The big news on the BDS front is about a lawsuit just filed against the American Studies Association over the anti-Israel boycott they put in place in 2014, including the process leaders of the organization (named in the suit) used to turn the group from an academic organization into a political-partisan one.
The suit was brought by four prominent members of the ASA who claim that, by dragging the organization away from its chartered mission into political advocacy, these leaders are now operating outside of their non-profit charter and in violation of laws governing how membership organizations operate.
While I suggest you read through the legal commentary provided (as usual) by William Jacobson at Legal Insurrection, the nut of the complaint is: Can a group founded and established to pursue an agreed-upon agenda (furthering teaching and research in American Studies) – upon which its founding charter and rules of procedure are based – switch to a new mission (political advocacy in the form of international boycotts), while still claiming to represent (and raise funds based on) its original purpose?
The suit also highlights the manipulation used by ASA leaders to get their “victory” (probably the most appalling aspect of the story which, among other things, demonstrates how the ASA’s original scholarly and new ruthless political agendas are incompatible) which may explain why individuals responsible for this type of behavior are fingered in the lawsuit.
No doubt this suit will drag itself through multiple courts as both sides avail themselves of the legal resources now being put at the disposal of groups fighting for and against BDS in academia.
In theory, a court might offer an injunction, requiring ASA to put its boycott policy on ice until the case is settled. While such a move would be welcome, the practical value of such a decision would be minimal since – as has been noted previously – no American Studies program in the country has actually implemented a boycott allegedly established in the name of the field, and the Association itself has proven more interested in bragging about passing a boycott than actually doing anything to implement it.
As many of you know, among activists fighting the BDS scourge, I’ve tended to be more hesitant in calling for legal remedies to setbacks for our side. My reasons for this position haven’t changed, especially with regard to avoiding taking our opponents to court (which can backfire, setting legal precedent that hurts us in the process) when political options (even demanding, difficult ones) are still available. But I’m also a big advocate of politics that allows for someone to say “I’ve changed my mind, and here’s why.”
On the topic of using legal resources to fight BDS, my eyes were opened by a talk given by Ken Marcus of the Louis D. Brandeis Center for Human Rights Under Law at last year’s StandWithUs anti-BDS conference who highlighted that much of the misbehavior we’ve been seeing on college campuses is fueled by a sense of invulnerability by anti-Israel campus warriors backed by attorneys ready to pounce on any administration that tries to limit what the boycotters do in any way.
One of the main causes of campus unrest (which have just gotten broader and deeper in the last year as campus protestors embrace the SJP cause and its tactics) are administrators eager to avoid controversy – especially legal controversy – at all costs, which is why they are willing to let SJP et al make life hell for Jews on campus, rather than have to deal with a call from Palestine Legal. Under these circumstances, it would be ludicrous to unilaterally disarm and let the boycotters continue to run wild when it is fully in our power to ensure those same administrators are going to get a call from our side’s better lawyers if they refuse to act responsibly.
This is a case where political options (such as fighting against BDS resolutions within student government) are not closed off by ensuring there are legal consequences for SJP bullyboy tactics. In fact, it is only by removing intimidation and violence from the game board that genuine political debate can occur.
That said, the risks of going down a legal vs. political route have been on display in Olympia Washington where a lawsuit brought by members of the Olympia Food Coop (the subject of many stories here in the past) demonstrate the perils of turning to the legal system to settle complex disputes. Fortunately, an original painful defeat for anti-BDS forces (which could have forced them to pay hundreds of thousands of dollars) was reversed, allowing the lawsuit continues on more favorable terms for our side. But if a new court ultimately decides that a non-profit is free to do whatever its leadership of the moment think is OK, what’s that precedent going to do when the next court case (like the suit against ASA) comes to trial?
Now Olympia is a unique case where the Israel haters are strong and organized while anti-boycott forces less numerous and more divided. But with full respect for everything my friends there have gone through over the last several years, their inability to organize a successful political counterstrike does not mean a political alternative was completely impossible, including ones involving putting pressure on an organization that refuses to negotiate.
So the questions we should be asking about not just ASA but any conflict where a legal remedy is proposed are (1) are political alternatives truly impossible, rather than just difficult; and (2) will the positives of what is likely to be a drawn-out legal process (including getting boycotts reversed or unearthing important information via discovery) outweigh the potential negatives (including setting legal precedent against us or turning our opponents into martyrs).