Friends of Israel have watched with alarm as the BDS — boycott, sanction, divest — movement has sought a beachhead in this country on college campuses. The BDSers have failed with most academic institutions rejecting calls to divest from companies that do business with Israel. But just as insidious are the efforts to exploit scholarly associations in order to try and ban contacts with Israeli schools and scholars. The first great success they had was with the American Studies Association, which voted to boycott Israel in 2013. Since then others, such as the National Women’s Studies Association, have followed in their footsteps. These boycotts have been roundly condemned as both discriminatory and unhelpful to the cause of peace by reputable scholars and university presidents. But that’s left those who consider these attempts to exploit any influence these groups possess to aid in a war that aims at the destruction of the Jewish state frustrated at their inability to stop a determined minority of Israel-haters from hijacking organizations whose purpose has nothing to do with the politics of the Middle East.
But it turns out there is something that can be done about it. With the help of some enterprising legal minds, a number of prominent members of the American Studies Association are suing the ASA and the leaders behind the boycott of Israel in federal court. On the surface, that sounds like a nuisance suit that might be a waste of the court system’s time. But a closer look at the effort shows that this legal attack on the BDS movement is on solid ground.
Legal scholars Eugene Kontorovich and Steven Davidoff Solomon laid out the rationale for the suit in an article in the Wall Street Journal back in December.
In passing the boycott resolution, the ASA violated the terms of its corporate charter, which just happened to be approved by Congress when it was founded and the District of Columbia Non-Profit Corporation Act that requires an organization to operate only within the provisions of its charter. Promoting a campaign to stigmatize Israelis and to deny them access to U.S. institutions is not only an act of despicable prejudice. It has nothing to do with the ASA’s purpose of promoting scholarship about American studies and therefore changes the very nature of the group.
According to Jerome Marcus, lead counsel for the plaintiffs:
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.
By stepping beyond the purposes for which it was founded in order to become a vehicle for political advocacy, the ASA violated that charter, which is not only filed with the IRS in order to maintain its non-profit status but is, in legal terms, a contract with its members. Moreover, the method by which the ASA leaders managed to pass the resolution also violated the rules stated in that same charter.
Can this effort succeed in brushing back the ASA as well as setting a precedent that may serve to deter other groups from being hijacked in this manner? While there is no way of knowing in advance how the federal courts will decide, the prospects for the suit are better than you might think.
There are legal precedents for non-profits being compelled to abide by the terms of their founding documents. The chief merit of the suit is that the violation of the ASA’s charter cannot be reasonably denied. Boycott advocates claim that the fact that the United States supports Israel brings activism against the Jewish state under the rubric of American studies but this is rubbish. Whatever one may think about Israel, waging an economic war against it or discriminating against its institutions and citizens in no way advances the purposes of scholarly work on specifically American topics. The only way for this to be conceivably possible is for the group to have transformed itself from one dedicated to scholarship into a political organization. And that is precisely what the lawsuit alleges the leaders of the group did when they pushed this resolution through to passage. But by doing so without formally amending their constitution, they violated the law.
Nor can the boycott organizers claim that the vote taken at their convention is implicit permission from the members to do just that and to change the ASA’s purpose. One problem with that claim is that the vote did not conform to the terms of the group’s bylaws. In that case, the indecent haste of the Israel-haters undermined their authority to act.
Nor is there any legal or political precedent that might give the ASA’s leadership the right to act in this manner. Contrary to what one might assume, during the campaign against the apartheid regime in South Africa neither the ASA nor most other similarly constituted groups boycotted that nation. If it had and gotten away with such conduct, it might have been reasonable for its members to think that a similar attack against Israel might be legal even if there is absolutely no analogy between the circumstances of a democratic state with a Jewish majority defending itself against foes determined to destroy it and the white minority regime in South Africa.
Moreover, the terms of the boycott are such that they leave no room for doubt as to the political purpose. The boycott is not rooted in claims of discrimination against Arabs or the manner in which democratic Israel treats Palestinians. Its terms call not merely for any Israeli institution or scholar to disassociate themselves from their country’s policies but to work to change its borders and to potentially replace it with a Palestinian state — the stated goal of Hamas and even that of the moderate Palestinian Authority that regards all of pre-1967 Israel as “occupied” territory.”
Let’s not mince words about the basic purpose of Israel boycotts. Those who advocate for them are seeking to treat the one Jewish state on the planet differently than any other country. By denying the Jewish people the right to self-determination in their ancient homeland and the right of self-defense against those who seek its elimination, the boycotters are practicing a form of discrimination. Though anti-Zionists claim not to be prejudiced against Jews, what they are doing is an act of bias. Acts of bias against Jews are anti-Semitism.
The perversion of a group that was founded to promote scholarship about America into one that aims at attacking Israel is a scandal. But as this suit shows, it is also illegal. Let’s hope that the courts heed the strong arguments in the filing and put the ASA and the entire scholarly world on notice that such illegal and prejudicial conduct will not be tolerated. At the very least, it will stand as a warning to other such associations that they cannot take part in illegal boycotts of the Jewish state with impunity.