American Studies Association Sued for Academic Boycott

Last Updated: July 18, 2019

ASA Logo .jpeg

In March 2016, the Louis D. Brandeis Center, an Israel advocacy organization, sued the American Studies Association (ASA) over its resolution to boycott Israeli academic institutions. Litigation is ongoing.

ASA members passed the resolution in 2013 by a 2 to 1 margin after months of open debate. In the aftermath of the vote, Israel advocacy groups undertook a widespread campaign intended to undermine the ASA’s resolution and deter other associations from following suit. The backlash included university officials condemning the resolution, legislative attacks on academic boycotts, lawsuit threats, a complaint to the IRS, and a slew of hate mail directed at individual ASA members.

The Brandeis Center lawsuit argued that in adopting the resolution, which was voted on by an overwhelming democratic majority, the ASA operated beyond its corporate charter and breached its contractual obligations to its members. The lawsuit sought to enjoin the boycott, in addition to monetary damages and attorneys’ fees.

More broadly, the lawsuit aimed to deter academic associations from adopting boycotts for Palestinian rights. The Brandeis Center’s president, Kenneth L. Marcus became Trump’s head of civil rights for the U.S. Department of Education in 2018.

The lawsuit targeted members of the ASA who were also part of the US Campaign for the Academic and Cultural Boycott of Israel (USACBI). As USACBI explained,  “Although white scholars (a number of them Jewish) also belong to USACBI and were active in the process to pass the ASA resolution, nearly all of those sued` were scholars of color and/or queer academics, highlighting the racist and homophobic dimensions of this legal assault.”

In March 2017, a federal judge dismissed the Brandeis Center’s major claims, holding that the ASA did not operate outside its charter since “the boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians,” and thus was passed for academic purposes.

In November 2017, the Brandeis Center filed a new complaint, seeking to fix their unsuccessful legal theory and to add Steven Salaita and three others, as new defendants. The Brandeis Center doubled down on the harassment campaign in a media blitz, and in legal documents, accusing professors in McCarthyist terms of “plot[ing] to take-over the ASA by stealth” and planning a “cabal” to “infiltrate” the ASA.

University of California Professor David Lloyd, whose emails are cited by the Brandeis Center as evidence of the alleged stealth takeover, described the accusations as a “lurid fantasy” and noted that “Several years of very public and open grassroots organizing preceded the resolution’s passing, including numerous advertised panels on the topic.”

In February 2019, the court dismissed the case, determining that the plaintiffs were unable to explain how they were injured by boycott. The court found it was not legally possible for the Plaintiffs to establish that they had suffered more than $75,000 in damages, which would be required for the case to remain in federal court. Plaintiffs then appealed the federal case to the D.C. Circuit Court of Appeals, and they filed a second case in the local D.C. Superior Court in March 2019. 

The ASA and the individual professor defendants asked the D.C. Circuit Court of Appeals to again dismiss the federal case in April, 2019. That decision is pending as of July, 2019. 

The defendants asked the D.C. Superior Court to dismiss the local lawsuit under D.C.’s Anti-SLAPP Act, which provides for early dismissal of cases deemed to be “strategic lawsuits against public participation.” The Brandeis Center litigation targeting the professors who supported the ASA boycott resolution is a classic “SLAPP” – aimed at punishing the professors’ advocacy on an issue of public interest: boycotts for Palestinian rights. The hearing on the anti-SLAPP motions to dismiss was held in D.C. Superior Court on July 17, 2019.

The firm Whiteford, Taylor & Preston L.L.P represents the ASA, along with the majority of individual defendants. Mark Kleiman represents individual defendants Jasbir K. Puar and J. Kehaulani Kauanui. The Center for Constitutional Rights represents Steven Salaita. Palestine Legal provided legal and advocacy support to the ASA in the run-up to the vote and in the aftermath of the resolution’s success, as Israel advocacy organizations launched vigorous campaigns to punish the ASA and deter other academic organization from passing similar resolutions protesting Israeli policies. Read CCR’s case page with links to legal documents here.

Timeline

Dec. 13, 2013: ASA membership vote by an overwhelming democratic majority – 66 percent – after months of open debate, to pass a resolution endorsing a boycott of Israeli academic institutions in support of Palestinian rights.

2013-14: ASA members receive thousands of hate mail messages in response to the resolution. Some messages include violent imagery, and many contain racist, homophobic rhetoric, and legal threats. Professors and American Studies departments associated with the ASA are targeted by campaigns from donors and alumni demanding that university administrators defund American Studies departments or cut off their ability to participate in the ASA. 

Jan., 2014: The first of over 100 anti-boycott bills is introduced in New York, in response to the ASA resolution. That bill, is later withdrawn and amended. The amended bill would reduce state aid to universities in the amount spent to fund travel, lodging or membership funds in an organization that had endorsed a boycott of Israel. The New York Times called the bill “an ill-considered response to the American Studies Association resolution [that] would trample on academic freedoms and chill free speech and dissent.” The bill fails to pass, but in in June 2016, New York Governor Cuomo signs an anti-BDS executive order, As of January 2018, 24 states have enacted anti-BDS laws.

Jan. 14, 2014: William Jacobson, Zionist activist, law professor, and “Legal Insurrection” blogger, submits a complaint to the IRS to challenge the ASA’s tax-exempt status. The complaint argued that the ASA’s academic boycott is not consistent with its educational purpose and goes against public policy, and the IRS should therefore strip the ASA of its tax-exempt status. To date, the ASA has not received any notification that the IRS responded. 

Jan. 14, 2014: The Mossad-linked Shurat HaDin Israeli Law Center threatens to sue the ASA unless the organization “immediately take all necessary steps to cancel the boycott of Israeli institutions and academics.” Shurat HaDin claims that the academic boycott resolution is antisemitic, illegal and discriminatory. 

Jan. 21, 2014: Palestine Legal and the Center for Constitutional Rights respond on behalf of the ASA, writing to Shurat HaDin to inform them their threat was based on unsupported allegations, and that the ASA’s boycott resolution is core political speech, protected by the First Amendment. The letter emphasizes that the ASA resolution is grounded in the same anti-discrimination principles as other historical divestment and boycott strategies such as the South Africa divestment movement and civil rights boycotts in the US south. To date, no lawsuit has been filed. 

Apr. 18, 2016: The Brandeis Center sues the ASA, claims that by passing the boycott resolution, the ASA operated beyond its corporate charter, wasted corporate assets and breached its contractual obligations to its members.

June 9, 2016: ASA moves to dismiss the Brandeis Center lawsuit, arguing that the ASA was within its rights to pass the resolution, and that it did not breach the rights of its members.

June 23, 2016: Brandies Center amends its lawsuit.

July 7, 2016: ASA renews its motion to dismiss the Brandeis Center lawsuit.

July 20, 2016: A second lawsuit is filed by organization called “Athenaeum.” The lawsuit argues that the ASA’s boycott resolution constitutes unlawful discrimination in violation of New York Human Rights Law. The lawsuit is dismissed on the basis that no one was discriminated against.

Mar. 21, 2017: The court dismisses Brandeis Center’s ultra vires claim that the ASA operated beyond its corporate charter. The court also dismisses all of plaintiffs’ derivative claims for breach of fiduciary duty, but allows the case to proceed to discovery – a preliminary stage in the litigation process – on the breach of contract, corporate waste, and D.C. Nonprofit Corporation Act claims.

May 12, 2017: Brandeis Center moves to strike language from the ASA’s answer to the lawsuit that one of the plaintiffs engaged in a “rant” where he expressed “hatred” towards members of the ASA who put forth the resolution. In a win for the ASA, the judge denies the Brandeis Center’s request the same day, calling their motion a “time waster.”

Nov. 9, 2017: Brandeis Center files a motion asking the court for permission to amend its lawsuit, adding Steven Salaita and 3 other professors as individual defendants, in addition to new legal theories.

Nov. 27, 2017: ASA opposes Brandeis Center’s motion to amend its lawsuit, arguing the plaintiffs are using meritless litigation as a platform to “mine for data with which to harass anyone whose views differ from the Plaintiffs’ and their supporters.”

Mar. 7, 2018: The court stays the case for a month pending additional briefing from both parties with respect to whether the court has jurisdiction to decide this matter. If there is a finding of jurisdiction, plaintiffs will be permitted to amend their lawsuit to add four new individual defendants, in addition to new legal theories. If there is no jurisdiction, the case will be dismissed.

July 5, 2018: The court concludes it has jurisdiction to decide the matter because it could be “legally possible for plaintiffs to recover $75,000 if they prevail in the action,” and directs defendants to respond to the Brandeis Center’s second amended complaint.

February 4, 2019: The court dismisses the lawsuit, writing that “nowhere” could the plaintiffs, who opposed the boycott, explain how they were injured by the boycott. An injury was a necessary requirement for the lawsuit to go forward.

March 5, 2019: Plaintiffs appeal the federal case to the D.C. Circuit Court of Appeals. 

March 11, 2019: Plaintiffs file a second, local, lawsuit in D.C. Superior Court.

April 19, 2019: ASA and individual professor defendants file motions asking the federal D.C. Circuit Court of Appeals to dismiss the case. 

May 6, 2019: ASA and individual professor defendants file motions asking the local D.C. Superior Court to dismiss the case because it violates D.C.'s Anti-SLAPP Act, and other reasons. 

July 17, 2019: Hearing on anti-SLAPP motions and motions to dismiss in local D.C. Superior Court.

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