We have covered extensively the anti-Israel academic boycott passed by the American Studies Association, including yesterday when Doron Ben-Atar, a Fordham University History Professor, revealed that he had been subjected to “religious discrimination” charges by the pro-boycott head of Fordham’s American Studies Department, Micki McKnee, after he called the boycott anti-Semitic. Ben-Atar was cleared of that charge but faces administrative threats for vowing to “fight” the ASA boycott.

The ASA is having its annual meeting in Los Angeles in early November at the Westin Bonaventure. The ASA has stated that it will apply its boycott rules to exclude from the conference Israeli academic institutions and any individual Israeli academics who are there on behalf of their institutions or who hold administrative capacity (e.g. Dean). Only individual Israelis who pass the test of not being there in a representative capacity will be allowed to attend.

These rules are unique to Israelis, and constitute national origin discrimination and potentially religious discrimination in violation of California’s expansive anti-discrimination and public accommodation laws. That puts the Westin Bonaventure at legal risk, because those discriminatory rules are being applied at a conference on its premises.

The American Center for Law and Justice, headed by Jay Sekulow, has sent a letter to the Westin Bonaventure, its owner and operating management, alerting them to the Westin Bonaventure’s legal risk and obligations. The letter is posted on the ACLJ website and press release, and reads in part:

The ACLJ is deeply concerned that unlawful discriminatory exclusionary policies will be implemented by the ASA as to who is permitted to attend the Annual Meeting at the Westin Bonaventure.

As set forth below, in connection with ASA’s Academic Boycott of Israel (“Boycott”), all Israeli academic institutions and academics acting in a representative capacity will be barred from participation in the ASA’s Annual Meeting. No other national origin group is subjected to this exclusionary policy and litmus test as to representative capacity. Moreover, since the overwhelming majority of Israelis targeted by the boycott are Jewish, the exclusionary policy is likely to have a disparate impact on Jewish Israelis—thereby discriminating on the bases of race and religion.

The purpose of this letter is to put the Westin Bonaventure and Interstate Hotels, their owners, administrators, and employees on notice of the nature of the Boycott and, more importantly, the liability under California’s Unruh Civil Rights Act for aiding the ASA in enforcement of this unlawful discriminatory policy at the Annual Meeting on the premises of the Westin Bonaventure….

We hope that the situation will not culminate in litigation, and the Westin Bonaventure and Interstate Hotels will do the right thing and fulfill their legal obligations to prevent unlawful discrimination before it happens at the Westin Bonaventure.

In light of the serious legal implications discussed herein, and so that we may consider the next legal steps, the ACLJ requests that within 5 days of this letter, the Westin Bonaventure and Interstate Hotels inform us of their position on whether they will allow the discriminatory and unlawful Boycott rules to be applied at the Annual Meeting on the Westin Bonaventure’s premises.

David French, one of the ACLJ litigators who has handled some very high profile cases involving academic freedom, writes at National Review, Left-Wing Anti-Semitism Has Consequences:

No other nationality is subject to such discrimination — not Syrians representing a regime that has gassed its enemies, not Iranians representing a regime that hangs apostates, not Russians representing a regime that has launched an invasion of a neighboring sovereign nation. Instead, they focus their ire on the Middle East’s lone democracy, a nation under constant terrorist attack that still grants its citizens — regardless of race or religion — greater civil liberties than any other nation in the region.

While the ASA is entitled to its spite, it may not exempt itself from the consequences of its actions…. California’s Unruh Civil Rights Act bans “business establishments” from discriminating on the basis of, among other things, race, religion, and national origin. If the Westin hotel enforces ASA’s ban, it will be guilty of exactly the kind of invidious discrimination the law was crafted to prohibit.

In fact, when it passed the Unruh Act, the California legislature was specifically motivated by prior attempts to boycott of Israel and a concern that California businesses would deny goods and services to Jews…. It’s critical that the ASA be isolated, that its contracting partners not be exempted from the consequences of the ASA’s actions, and the law apply according to its original (and constitutionally valid) intentions.

(added) The letter also reflects that the standard Westin Bonaventure conference contract includes a requirement that neither party violate the law (emphasis in original):

We are aware that the Westin Bonaventure’s standard form of contract for events such as
the ASA meeting contains a provision that “Each party will comply with all applicable federal, state and local laws . . . .” In addition to fulfilling their legal obligations under the Unruh Act, the Westin Bonaventure and Interstate Hotels appear to have a contractual ability to prevent unlawful discriminatory exclusionary policies being implemented at the Annual Meeting.

The Westin Bonaventure should refuse to allow discriminatory conference access policies on its premises. There is no exception under the anti-discrimination laws for people or groups who discriminate against Israel and Israelis.

The Westin Bonaventure presumably never would allow conference organizers to apply discriminatory standards to deny or restrict admission to Mexicans and Mexican academic institutions, and it should apply that same legal protection to Israelis and Israeli academic institutions.

This is not a question of free speech. The American Studies Association can advocate whatever positions it wants.

What the Westin Bonaventure cannot legally permit, however, is discriminatory access standards for conferences held on its premises.

The management company the runs the Westin Bonaventure has not yet responded to my inquiry as to its position.

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