Motion to Amend Complaint in lawsuit by ASA members over adoption of academic boycott of Israel.
The American Studies Association (ASA) passed an academic boycott of Israel in December 2013, along guidelines of the Boycott, Divestment and Sanctions (BDS) movement.
Although the much smaller Association for Asian American Studies had passed the boycott the previous April, the ASA was the first major American faculty association to pass the boycott.
I noted at the time how the ASA committee structure, controlled by BDS supporters, was utilized to initiate the resolution, which was then endorsed by the BDS controlled National Council:
The anti-Israeli academic boycott resolution passed by the American Studies Association was initiated out of the Academic and Community Activism Caucus.
The resolution then was endorsed unanimously by the National Council, and then passed by a majority of those members voting online (depending on which total membership numbers are used, between 16-25% of the ASA membership actually voted for the boycott).
What happened at the ASA was a good example of how organizations can be captured by a dedicated group of activists, particularly where most of the membership is apathetic and has only sporadic involvement (usually only attending annual meetings).
The ASA action was condemned and rejected by over 250 university presidents, several major university associations, and other groups including the American Association of University Professors, which calls the boycott a violation of academic freedom. Links were provided in this post from December 2013, List of Universities rejecting academic boycott of Israel (Update – 250!).
In January 2014, I filed a Whistleblower Complaint with the IRS, Anti-Israel academic boycott group’s tax-exempt status challenged. I have not heard anything about the status of the complaint, and there is no IRS procedure for me to check the status.
The ASA implemented the boycott, but was forced to back down from its exclusion from its 2014 annual meeting of academic representatives of Israeli universities after the hosting hotel was informed that such exclusion based on national origin might violate California’s public accommodation laws.
No other major American faculty association has signed onto the boycott, despite repeated and intense attempts, including at the Modern Language Association, American Anthropological Association, and the American Historical Association. Expect more attempts at these and other organizations. The BDS supporters only need to win once at an organization, the supporters of academic freedom who oppose the academic boycott need to win every time.
A lawsuit was filed in April 2016 over the ASA boycott, American Studies Association and its leaders sued over Israel boycott:
A lawsuit just filed by several distinguished members challenges the ASA boycott, seeks damages against individual officers and National Council members who advanced the boycott, as well as injunctive relief, arguing that ASA exceeded its purpose defined under its constitution and bylaws….
The lawsuit could serve as a model for litigation against other faculty organizations which have been hijacked by anti-Israel activists.
In late March 2017, a judge granted in part and denied in part a motion to dismiss the case, Judge: Lawsuit against American Studies Assoc over BDS can move forward:
What that means is that several of the key claims will go forward to the next phase, discovery.
Eugene Kontorovich, a law professor at Northwestern University Law School, who has advised on the lawsuit for the plaintiffs, describes the decision at Volokh Conspiracy, Federal judge advances lawsuit challenging academic group’s Israel boycott:
A federal district court just issued its first ruling in Bronner v. Duggan, a case brought by several prominent members of the American Studies Association against the group and its officers. The plaintiffs contend that the ASA’s adoption of a boycott of Israel violated its own rules and procedures, as well as general laws regulating corporations and nonprofits.
I noted the case in these columns when it was filed a year ago, and helped advise the plaintiffs’ legal team. Back then, Palestine Legal — an activist group that provided legal advice to the ASA during its adoption of the boycott — claimed the lawsuit was designed to “chill speech supporting Palestinian rights,” and predicted the lawsuit would be would “thrown out by the court.”
Instead, a Memorandum Opinion by Judge Rudolph Contreras of the U.S. District Court for the District of Columbia denied the defendants’ demands for dismissal of most of the plaintiffs’ causes of action (waste, breach of contract and violation of the D.C. Nonprofit Corporation Act).
The court rejected what was perhaps the defendants’ most vocal contention, which invoked the First Amendment. They claimed the group had a broad “right to engage in a boycott,” and that enforcing the group’s own associations rules, or general provisions of corporate law, would infringe on their free speech. The judge noted the obvious — the dispute does not involve any state action, but rather members of an organization seeking to enforce the group’s own private rules and arrangements. Judicial enforcement of contractual arrangements does not constitute state action, and the defendants were surely unwise to rely on famous outlier cases such as Shelley v. Kraemer. Moreover, the fact that complying with the requirements of the D.C. nonprofit code might make it harder for the association to pass boycotts does not make it a First Amendment issue.
The ASA case will now proceed to discovery, which may shed more light on the full circumstances and considerations that lead a group of academics to adopt a unique boycott of a foreign country’s academic institutions.
In my post, I noted the significance of the lawsuit moving forward, even if some key claims were dismissed:
The case will go to discovery, which means that the ASA and many of its officers and Board members will have to produce emails and other electronic evidence. The lawsuit itself names numerous anti-Israel faculty who served in positions of authority at ASA, including Lisa Duggan, an NYU professor who uses her position to push BDS, and Curtis Marez, the UC – San Diego professor who infamously justified singling out Israel because “one has to start somewhere” (emphasis added):
The American Studies Association has never before called for an academic boycott of any nation’s universities, said Curtis Marez, the group’s president and an associate professor of ethnic studies at the University of California, San Diego. He did not dispute that many nations, including many of Israel’s neighbors, are generally judged to have human rights records that are worse than Israel’s, or comparable, but he said, “one has to start somewhere.”
Their interactions, and the identifies of and communications with others now will be subject to the judicial process.
Since that determination, according to the PACER electronic docket for the case, the parties have been involved in discovery, including some discovery disputes.
There now is another significant development in the case.
The plaintiffs moved to extend the deadline to add parties (pdf.), which had been November 1, 2017. The defendants oppose the motion (pdf.), asserting, among other things, that the identities and alleged involvement of the new parties previously was known to the plaintiffs, so there was no reason not to comply with the deadline. There is no court ruling on the motion to extend the deadline to add parties on PACER as of this writing.
Nonetheless, on November 9, 2017, the plaintiffs filed a Motion to File a Second Amended Complaint (pdf.)(proposed complaint also available here), expanding not only the claims but also adding parties.
Among the parties sought to be added are fairly high-profile BDS academic activists, including unaffiliated former professor Steven Salaita, Wesleyan professor J. Kehaulani Kauanui and Rutgers professor Jasbir Puar.
The Motion to Amend describes how the Second Amended Complaint, if the court grants permission to file it, would expand some of the claims:
This Court’s Memorandum Opinion of March 31, 2017 respecting defendants’ motion to dismiss the First Amended Complaint noted that the pleading contained “the idea that Individual Defendants hijacked the ASA for the improper purpose of turning it into a social justice organization,” but further noted that “[t]his alleged hijacking is not a discrete cause of action[.]” (Opinion at 29 n.8) The Proposed Second Amended Complaint pleads discrete counts and detailed factual allegations about how the USACBI Defendants, in furtherance of USACBI and their personal interests, gained and abused positions of trust within the ASA through deception and misrepresentation, and how, once in positions of leadership at the ASA, the Defendants orchestrated improperly manipulated the corporate machinery, violated the ASA Constitution and bylaws, and misappropriated the ASA’s assets to advance the USACBI agenda through the adoption of an academic boycott of Israel.
Supported by substantial factual detail, in large part uncovered in documents produced by the Defendants in the past three weeks, the Second Amended Complaint sets forth the following new claims:
• Breach of the fiduciary duties through material misrepresentations and omissions
in connection with elections, including, inter alia, covertly packing the ASA National Council with USACBI members, and intentionally withholding information material to ASA members voting in ASA elections;
• Breach of fiduciary duties through disloyal violations of organic provisions
specified below and misappropriation and misuse of assets of the ASA, including
depletion of the Association Trust and Development Fund (“Trust Fund”);
• Breach of contract and ultra vires activity for violation of the ASA Constitution
and bylaws requiring that nominees for ASA President and positions on the
National Council “shall be representative of the diversity of the membership”
(ASA Constitution as it read in 2013 (“2013 Const.”), art. VI, § 2.), thereby
packing the ASA National Council with USACBI members, a scheme explicitly
discussed in Defendants’ own documents, including emails from and referring to
New Defendant Jasbir Puar, who served on the ASA’s Nominating Committee;
• Breach of contract and ultra vires activity for freezing the membership rolls of the
ASA immediately before announcing that the membership would vote on a
proposed resolution to boycott Israeli academic institutions (“the Boycott
Resolution” or “the Resolution”), with the specific intent to prevent members
opposed to the Resolution from casting votes, and on the basis of an assessment
that the day chosen for the freeze would maximize the number of votes for the
Resolution, and minimize the number against, in violation of the bylaws requiring
the immediate reactivation of membership upon payments of dues (2013 ASA
Const., art. 2, § 2), a scheme explicitly discussed in Defendants’ own documents;
• Breach of contract and ultra vires activity for spending a substantial part of the
ASA’s activities attempting to influence legislation, in violation of the ASA’s
Statement of Election to Accept of the ASA, ¶ 3, § 4.
[footnote 2] This Court held that the ultra vires claim pled in the Active Complaint was deficient because it did not identify any specific legislation for which Defendants had advocated. (Memorandum Opinion of Mar. 31, 2017, at 33, “Plaintiffs have not pointed to any existing, proposed, or pending legislation that the ASA may have been targeting with the resolution.) (Dkt. 33.) The Proposed Second Amended Complaint provides the detail the Court found lacking
The Louis D. Brandeis Center, which is providing legal counsel for the plaintiffs, issued a press release on the new developments, which reads in part, Public Interest Lawsuit Reveals Plot by BDS Activists to Take over Academic Associations:
Leaders of the controversial Boycott, Divestment, and Sanctions (BDS) movement conducted a covert campaign to take over academic associations, without disclosing their political agenda, and then to use their influence to impose boycotts on the State of Israel, according to newly discovered documents. BDS activists were forced to reveal this secret agenda, as well as the unsavory means used to advance it, in the course of the cutting-edge anti-boycott litigation brought against the American Studies Association….
“The evidence shows that members of the U.S. Campaign for the Academic and Cultural Boycott of Israel [USACBI], a movement which promotes BDS in the United States, have sought to take over the ASA and similar associations,” stated Jerome Marcus, of Marcus & Auerbach LLC, lead counsel for the plaintiffs….
“This case is about the illegal, hostile takeover of a non-profit, academic association by leaders of an anti-Israel group,” added Louis D. Brandeis Center for Human Rights Under Law’s Jennifer Gross, another attorney for the plaintiffs. “Through a series of misrepresentations and breaches of duty, USACBI activists obtained positions of trust in the ASA, and then abused those positions in order to capture and exploit the assets of the ASA to advance the agenda of the BDS movement.”
…. Newly-revealed emails show how USACBI activists took over the ASA in order to use the academic association as a tool for advancing their anti-Israel political agenda….
I reached out to counsel for the defendants for comment and response to the press release and motion to amend, but as of this writing have received no response.
If the plaintiffs are able to file the Second Amended Complaint, it not only would add several high-profile BDS activists to the case, it would expand the possible legal grounds for recovery. It also would subject those activists, who are key to the BDS movement’s academic push, to discovery as to their activities.
We will continue to follow the case.
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