More Objectionable Anti-BDS Coercion

Academic boycotts of Israel are discriminatory, counter-productive, and antithetical to academic freedom, but some anti-boycott tactics are also deeply objectionable.  First among these is the unfortunate effort to squelch the BDS movement through litigation. 

The latest salvo in this battle was delivered by the Louis D. Brandeis Center (LDB), which recently demanded that the Modern Language Association discontinue consideration of its own boycott resolution on the ground that it is beyond the organization's "proper authority."  According to the LDB press release, 

The corporate mission of the MLA, as set forth in the MLA Constitution, is “to promote study, criticism, and research in the more and less commonly taught modern languages and their literatures and to further the common interests of teachers of these subjects.” (MLA Const. art. II.) LDB’s letter informed the MLA President and Executive Director that the “boycott resolution is clearly unrelated to promotion of the study, criticism, and research of modern languages and literature. Indeed, it does not even purport to be intended to further the field of modern languages.”

As I have explained before, this approach is wrong legally, strategically, and politically.

It is legally wrong because a non-profit organization's purposes are generally interpreted quite broadly, and ultra vires findings are rare. In this case, the MLA's purpose includes furthering "the common interests" of teachers, which is capacious enough to cover promoting the perceived rights of colleagues in Israel and Palestine.  The "common interests" provision is conveniently omitted from the conclusory sentence of the above paragraph, which refers only to the "promotion of study, criticism, and research."  However, it is ordinarily up to the members of an organization to determine their own interests.  

Here is a sentence from the preamble of the actual boycott resolution:

 Whereas these violations include the systematic denial of academic freedom and educational rights for Palestinian scholars and students;

This is undoubtedly a one-sided partisan political judgment, and I agree with LDB that it is not in the actual interest of the MLA to boycott Israel.  But that decision is not ours (or a court's) to make, and the purported issue of "educational rights" for Palestinians can easily be made to fit under the "common interests" of MLA members.

The demand is strategically wrong because the MLA could in any event change its constitution to broaden the organization's purpose, so even a successful lawsuit would be temporary at best.

Most of all, however, the demand is politically wrong.  The strongest and most successful argument against boycott resolutions is that they constrain academic freedom.  Coercive measures such as lawsuits and legislation undermine this argument, because they in turn constrain the freedom of the academic associations to set their own policies.  Obsessive hostility toward Israel is not going to be remedied by obtaining an injunction or threatening an organization's 501(c)(3) status, as per the LDB press release and letter to the MLA:

Where a corporation acts outside of its power or capacity, as set forth in the corporate mission, the act is ultra vires and subject to injunction, liability, or both under Maryland Code, Corporations & Associations § 1-403.

The MLA’s leadership owes it to the MLA’s members, supporters, state of incorporation, and the Internal Revenue Service to do what it says it will do in the association’s charter, IRS filings, and in other corporate and taxation documents.

The LDB letter also argues that 

The boycott resolution harms study and research by dividing the membership, and excluding academics along political lines based on ethnic and national associations, thereby undermining the values that the MLA works to advance.

As true as that may be, it is a value judgment for the organization itself, and not for the courts.

Comments

[anon]

Steve

As you likely know, German scholars and jurists read "the law" broadly enough to accept the Nazi "reforms" ...

The points you make may be valid strategically and politically. It is probably correct to say that in a free country our sense should be that folks can organize and do as they please, so long as they don't run afoul of constitutionally permitted law.

There is nothing wrong with asserting that the law requires or forbids this or that; and, on the other hand, there is probably some merit in testing the boundaries of permissible conduct by organizations.

In other contexts, it seems that you might agree.

[Captain Hruska Carswell, Continuance King]

A terrorist intentionally smashes a truck into a crowded Christmas market in Germany killing scores of innocents. Let's boycott and condemn Israel. Makes sense to me.

[PaulB]

Academic groups have a long history of interjecting themselves into political matters (always on the left, of course) that are unrelated to their supposed reason for existence. During the 1970s academic groups almost universally voted to boycott states that did not ratify the Equal Rights Amendment.

The BDS resolutions passed by the usual suspects are an embarrassment to the organizations passing them even if the members therein have no idea of that, given the far left bubble they live in. However, for academics opposed to them to resort to the judicial system after having looked the other way every other time that these same groups chose to engage in unrelated political theater is an embarrassment to those filing the complaints. If you don't like this behavior, and you shouldn't, then just resign from them.

Steve, one of the lead actors in this unfortunate use of the judicial system, is a colleague of yours at Northwestern Law School. Planning to call him out by name?