline and all solid contributing members (one being a founding member) to the Association they are suing They are bold and courageous, precedent- setting and cutting edge in terms of keeping academics accountable for what they say and do in the name of academic freedom. This has nothing to do with freedom of speech. It has everything to do with misusing a not-for-profit tax exempt organization for purely political purposes in violation of tax codes and mission statement. It is easy to be self-righteous and poop the lawyers involved, but Ken Marcus, Eugene Kontorovich and other lawyers involved are solid, prinicipled lawyers who have given of themselves to the anti-BDS movement as faculty activists. I know these people and would want them on my side any time. I applaud these efforts, think they are long overdue and believe they are both historic and will be effective in giving those considering BDS activities as professional activities further consideration before going down that road. Bravo to those faculty who have the courage to have their day in court. Were there were more such heros in the academic community.

[Alan J Weisbard]

I am not certain that litigation or legislation should be ruled out in all imaginable circumstances, but we should be cognizant of the costs involved, and not merely the financial ones. I think Steven is correct that this particular litigation is a loser in virtually all respects and is highly likely to be counterproductive. Efforts like this need to be carefully considered on their particular facts, and not oversimplified into good guys vs. bad guys, as Ed Beck's comment seems to suggest. My understanding is that several of those closest to the situation strongly disapprove proceeding with this litigation, and I think the lawyers involved in bringing the case may well be tone deaf to its larger implications.

[Enrique Guerra Pujol]

We could extend the logic of Lubet's argument as follows: "[X (where X = gun control laws, traditional marriage laws, affirmative action rules)] is discriminatory, hypocritical, and anti-intellectual. The politicization of [X, e.g. constitutional rights/family life] is badly misguided. Nonetheless, the way to oppose [X] is through principled argument, not judicial intervention."

[Rudolph20]

I think the lawsuit is not a clear winner on the law, but I have no strategic or normative objection to it. The theme of the complaint, and the thrust of its well documented allegations, is that the ASA has been hijacked by ideologues who have schemed to take over an academic organization and use it for the patently improper purpose of engaging in their political activities. That is pretty clearly true. The fact that those activities are expressly directed at suppressing academic speech, it seems to me, adds to the ultra vires argument. Also, I am not sure that it is true that the ASA could readily cure the problem by declaring itself essentially to be a political lobbying, and not an academic, enterprise. But forcing them to do that would certainly be a victory.