The American Anthropological Association has been voting this entire month on a resolution calling for the boycott of Israeli academic institutions. Today marks the final day for members to cast their votes.
Should the resolution pass, the anthropologists will be the largest US academic association to support an Israel boycott, joining a handful of smaller organizations such as the African Literature Association and the American Studies Association. These anti-Israel resolutions are being pushed by BDS (Boycott-Divest-Sanction) activists eager to demonize, demoralize and ultimately destroy the Jewish state.
Academic BDS is widely and appropriately viewed as morally perverse. As the American Association of University Professors, the Association of American Universities and many of the country’s leading scholars have stressed, any academic boycott interferes with the commitment to the free exchange of ideas that is still shared by most academics.
In addition, the singling out of Israel as the only boycott-worthy country – while other far more deplorable countries get a free pass – smacks of anti-Semitism. As Noam Chomsky (no friend of Israel) famously said about BDS, the “hypocrisy rises to heaven.”
For these good reasons, most US academic organizations have refused to even consider BDS resolutions.
Now, a lawsuit against the American Studies Association (ASA) reveals that the tactics of BDS activists are just as disturbing as the movement’s objectives. The lawsuit was brought recently by Simon Bronner, an ASA officer and an editor of the American Studies Encyclopedia, along with other respected long-time members of the ASA. It alleges widespread voting irregularities in the ASA’s purported adoption of an Israel boycott in 2013, and that certain ASA officers, including Lisa Duggan (NYU) and Curtis F. Marez (UC San Diego), violated their fiduciary duties by suppressing the rights of dissenting members. It also alleges that, even had proper voting procedures been followed, the boycott contravenes the ASA’s own organizational documents.
Under the non-profit corporate laws of the District of Columbia, where the ASA is organized, the meeting required attendance by at least 50 percent of members. This quorum requirement is designed to prevent insiders from exploiting members’ passivity to advance their own personal agendas. But only 1,252 of the 5,000 members showed up at the meeting, of whom 828 (a paltry 16% of the membership) voted to approve the boycott. The numbers simply weren’t there.
It is basic corporate law that a resolution adopted without a quorum is null and void. Contrary to the claims of the BDS activists, the ASA’s purported Israel boycott thus may never have been validly adopted.
The complaint also alleges that a number of pro-BDS ASA board members brazenly manipulated the voting process. Among other things, they shut down speech by members seeking to speak out against the boycott. Officers of an organization have a fiduciary duty to act in the interests of the organization and all of its members. By manipulating the voting process to achieve their preferred outcome, the ASA insiders appear to have violated these duties. They may well be liable in damages to the ASA, not only for out-of-pocket expenses incurred in connection with the Israel boycott, but also for any damages to the ASA resulting from their wrongful behavior.
Finally, even if there had been no violation of the voting rules or suppression of dissent, the complaint alleges that the academic boycott violation of the ASA’s own organizational documents. The ASA’s purpose is limited to “advancing the study of American culture.” A boycott of academic institutions, which by definition impedes research, scholarly exchange and teaching is outside the scope of this purpose. Indeed, it is flatly inconsistent with it.
Acting outside the permitted purpose of a non-profit is “ultra vires,” and illegal. The reason is simple: individuals who create and invest their energies and resources in a non-profit want it to remain true to its mission.
They do not want to join and dedicate their time to an organization devoted to one purpose – like the study and teaching of American culture – and then find out one day, after they have invested their life’s work in the organization, that it has become an organization devoted to advancing the pet political projects of its leaders, like bashing Israel.
Because of its critical role in protecting members of non-profits, the doctrine of ultra vires is taken seriously, including by the DC courts where the lawsuit is brought. Indeed, the need to protect members of non-profits through this doctrine is considered so important that the DC Non-Profit Act has a specific provision allowing a lawsuit to be brought to enforce it.
Each of us has worked and taught in the field of corporate law for more than a decade.
We can recall very few cases where insiders have more brazenly bent and broken corporate- law rules to advance their own private agendas. When such insiders are sued in court, their fates are predictable: they lose.
If the ASA plaintiffs can substantiate their allegations in court, we fully expect the ASA defendants to be held to account.
But whether or not the ASA plaintiffs prevail, their lawsuit has usefully opened a window on how BDS activists operate in academic organizations. They appear to flout the law, suppress dissenting voices, and – even in an academic organization that purportedly adopted an Israel boycott – can only get affirmative support of a minority of the members. After the American Anthropological Association completes its voting on an Israel boycott resolution this month, we will be curious to see whether its BDS activists have been working from the same playbook.
Jesse Fried is a professor of law at Harvard Law School. Steven Davidoff Solomon is a professor of law at UC Berkeley. They have provided advice to the plaintiffs suing ASA over its Israel boycott.