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Against Lawsuit as Anti-BDS Tactic

By TTN Blog

Steven Lubet is a Professor of Law at Northwestern University and Director of its Fred Bartlit Center for Trial Advocacy.  With his permission, we are reposting “The Wrong Way to Oppose BDS (Again)” from “The Faculty Lounge” website:

The Louis D. Brandeis Center has filed a lawsuit against the American Studies Association seeking to enjoin the ASA’s resolution to boycott Israeli academic institutions.  The complaint asserts two bases for the injunction:  First, that an “academic boycott of a foreign country is simply outside of the ASA’s authority to act;” and second, that certain voting irregularities render the resolution invalid.  As I explained in an earlier post – when the idea was first bruited – this lawsuit is a very bad idea.  Although I am strongly opposed to academic boycotts, I believe that the lawsuit is wrong legally, strategically, and politically.

Legally.  The main argument in the lawsuit is that the ASA resolution was ultra vires, in that it was not authorized by the relevant provision of the organization’s constitution.  Article I, § 2 of the ASA constitution, however, states that,

The object of the association shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity. (emphasis added)

Proponents of the resolution will therefore be able to argue that the boycott will strengthen relations with institutions in many more countries than it will restrict.  And though I personally disagree strongly with that position, it is hard to imagine that a court will want to second-guess the organization about the relative importance of its external relationships.

Strategically.  It is an unfortunate fact that the leadership of the ASA has become dominated by BDS advocates, and that the membership voted strongly for the boycott resolution.  Even if the lawsuit were successful on ultra vires or procedural grounds, the ASA could quickly remedy the defects, either via constitutional amendment or re-voting.  The result would simply be another debate and another boycott resolution.  The more likely outcome, however, is that the lawsuit will be dismissed, which of course will be seen as a reaffirmation of the BDS resolution.

Politically.  Lawsuits such as this one simply reinforce the claim that friends of Israel want to squelch public debate.  Like it or not, the ASA has chosen to take a public position on Israel, supported by a clear majority of its voting members.  Overturning the vote through legal action would be broadly seen as anti-democratic.

The ASA boycott of Israel is discriminatory, hypocritical, and anti-intellectual.  The politicization of an academic association is badly misguided.  Nonetheless, the way to oppose BDS is through principled argument, not judicial intervention.

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