In an important court-filing, Scholars for Peace in the Middle East (SPME) urged the District of Columbia Court of Appeals to reject an effort by Boycott, Divestment and Sanctions (BDS) activists to shut down a lawsuit against the American Studies Association (ASA) for its boycott of Israel. The lawsuit, filed by the Louis D. Brandeis Center for Human Rights Under Law and others on behalf of four of the nation’s most distinguished professors of American Studies, details how a handful of zealots hijacked the academic association to push a virulently anti-Israel political agenda which damaged ASA and violated the law. SPME filed its amicus brief on August 14, 2020 in support of the professors’ lawsuit.
The lawsuit was originally filed in 2016 after BDS activists manipulated the ASA into adopting a boycott of Israeli academic institutions in 2013. According to the Brandeis Center, the boycott was a concerted effort by a small number of BDS activists, including founding members of the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI) and some of the most notorious supporters of the anti-Semitic BDS movement, such as Defendants Steven Salaita and Jasbir Puar, who used their leadership positions in ASA to make anti-Israel activism the central focus of the Association. ASA’s stated mission has nothing to do with boycotting a foreign nation and thus the suit alleges its adoption violates the law that governs nonprofit corporations. The professors argued in their lawsuit that the BDS activists circumvented corporate governance protocols, damaging the ASA’s financial well-being and reputation, and subverting the organization’s apolitical, scholarly mission in order to advance their radical anti-Israel agenda.
The Brandeis Center litigation has led to numerous important discoveries, including documents that reveal the BDS activists’ covert scheme to pack the ASA’s national council with directors whose primary goal was to establish an academic boycott of Israel. They also reveal the shenanigans by which BDS activists manipulated the ASA’s boycott vote, freezing the rolls of the ASA membership to minimize the number of opponents able to vote. Documents produced in litigation also showed how costly the BDS vote was to the ASA, detailing hundreds of thousands of dollars withdrawn from the ASA’s trust fund and showing, through the ASA’ tax return, an association that had been plunged deeply into the red.
SPME’s intervention was necessary to counter recent attempts by Palestine Legal to have the lawsuit dismissed by the court. Palestine Legal charged that the Brandeis Center’s work on this lawsuit has deterred other academic associations from capitulating to similar demands by BDS activists. Specifically, Palestine Legal complained to the court: “Indeed, from 2013-2015, eight other academic associations endorsed academic boycott resolutions. Since the Brandeis Center first sued the ASA in April 2016, none, to our knowledge, have passed.”
Palestine Legal was responding to the Superior Court of the District of Columbia’s denial, in 2019, of the defendants’ special motion to dismiss plaintiffs’ complaint under D.C.’s Anti-SLAPP law. The law aims to deter frivolous lawsuits that are brought in order to intimidate or silence those who exercise their constitutional rights of free expression and petition under the First Amendment. The court held that the professors stated a claim with respect to six of their claims, rebuffing defendants’ effort to avoid a trial.
When defendants appealed, arguing that the court should apply the Anti-SLAPP Act on a claim-by-claim basis and award attorney’s fees on any claims that were dismissed, Palestine Legal filed an amicus brief in support of defendants, claiming plaintiffs’ lawsuit should be dismissed under the Anti-SLAPP Act because it is intended to chill pro-Palestinian speech. And that is when SPME decided it was time to step in.
SPME’s brief points out that plaintiff’s lawsuit seeks to hold defendants accountable for unlawful conduct, including corporate waste, mismanagement and breach of fiduciary duty. The case is not about defendants’ speech. Indeed, the Superior Court found that plaintiffs’ claims have merit, noting, “Plaintiffs have successfully demonstrated that they have evidence suggesting that there may have been a breach of fiduciary duty and that the resolution was improperly passed, costing the ASA to lose membership and funds.” The defendants, in contrast, seek to shut down a case involving legitimate legal grievances. As SPME’s brief argues, denying plaintiffs their right to access the court in this fashion is unconstitutional. The ASA defendants hope to shield their illegal conduct from censure by claiming they are merely engaged in speech.
SPME’s brief further argues that the abusive tactics advocated by the defendants and amicus Palestine Legal, if implemented, would dissuade civil rights advocates like the Brandeis Center from bringing legitimate lawsuits and making novel arguments to advance civil rights, for fear of incurring attorney’s fees if unsuccessful. As we state in our brief:
Plaintiffs like the Brandeis Center that advocate for civil rights are in particular need of “breathing space” in the courtroom. The novel arguments of civil rights advocates are often deemed meritless, if not frivolous, in their own times. And it is only through tireless persistence that these arguments eventually win the day.
Indeed, anyone concerned about holding BDS activists accountable when they violate the law in order to advance their anti-Israel agenda, has an interest in ensuring that plaintiffs like the professors in this case can have their day in court. SPME and the Brandeis Center will keep you apprised of legal developments.