The BDS Movement Overreaches, Now Faces A Lawsuit

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The Boycott, Divest, Sanction (BDS) movement opposes Israeli policy toward the Palestinians and maintains that Israeli policy can be pressured to change through a combination of boycotts, divestment of assets, and other sanctions. People should be entirely free to make and oppose those arguments.

What people should not, however, be free to do is to dragoon non-profit scholarly associations into their political battles against Israel (or anything else for that matter). But that is just what has occurred with the stance taken by the American Studies Association in favor of boycotting Israeli universities.

Back in 2013, the association’s National Council passed a resolution calling for the boycott. The ASA’s statement about the resolution declared:

We believe that the ASA’s endorsement of a boycott is warranted given U.S. military and other support for Israel; Israel’s violation of international law and UN resolutions; the documented impact of the Israeli occupation on Palestinian scholars and students; the extent to which Israeli institutions of higher education are a party to state policies that violate human rights; and the support of such a resolution by many members of the ASA.

Our resolution understands boycott as limited to a refusal on the part of the Association in its official capacities to enter into formal collaborations with Israeli academic institutions, or with scholars who are expressly serving as representatives or ambassadors of those institutions, or on behalf of the Israeli government, until Israel ceases to violate human rights and international law.

Then-president of the ASA, Professor Curtis Marez defended the action, stating here, “The boycott is the best way to protect and expand academic freedom and access to education.”

Whatever its philosophical or political merits might be, the ASA’s boycott against Israeli universities has nothing to do with the association’s mission — the study of American culture. It satisfies many ASA members who cannot confine their opposition to Israel to their own writing and speaking, but at the same time it irritates other members who maintain that their association has been “hijacked” by activists to make it serve their political agenda.

This involves more than just losing an argument to majority vote – about two thirds of the members voted for the boycott – because the law restricts what non-profit organizations may do. Four ASA members recently filed suit against the association, claiming that the boycott is outside the scope of its charter and thus violates District of Columbia law.

The case, Simon Bronner et al. v. The American Studies Association has been filed in the U.S. district court for the District of Columbia. Legal support for the suit comes from the Louis D. Brandeis Center for Human Rights.

Kenneth Marcus, president of the Brandeis Center says of the suit, “It’s about any association officer or director who is thinking about using their association as a tool to advance their own ideological agenda. This should send a signal that if association activists are not concerned that BDS resolutions are anti-Semitic and may be a violation of academic freedom, they should be concerned that they may violate corporations law.”

The crucial point in the case concerns the legal concept of ultra vires action, which is to say, actions that are beyond the legitimate scope of an institution. The suit contends that the boycott isultra vires and “has frustrated the legitimate aims and purposes of the ASA.” Moreover, it has caused “improper expenditure of ASA funds related to membership dealings, public relations, legal matters, and other items including employee time and effort.”

There are countless ways for advocates on both sides of the controversy over Israeli policy to make themselves heard. Unfortunately, the United States has become so utterly saturated in politics that many cannot stick to appropriate ways of expressing their arguments, but feel justified in turning every venue into a place for political grandstanding. That’s what has happened with the ASA.

 Resources will now go into litigation, producing no knowledge other than clarifying the limits of what academic associations in the District of Columbia may do.

This might seem to be a case about free speech, but Northwestern University law professor Eugene Kontorovich argues that what is really at issue is another aspect of the First Amendment – freedom of association. “There is freedom of association in America,” he states, “but part of that freedom is when people support associations with their money and their human capital, they need to know what they’re getting.”

The Bronner case speaks volumes about the degree to which academia has been taken over by people who see themselves more as change agents than scholars. They’re chiefly interested in transforming the world rather than in the search for knowledge. It wasn’t always so.

Decades ago, American professors largely stuck to teaching their subjects and kept their political convictions separate from their academic work. Read, for example, Alan Kors’ account of a graduate school experience of his, where a decidedly leftist professor rebuked the class for merely writing what they thought he wanted to hear. He then assigned the students to read and write cogently about a book he said he didn’t agree with but posed a strong challenge to progressive orthodoxy – F.A. Hayek’s The Road to Serfdom.

Sadly, things have changed dramatically and today the norm among professors, particularly in the “soft” fields, is to push their ideology day in and day out. That habit has now spilled over into scholarly associations.

College administrators usually turn a blind eye when professors let political passions trample upon their obligations to teach, but perhaps the judge who hears this case will be made of sterner stuff.

The BDS Movement Overreaches, Now Faces A Lawsuit

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