What Counts as a Victory against BDS? [UPDATED] [UPDATED]

My friend and colleague Eugene Kontorovich is the originator of the ultra vires theory of combating academic boycotts of Israel.  First raised in an oped in the Wall Street Journal, and then summarized on the Volokh Conspiracy, Eugene and his coauthor argued that academic associations lack the corporate power to pass boycott resolutions because their charters typically limit their authorized purposes to something like “the promotion of knowledge and research.” Because “a boycott by definition restricts study and research,” they continued, “individual members can sue to have a court declare [boycott resolutions] invalid. The individuals serving on the boards of these organizations may be liable for damages.”

Even though I am staunchly opposed to academic boycotts, I voiced my objection to the tactic here, explaining that an ultra vires lawsuit (1) would feed into the notion of Zionists as establishment bullies; (2) would be unlikely to be accepted by a court, given the flexibility of most nonprofit association charters; and (3) even if successful, a defendant organization could simply amend its charter to make a boycott fall within its authorized powers.

Soon enough, however, a lawsuit was filed against the American Studies Association in the U.S. District Court for the District of Columbia, seeking an injunction against the ASA’s boycott of Israeli academic institutions.  The complaint brought multiple causes of action, primarily claiming that an “academic boycott of a foreign country is simply outside of the ASA’s authority to act;” and also alleging voting irregularities at the ASA meeting that approved the boycott. 

I criticized the lawsuit here, pointing out its legal and other weaknesses.  The main problem is that Article I, § 2 of the ASA constitution 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)

The ASA could therefore argue that the boycott would in fact strengthen relations with institutions in many more countries than it would restrict. 

The District Court has now ruled on the ASA’s motion to dismiss the case.  According to Kontorovich, writing again at the Volokh Conspiracy, the ruling was a victory for the plaintiffs because the court “denied the defendants’ demands for dismissal of most of the plaintiffs’ causes of action (waste, breach of contract and violation of the D.C. Nonprofit Corporation Act).”

In fact, however, the court cut the heart out of the plaintiffs’ case by strongly rejecting the ultra vires theory.  Here is what Judge Rudolph Contreras had to say about it (citations omitted; paragraph breaks added):

In support of their first theory—that the adoption of the boycott resolution was an ultra vires act because it violated the express purpose of the ASA—Plaintiffs cite to the ASA’s “organic documents” that allegedly provide that “[t]he corporation is organized exclusively for education and academic purposes,” and Article I § 29 of the ASA Constitution, which provides that “[t]he 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.”

Neither of these provisions “expressly prohibited” the boycott resolution, and the ASA was within its powers to do so. The boycott resolution “endorse[d] and . . . honor[ed] the call of Palestinian civil society [to] boycott . . . Israeli academic institutions.” As shown by the preamble of the resolution, the ASA passed the boycott resolution because, in its view, Israel suppresses the academic freedom of Palestinian scholars and students, and the United States “plays a significant role in enabling” that suppression. The ASA also did so as a show of solidarity with those scholars.  The boycott resolution was, therefore, enacted for “academic purposes,” at least to a point where it was not in violation of the ASA’s founding documents.

It also was reasonably in furtherance of the ASA’s purpose of advancing education and the promotion of the study of American culture through encouraging research, teaching, and strengthening relations among persons and institutions in the United States and abroad. The boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians. [Emphasis in original]

This was a predictable result.  The ultra vires count was the only one that could have a lasting impact on the ASA boycott, and the court rejected it in no uncertain terms.

It is true that Judge Contreras left a few minor causes of action intact, including the claim about voting irregularities – but that will at most result in a re-vote at the next ASA meeting, and a further rallying point for the boycott forces.

Boycotts of Israeli academic institutions are discriminatory, hypocritical, and anti-intellectual.  The politicization of any U.S. academic organization is regrettable and misguided.  I continue to believe, however, that the way to oppose BDS is through principled argument, not judicial intervention. 

UPDATE: The Louis D. Brandeis Center has issued this press release calling the ruling an "Initial Victory for Plaintiffs in Path-Breaking Lawsuit against ASA for Its Boycott of Israel."

SECOND UPDATE: Palestine Legal has issued its own press release titled "Court Dismisses Major Claims against American Studies Association."

Comments

[Deep State Special Legal Counsel]

Syria gasses 75 innocents. Let's condemn Israel for defending herself against neighbors pledged to her destruction. It's easy to condemn Israel. Why? Because Israel is a democracy and won't manically lash out and threaten the World without provocation. Now, lets imagine if these academics boycotted Syria, Iran or some other tin horn failing terror State. In retaliation, these guys would run a truck into the Marriot during a lecture....