The American Studies Association (ASA) was the first significant-sized faculty association to implement the academic boycott of Israel.
A lawsuit just filed by several distinguished members challenges the ASA boycott, seeks damages against individual officers and National Council members who advanced the boycott, as well as injunctive relief, arguing that ASA exceeded its purpose defined under its constitution and bylaws. A copy of the Complaint is embedded at the end of this post.
The lawsuit could serve as a model for litigation against other faculty organizations which have been hijacked by anti-Israel activists.
Background – ASA Transformed Into Political Organization
The ASA boycott, passed in December 2013, was condemned as a violation of academic freedom by over 250 university presidents, and numerous major academic organizations. Nonetheless, the ASA has served as a model for other faculty groups seeking to pass the boycott.
ASA, meanwhile, has been completely taken over by anti-Israel activists, including some of the nastiest anti-Israel polemicists, like controversial professor Steven Salaita, who now control itsNational Council. ASA has become a political, not an educational, organization in contravention not only of its tax-exempt status but of its own constitution and bylaws.
In January 2014, I filed a Whistleblower Complaint with the IRS on the ground that ASA violated its tax-exempt status as an educational charity by engaging in the anti-educational academic boycott. I have not heard back from the IRS as to the status of my complaint.
The ASA also was forced to back down from its exclusion from its 2014 annual meeting of academic representatives of Israeli universities after the hosting hotel was informed that such exclusion based on national origin violated California’s public accommodation laws.
A group of some of the most distinguished ASA members has filed a lawsuit in federal court both on their own behalf and on behalf of the ASA itself (a so-called derivative action). A derivative action is a type of lawsuit brought on behalf of the organization itself when those who control the organization are violating either the law or the organization’s own bylaws.
In addition to naming the ASA as a “nominal” defendant, the lawsuit names several of the people in control of the ASA at the time the boycott was implemented:
- NYU Professor and ASA Past President (2014-2015) Lisa Duggan
- UC-San Diego Professor and Past ASA President (2013-2014) Curtis Marez (who infamously justified the boycott on that grounds that “one has to start somewhere”)
- UC-San Diego Professor and 2013 ASA National Council Member Avery Gordon
- Barnard College Professor and ASA programming committee member Neferti Tadiar
- UC-Davis Professor and 2013 National Council and Executive Committee Sunaina Maira
- University of Washington Professor and 2013 Executive Committee and National Council member Chandan Reddy
The “Introduction” section of the Complaint provides an overview of the nature of the case:
1. This case arises from the ASA’s adoption of an academic boycott of Israel. The ASA is a non-profit corporation with a stated mission – to advance the field of American Studies. This mission is clearly stated in the ASA’s corporate charter and in its annual filings with the IRS. (See ASA Const., art. 1 § 2, as set forth up to and including at least January 5, 2016, and ASA Form 990 (2014), at 2.) An academic boycott of a foreign country is simply outside of the ASA’s authority to act. Plaintiffs bring this lawsuit under D.C. Non-Profit Code § 29-403.04 to enjoin the ultra vires boycott and to bring related claims detailed below.
2. The ASA’s academic boycott of Israel was an overtly political act that was spearheaded by the Individual Defendants. The larger political issues, however highly charged, are not germane to the resolution of this lawsuit. The Complaint turns on straightforward legal questions: whether or not an academic boycott of Israel is an act that falls under the ASA’s “exempt purpose – advancing the study of American culture” (as the ASA describes it in IRS filings), ASA Form 990 (2014), at 2, whether the procedures governing the conduct of a vote by the ASA’s members were complied with, and whether the Individual Defendants have complied with their other legal duties as officials of the ASA.
3. Those legal questions arise in the context of an effort by the Individual Defendants to essentially convert an academic society, taking it from the hands of the scholars by and for whom it was created, and making that organization the tool of political activists.
4. For over sixty years, the American Studies Association (“ASA”) – an organization devoted to the “promotion of the study of American culture” – has served as the home for leading scholars of American studies. See former ASA Constitution art. I, § 2, as it read at the time of the Boycott Resolution and up to and including at least January 5, 2016. Accordingly, the ASA had undertaken a leading role in educating the American public on American culture. Unfortunately, in the past few years, a small group of ASA officers and councilmembers have engaged in a concerted effort to subvert and change the ASA’s purpose, converting it into a political advocacy organization with a particular focus on what they characterize as “social change” that is to be sought both within and outside of America.
5. The Individual Defendants’ goals have nothing to do with the promotion of scholarship and everything to do with the advancement of their own political views, and their goal in hijacking the ASA is to use it to advance those views, not to advance the study of American culture.
6. The Individual Defendants seek to appropriate the entire apparatus of the ASA – its name, its reputation, its office, its budget, and its membership, among other resources – and to put these assets in the service of the Individual Defendants’ political and non-scholarly goals.
7. The insurgents’ primary accomplishment thus far is an academic boycott of Israel, imposed pursuant to a Resolution (the “Boycott Resolution”) purportedly adopted by the ASA in December of 2013.
8. Defendants’ effort to reorient the ASA from an academic association to a political one (and particularly one that advocates for policy change in a foreign country) is contrary to will of a substantial number of ASA members and has torn the group asunder. Plaintiff Simon Bronner, an officer of the ASA and member of its governing council, as well as a member in good standing of the ASA, and Plaintiff Michael Rockland, a member in good standing, have repeatedly attempted to have the Defendant ASA usurpers abide by the rules and procedures set forth in ASA’s Constitution. Defendants having made clear that they will not voluntarily redress Plaintiffs’ concerns, Plaintiffs brings this action to recover damages, and to restore the ASA to its stated mission – the promotion of the study of American culture – so that the members of the ASA can once again faithfully exercise their membership.
A Press Release issued by The Louis D. Brandeis Center for Human Rights Under Law provides statements from some of those involved:
A group of distinguished professors and longtime members of the American Studies Association (ASA) today announced that they are suing ASA for its boycott of Israel….
“Until a handful of zealots appropriated our learned society, the ASA was the leading organization for the study of American culture,” stated Professor Simon Bronner, one of the plaintiffs. “Yet in 2013, a handful of anti-Israel Boycott, Divestment and Sanctions (BDS) activists aggressively steered the ASA to an organization of social change pushing a narrow political agenda.” ….
The four plaintiffs are American studies professors Simon Bronner, Michael Rockland, Michael Barton, and Charles Kupfer. Two are recipients of the ASA award for outstanding abilities and achievement. One is a founding member of a respected American Studies department and another is a member of ASA’s governing council and the editor of the Encyclopedia of American Studies. After numerous unsuccessful attempts since 2013 to address the matter within the Association, the professors filed this suit as a last resort to return the ASA to the academically-focused organization it has been for 60 years.
The lawsuit alleges ASA is in violation of the D.C. Non-Profit Corporation Act, which requires that an organization operate only within the provisions of its charter. Under D.C. law, the charter is a contract intended to protect members from those who seek to coopt a nonprofit for purposes outside the boundaries of its charter.
“This appears to be a clear example of a small group misappropriating assets raised for an agreed upon purpose and illegally using the organization to advance a completely separate and personal agenda,” stated University of California Berkeley Law School Professor Steven Davidoff Solomon, a renowned corporate law expert who served as an expert adviser to the litigation group representing the plaintiffs.
Northwestern Pritzker Law School Professor Eugene Kontorovich, a recognized expert in constitutional and international law who also served as an expert adviser to the litigation group added, “To be clear, this is not about silencing or stopping criticism of Israel, or in any way discouraging it. It is about non-profit corporations abiding by their own rules.”
In addition to violating DC law, the lawsuit reveals the defendants attempted to prevent informed discourse. In fact, no research performed with scholarly vigor was presented and the ASA refused to circulate or post to the ASA’s website several letters opposing the resolution, including one signed by approximately 70 ASA members and another opposing the resolution from eight former ASA presidents.
The plaintiffs and many ASA members, including 12 winners of the outstanding ASA Mary C. Turpie Award, raised objections to ASA’s leadership but were ignored. At least two ASA chapters refused to honor the boycott and many ASA members resigned and stopped donating. In addition, the esteemed American Association of University Professors (AAUP) and 134 members of Congress condemned ASA for its boycott. As the New York Times reported, ASA “has gone from relative obscurity to prominence as a pariah…its experience serving as a cautionary tale for other scholarly groups….”
… “Academic associations should think twice before abusing their missions and betraying the lawful purposes for which they were established in favor of the personal political agendas of their noisiest and most politicized activist members,” stated Kenneth L. Marcus, president of the Louis D. Brandeis Center for Human Rights Under Law and one of the attorneys on the case.
“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” added Jerome Marcus of Marcus & Auerbach LLC, lead counsel to the plaintiffs.
The Complaint then goes on to describe specific acts taken by the defendants to turn ASA into an anti-Israel political organization, without amending ASA’s constitution to permit such purposes
The Complaint also describes why a derivative action was needed, and why it would be futile to demand that the National Council take action because the National Council is controlled by anti-Israel activists:
69. The Council of the ASA serves as its Board of Directors. Demand upon the Council that it initiate prosecution of the claims stated in this Complaint is futile because it is apparent that a majority of the board is unwilling to impartially address the allegations raised in this complaint. Rales v. Blasband, 626 A.2d 1364 (Del. 1993). A majority of the current governing council has openly acknowledged and endorsed the boycott of Israel. Of the 23-member council at least 12 have expressed open hostility to Israel and endorsement of the ASA’s boycott of Israel. For a majority of the members, a number of documented instances of this support is noted below:
i. J. Kehaulani Kauanui was a councilmember of the ASA at the time of the adoption of the Boycott Resolution and whole-hearted supporter of that resolution. She is an advisory board member of the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI), “a U.S. campaign focused on a boycott of Israeli academic and cultural institutions, responding to the call of Palestinian civil society to join the Boycott, Divestment, and Sanctions movement against Israel.” (http://www.usacbi.org.) She has been quoted as stating that the decision by the American Anthropological Association to put an Israel boycott resolution to a full membership vote was “a huge win for keeping both Palestine and academic boycott on the table within the association.” Alex Kane, The Year Ahead in Academic Boycotts of Israel, Mondoweiss (Jan. 6, 2015), http://mondoweiss.net/2015/01/academic-boycotts-israel/#sthash.1nnpNWkc.dpuf.
ii. Steven Salaita is a vociferous advocate of a boycott of Israel, and a member of the organizing collective of USACBI. He has among other writings, penned an article on how to boycott Israel in academia. Steven Salaita, How to Practice BDS in Academe, The Electronic Intifada (May 27, 2014), https://electronicintifada.net/blogs/steven-salaita/how-practice-bds-academe.
iii. Lisa Duggan is a vociferous advocate of a boycott of Israel, and as President of the ASA defended the boycott in print. Lisa Duggan, Blowback: Academic Boycott of Israel Gives Voice to Peaceful Protest, Los Angeles Times (Nov. 13, 2014), http://www.latimes.com/opinion/opinion-la/la-ol-israel-boycott-american-studies-blowback-20141113-story.html.
iv. Robert Warrior is future President of the ASA and has repeatedly attacked Israel in print stating publicly he advocates a boycott. Robert Warrior, Palestine Without Smears: Why Israel and Natives Aren’t Natural Allies, Indian Country Today (Jan. 29, 2014), http://indiancountrytodaymedianetwork.com/2014/01/29/palestine-without-smears-why-israel-and-natives-arent-natural-allies.
v. David Roediger is an advocate of the boycott and has repeatedly defended the boycott as President of the ASA. Megan Hanna, Students and Academics Challenge the “Palestine Exception” to Free Speech in US, Mondoweiss (Dec. 21, 2015), http://mondoweiss.net/2015/12/challenge-palestine-exception/.
vi. Jodi Melamed is an advocate of the boycott, and co-authored a statement in support of the vote. Roderick A. Ferguson and Jodi Melamed, Academic Freedom with Violence, Mondoweiss (Feb. 16, 2014), http://mondoweiss.net/2014/02/academic-freedom-violence/.
vii. Nadine Naber is a vociferous advocate of boycotting Israel and a member of the Organizing Collective of the USACBI. In addition to the ASA boycott, she is also one of the anthropologists who submitted the resolution of the American Anthropological Association to boycotts Israeli academic institutions. The Resolution, Anthropologists for the Boycott of Israeli Academic Institutions, https://anthroboycott.wordpress.com/the-resolution/ (last visited Apr. 15, 2016). Additionally, she co-authored an article on the importance of boycotting Israeli academic institutions. Junaid Rana and Nadine Naber, Why Voting Matters: The American Anthropological Association’s Upcoming Vote to Boycott Israeli Academic Institutions, Anthropologists for the Boycott of Israeli Academic Institutions (Apr. 11, 2016), https://anthroboycott.wordpress.com/2016/04/11/why-voting-matters-the-american-anthropological-associations-upcoming-vote-to-boycott-israeli-academic-institutions/#more-1159. Further, she signed on to statement from Palestinian and other Arab-American scholars and writers in the wake of the ASA vote, “to endorse the academic boycott of Israeli institutions, and the backlash against it by anti-Palestinian groups.” Ali Abunimah, Palestinian, Arab American Scholars Back ASA’s Israel Boycott, Condemn “Intimidation”, Electronic Intifada (Jan. 8, 2014), https://electronicintifada.net/blogs/ali-abunimah/palestinian-arab-american-scholars-back-asas-israel-boycott-condemn-intimidation.
viii. Mari Yoshihara, an ex officio editor of the American Quarterly, was also an advocate of boycott. Following the University of Hawaii’s condemnation of the ASA vote, Yoshihara signed onto a response condemning the University administration, and in support of the ASA resolution in support of the academic boycott of Israel. Adam Horowitz, University of Hawai’i Faculty Responds to Administration’s Condemnation of ASA Boycott Resolution, Mondoweiss (Feb. 27, 2014), http://mondoweiss.net/2014/02/administrations-condemnation-resolution/#sthash.gJzrxnhc.dpuf. Further, in 2009, she signed onto a letter addressed to President Obama on the Lebanese Campaign for the Boycott of Zionism. Lebanese Campaign for the Boycott of Zionism: In Solidarity with the Palestinian Call for BDS, BDS News (Jan. 12, 2009), https://boycottzionism.wordpress.com/bds-news/page/262/.
ix. Martin Manalansan was a member of the ASA Council who recommended the boycott. William A. Jacobson, American Studies Association Leadership Recommends Academic Boycott of Israel, Legal Insurrection (Dec. 4, 2013, 9:50 PM), http://legalinsurrection.com/2013/12/american-studies-association-leadership-recommends-academic-boycott-of-israel/. He co-authored an article which stated, “we have considered our struggle to be part of the overall BDS movement. We strongly believe in responding to the call to action in the fight against the violent and inhumane treatment of the Palestinian people by the Israeli state. . . .” Martin Manalansan and Ellen Moodie, “Waiting” in the Neoliberal University: The Salaita Case and the Wages of an Academic Boycott, Savage Minds (July 28, 2015), http://savageminds.org/2015/07/28/waiting-in-the-neoliberal-university-the-salaita-case-and-the-wages-of-an-academic-boycott/.
x. Marisol LeBrón, an ASA student councilor, was a member of the ASA Council that recommended the boycott. William A. Jacobson, American Studies Association Leadership Recommends Academic Boycott of Israel, Legal Insurrection (Dec. 4, 2013, 9:50 PM), http://legalinsurrection.com/2013/12/american-studies-association-leadership-recommends-academic-boycott-of-israel/.
xi. Christina Hanhardt, an ASA Council Member, was an advocate of the boycott. In 2011 she signed a letter asking organizers of an international tourism conference in Berlin to boycott Israeli participation at the conference, accusing Israel of “pinkwashing.” The letter said, “We would like to bring your attention that you are in danger of supporting apartheid policies of the Israeli government which are infringing upon the human and civil rights of the Palestinian population. We urgently appeal to you not to blindly side with the official Israeli public relations policies, which looks to distract the international public from the colonial, occupation and settlers policies through a polished image of Israel.” Open Letter to Those Responsible for the ITB, BDS Kampagne (Mar. 10, 2011), http://bds-kampagne.de/wp-content/uploads/2011/03/110310_OpenLetter_ITB_EN.pdf.
x. Sunaina Maira is a member of the Organizing Committee of the USACBI, and featured speaker for the USACBI, and one of the Individual Defendants here.
Interestingly, the Complaint seeks monetary damages against the individual defendants:
74. As members of the Governing Council of the ASA, the Individual Defendants owe the ASA and its members the highest duties of care, loyalty, good faith, and candor. Moreover, these duties include the obligation to fairly represent the interests of the ASA and its members and to abide by the dictates of its organizational documents and the D.C. Non-Profit Act. The Individual Defendants’ duties also include the duty not to engage in conduct that is in their own self-interest and to instead faithfully represent the mission of the ASA.
75. However, as explained above, the Individual Defendants have breached their fiduciary duties and failed to act in good faith by pushing through the Boycott resolution and manipulating the process to obtain the alleged approval. As a result of breaching their fiduciary duties, the Individual Defendants have harmed the ASA and its members and are liable to the ASA for the damages incurred. Since their conduct was not in good faith, it is not exculpated by § 29–306.31 of the D.C. Non-Profit Act. Plaintiff is entitled to recover damages from the Individual Defendants incurred by the ASA related to this breach of fiduciary duty.
The Complaint also seeks injunctive relief:
PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs pray that this Court enter judgment against the Defendants and in favor of the Plaintiffs, and award:
1) A declaration that the vote of the ASA membership with respect to the Israel boycott was ultra vires, in breach of Defendants’ contractual obligations or of the D.C. Non-Profit Corporations Act, and wasteful;
2) A declaration that the Individual Defendants breached fiduciary duties owed to the ASA;
3) A permanent injunction enjoining and restraining the ASA from taking any action that does not strictly follow the statement of purpose in Defendant ASA’s Constitution;
4) A permanent injunction enjoining and restraining the ASA from taking any action to enforce the Israel Boycott purportedly adopted by the ASA’s National Council and the ASA;
5) A permanent injunction enjoining and restraining the ASA from making any payments or expenditures in violation of the Defendant ASA’s Constitution, including in support of the Israel boycott;
6) Actual damages on behalf of the ASA from the Individual Defendants, jointly and severally, in an amount to be determined at trial but in excess of $75,000;
7) The costs and disbursements of this action, including
attorneys’ and experts’ fees; and
8) Such other and further relief as is just and equitable.
ASA did not respond to a request for comment.
We will follow the lawsuit developments.