In 2016, a group of then current and former members of the American Studies Association filed a lawsuit attempting to undo the ASA's Israel boycott resolution (which had been enacted in 2012). Based on a theory first advanced by my former colleague Eugene Kontorovich, the complaint alleged that the boycott resolution was ultra vires in that it violated the ASA's apolitical charter and bylaws. As I explained -- here and here -- this effort was seriously misguided from the outset. Here is what I wrote when the case was first filed:
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.
Defense motions, raising both technical and constitutional issues, began chipping away at the lawsuit almost from the beginning, leading to multiple amended complaints. For some reason, however, plaintiffs and their counsel never saw the writing on the wall. Even when Judge Rudolph Contreras gutted their case in March 2017 -- dismissing the most meaningful counts -- they claimed it as a victory, because a few minor counts were allowed to stand.
Now, however, Judge Contreras has fully dismissed remaining counts, holding that the plaintiffs cannot allege the amount of damages necessary for diversity jurisdiction in U.S. District Court. Although it would be possible for the plaintiffs to refile their damages case in the local D.C. trial court, let's hope that this very bad idea has finally run its course.
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