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Employment Law Firm: Drop American Studies Assn membership or risk Title VII liability

Employment Law Firm: Drop American Studies Assn membership or risk Title VII liability

Advice to Universities: “Drop institutional memberships in organizations that advocate anti-Israel boycotts.”

Based on its Quarterly publication, the American Studies Association as of last year had 80 Institutional Members.

Since ASA announced its academic boycott of Israel, we have confirmed that 6 universities have dropped their Institutional Memberships, while 11 more have denied being Institutional Members despite being so listed.

The updated list appears at the very bottom of this post.

While over 190 university presidents have denounced the ASA academic boycott of Israel, many have decided either to keep the membership or to leave the decision to individual American Studies Departments.  Some others are switching the membership listing to their American Studies Departments, rather than the full University name.

Anything other than a full termination of Institutional Membership, however, opens up the universities to legal liability for national origin discrimination under Title VII of the Civil Rights Act of 1964.

That potential liability is explained in a recent article by two attorneys at the Seyfarth Shaw law firm.

Seyfarth Shaw is an 800+ international law firm with a 380+ attorney labor and employment law practice.

On January 7, 2014, two Seyfarth Shaw attorneys published an article regarding the potential liability of university employers arising out of the ASA academic boycott.

In their article, they make points similar to those I made in my challenge to ASA’s tax-exempt status: The boycott constitutes national origin discrimination.

While I approached it from the angle of whether such discrimination is a valid tax exempt purpose (it’s not), the Seyfarth Shaw lawyers approached the problem from the perspective of employer liability under Title VII.

Here are relevant portions of the Seyfarth Shaw analysis (emphasis added), including the recommendations of dropping institutional membership in ASA and evaluating whether boycott advocates can serve on hiring and tenure committees.

Academic boycotts and anti-discrimination

laws: tips to protect academic employers

Seyfarth Shaw LLP
Dov Kesselman and Jacob Oslick

January 7, 2014

*     *     *

Do the anti-Israel boycotters boycott Title VII?

In the United States, the major boycotts to date are largely directed against institutions, and affect just a few individuals. The ASA’s boycott, for instance, singles out only “Israeli academic institutions” and “scholars who are expressly serving as representatives or ambassadors from those resolutions.” It purports to exempt “individual Israeli scholars engaged in ordinary forms of academic exchange.” [WAJ Note – the boycott actually is broader, see my IRS filing.] Additionally, compliance with the boycott is voluntary, because the ASA cannot require its members to do anything.

But even these kinds of boycotts pose risks to employers. For example, would a proposed visiting professor from Tel Aviv University be a “representative” of his institution, or just an individual scholar “engaged in ordinary forms of academic exchange?” And would a boycott proponent fight against hiring such a person, based on the boycott? The ASA does not say. At most, it merely asks its members to “act according to their convictions” when dealing with “complex matters.” Those “convictions,” to the extent that they lead to a decision-maker at a university reaching an employment decision about an Israeli candidate, can quickly lead to the university’s own liability for national origin discrimination.

Needless to say, this could cause serious problems for academic employers. In most employment cases, it is rare for a plaintiff to find direct evidence of discriminatory intent. But, arguably, a professor’s endorsement of the ASA or other organizations calling for a boycott, or his or her public statements favoring boycotts that target Israelis, could provide precisely this kind of evidence. Even worse, some university departments belong to groups such the ASA on a department-wide basis. In employment litigation, these institutional memberships could be interpreted — rightly or wrongly — as a tacit endorsement by the university itself of anti-Israeli discrimination. These positions can easily bleed into intra-departmental decisions having nothing to do with Israeli academics. It is, in fact, easy to imagine that boycott-favoring faculty serving on tenure committees might consciously or subconsciously take into account an American professor’s religion as an indicator of their views on Israel, quickly leading to religious discrimination claims. And, even where a decision not to hire or promote a particular faculty member had nothing to do with a boycott and everything to do with legitimate professional failures, skillful lawyers will have been handed ample ammunition to question the true motivation.

Tips for employers

The problem is real. And yet the very academic freedom that renders academic boycotts inappropriate also serves to protect those who call for such boycotts. So what is an academic employer to do to defend itself from employment claims arising out of anti-Israel boycotts? Here are some pointers:

  • Drop institutional memberships in organizations that advocate anti-Israel boycotts. Four universities have already done so: Brandeis, Indiana University, Kenyon College, and Penn State Harrisburg. Many other universities have publicly stated their opposition to the boycott. While individual professors may choose to espouse highly-charged positions even if they risk bordering on discrimination, employers should not.
  • Consider carefully who is serving on hiring committees, tenure committees, and in other roles where they will have “decision-making” power.
  • Publicly reiterate where necessary that the university as a whole will not discriminate or tolerate discrimination against any group or national origin.
  • Similarly, make it clear that shunning a colleague based on his or her national origin violates the university’s hostile work environment policies.
  • Discipline professors who ignore this warning and refuse to interact with Israelis (or any other national origin, race, or religion).
  • Thoroughly investigate any disparate treatment or harassment complaints raised by professors and students.

These measures will not provide total immunity to an academic employer. But they will go a long way towards minimizing risk, while promoting equal treatment for all, regardless of national origin. Neither the law, nor any sensible university, would tolerate a boycott of African-Americans, Jews, or homosexuals. Academic employers must be equally vigilant with regard to boycotts that target national origin.

This is all good advice. University Presidents likely have not considered this legal liability in making their decisions, focusing on the academic freedom aspects of the boycott.

The Presidents and Trustees of the universities below need at least to understand that the ASA boycott has placed their institutions in legal jeopardy.

(Contact information for many universities can be found at the Crowdsourcing post)

AMERICAN STUDIES ASSOCIATION – INSTITUTIONAL MEMBERS 2013

Alberta Institute for American Studies
Bard Graduate Center
Boston College
Boston University
Brandeis University [dropped]
Brigham Young University
Brown University [deny]
California State University, Fullerton
California State University, Long Beach
Carnegie-Mellon University [deny]
Centre for the Study of the United States
College of Staten Island, CUNY
College of William and Mary
Cornell University
Crystal Bridge Museum of American Art
CUNY Graduate Center, American Studies Certificate Program
DePaul University
Dickinson College
Eccles Centre for American Studies, The British Library
Emory University
Fordham University
Franklin College of Indiana
George Washington University
Georgetown University
Hamilton College [deny]
Harvard University
Historical Society of Western Pennsylvania
Indiana University [dropped]
Kennesaw State University
Kenyon College [dropped]
Lehigh University
The Long Island Museum
Michigan State University, English Department
Middlebury College
New York University
Northwestern University [deny]
Penn State University, Harrisburg [dropped]
Princeton University
Ramapo College
Richard Stockton College of New Jersey
Rider University
Roger Williams University
Rowan College of New Jersey
Rutgers University, New Brunswick
Saint John Fisher College
Saint Louis University
Saint Olaf College
Skidmore College
Smith College
Sophia University
St. Francis College
Stanford University, American Studies Program
Stanford University, Green Library
Stetson University
Temple University [deny]
Trinity College, Hartford, CT. [deny]
Tufts University [deny]
University of Alabama [deny]
University of California, San Diego
University of Delaware
University of Hawaii
University of Iowa
University of Maryland, Baltimore County
University of Minnesota
University of Mississippi [deny]
University of New Mexico
University of North Carolina, Chapel Hill
University of Notre Dame
University of Oklahoma Honors College
University of Southern California [deny]
University of Southern Mississippi
University of Texas, Austin
University of Texas, Dallas [dropped]
University of Utah
University of Wyoming
Vanderbilt University
Vassar College
Washington State University
Washington University, St. Louis
Western Connecticut State University
Willamette University [deny]
Winterthur Program in Early American

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Comments

I’d say bully for conservatives finally using lawfare to fight back, but this isn’t really a conservative issue. I think conservatives, liberals and the liberal sub-group “Republicans” can all agree that academic boycotts against entire countries are wrong.

It took me three searches to learn a little history of what university boycotts have lead to. Who wants to wait to see how strong the correlation is between anti-Israel boycotts and anti-Jewish boycotts? Academic boycotts have a sorry history!

http://www.uni-leipzig.de/~psycho/hist_eng.html
In April 1935 Felix Krüger became the rector of the University of Leipzig…. Eight months later, he is subpoenaed…. The student association filed a complaint about professors who had been affirmative about Jews. Krüger … had called an altruistic German erudite, Heinrich Hertz, “a noble Jew.” Krüger defended himself by pointing out that he had never employed a Jewish assistant during his tenure. He was told to abdicate his position … in January 1936.

http://www.ushmm.org/wlc/en/article.php?ModuleId=10005681
The Nuremberg Laws of 1935 heralded a new wave of antisemitic legislation that brought about immediate and concrete segregation: Jewish patients were no longer admitted to municipal hospitals in Düsseldorf, German court judges could not cite legal commentaries or opinions written by Jewish authors, Jewish officers were expelled from the army, and Jewish university students were not allowed to sit for doctoral exams.

I must confess to being worried about this item:

“Discipline professors who ignore this warning and refuse to interact with Israelis (or any other national origin, race, or religion).”

How long before some ASA-types turn this on its head and start demanding that muslim scholars be given equal time at largely Jewish universities like Brandeis? Or other similar scenarios? Calls to discipline University Hillel Rabbis because they don’t approve a muslim lecturer to deliver talks on the Koran in the Hillel building?

Please tell me why I am wrong to be concerned.

    sybilll in reply to sultanp. | January 14, 2014 at 10:58 pm

    I understand your concern, but at my daughter’s University, muslim scholars, Bill Ayres and Luis Farakkan have already been allowed to speak. I assume the speakers of which you are concerned come to speak to either a) make money and/or b) to influence their audience. If no one comes, a) and b) are for naught.

    casualobserver in reply to sultanp. | January 15, 2014 at 12:42 am

    I suspect you could be punished for denying Muslim speakers or blocking Muslim study simply due to religion. That is, after all, the point of the ASA action – to ban solely on the basis of being Jewish.

[…] came across this article while keeping tabs on what Legal Insurrection has been posting about the ASA boycott. Its title is “Academic boycotts […]

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