Federal judge strikes down lawsuit targeting academic boycott of Israel

Nada Elia – February 5, 2019
Palestine will be the litmus test for presidential candidates in the 2020 elections.

As Democratic politicians respond to the fact that their constituencies have shifted to the left, with an ever growing number of Americans supporting Palestinian rights, they will also need to come out in support of activism for justice in Palestine. We are already seeing this in the vote on S.1, the Marco Rubio-AIPAC sponsored bill to criminalize BDS. On Tuesday, February 5, 23 Democratic Senators voted against it. Those 23 included most of the 2020 presidential candidates—certainly no coincidence, but a reflection of the political times.

It is also a reflection of the political times that, in a long-overdue defeat for the Louis D. Brandeis Center, on February 4, a day before the Senate vote on S.1, a federal judge struck down the three-year old lawsuit against faculty members of the American Studies Association (ASA), which had voted overwhelmingly in favor of an academic boycott of Israel at its 2013 annual meeting. The Brandeis Center was founded by Kenneth Marcus, the Zionist hawk and long-time opponent of BDS and free speech on campus, who represented the plaintiffs until he was appointed head of the Office of Civil Rights in the Department of Education by the Trump Administration. The plaintiffs, Michael Barton, Simon Bronner and Charles D. Kupfer, all of Pennsylvania State University at Harrisburg, and Michael Rockland of Rutgers University, alleged that ASA officials and members of USACBI, the US Campaign for the Academic and Cultural Boycott of Israel, has violated ASA by-laws, and breached their fiduciary duties.
The lawsuit initially named seven defendants, former ASA president Lisa Duggan, as well as Avery Gordon, Sunaina Maira, Curtis Mazar, Chandan Reddy, John Stephens, and Neferti Tadiar. They later dropped Avery Gordon, with the result being that all the defendants were queer and/or people of color, in a clear illustration of the racial and gender dynamics of the legal stand-off: the four plaintiffs are senior white men. The second lawsuit added Jasbir Puar, J. Kehaulani Kauanui, and Steven Salaita, all actively involved in USACBI. The addition of Salaita is another indication that the lawsuit targeted outspoken supporters of Palestine, rather than anyone who allegedly violated ASA by-laws: Salaita joined the ASA board two years after the vote to endorse BDS. “I’m thrilled that this baseless case has been dismissed. It served no purpose other than persecuting those who dare to criticize Israeli policy and seek to end the occupation through peaceful means,” Salaita wrote. “Our victory further illustrates that it’s important to stand firm against attempts to silence those devoted to the cause of justice.” Salaita had been represented by the Center for Constitutional Rights.
Other ASA defendants were represented by Palestine Legal, which had indicated as early as 2016 that the lawsuit is frivolous, and intended to stifle Palestine advocacy on campuses nationally, stating: “Plaintiffs’ theory that the “ultra vires” doctrine – a corporate law theory – could limit the ASA’s First Amendment right to endorse the academic boycott is meritless and will likely be thrown out by the court.” J. Kehaulani Kauanui, a Wesleyan University professor and co-defendant, said the political motivations of the lawsuit were clear: “The Brandeis Center did not hold back its clear intent to punish me for standing up in solidarity with Palestinians and to deter others. They don’t call it lawfare for nothing.” In their statement issued yesterday, Palestine Legal noted that “This week’s court dismissal emphasizes that efforts to censor the boycott movement will fail.”
A main accusation made by the defendants is that ASA officials—the defendants, had misappropriated membership dues to advance the BDS campaign. They were suing for $75,000 in damages. In the Court’s dismissal of the case, however, Judge Rudolph Contreras makes clear its spurious claims: “the parties and the Court have danced around the key issue…for multiple rounds of briefing and opinions. The waltz has now reached its crescendo, and Plaintiffs have been found wanting.” The ruling also finds, “If Defendants misappropriated every dollar that Plaintiffs contributed to ASA in annual dues, it would take each Plaintiff 625 years to reach $75,000 in damages.”
And even though the dismissal of the court case remains strictly technical, as the judge did not address the political issue at the core of the lawsuit, the ruling is important, as it dismisses a well-oiled attack by what Salaita has termed “the Zionist punishment industry.”
The dismissal of the lawsuit against the ASA follows shortly after the dismissal of the lawsuit against Professor Rabab Abdulhadi of San Francisco State University, who had also been named in a court case by “The Lawfare Project,” only to have that case thrown out of court, in October 2018. In Abdulhadi’s case, Federal Judge William Orrick III dismissed the suit, and did not allow Lawfare to refile. Like the ASA defendants and the various members of the USACI Organizing Collective, Abdulhadi is not deterred—indeed, she is going on the offensive, as she has decided to sue her institution for discrimination, even as she is about to launch a study abroad exchange program to Palestine.
If the “Brandeis Center” and “Lawfare Project” seek a war of attrition, they are doomed to fail again and again: having been in the struggle for decades, Palestine rights activists are nothing if not thick-skinned, persistent, determined. And no amount of intimidation, not even the loss of one’s career, will stop such activism. On the other hand, it seems that opposition to BDS may end the political aspirations of Democratic hopefuls.
The ultimate goal of BDS activities, however, is not legal victories in American courts, important as the latter are. The “key issue” is not the alleged financial misappropriation of members’ annual dues, as Judge Contreras suggested as he dismissed the anti-BDS lawsuit, nor even the all-important constitutionally protected first amendment right to free speech, but justice for Palestine. As I wrote in an earlier OpEd, “the focus on American freedom of speech, and American freedom of expression, worthy as it is, should not distract from the cause we are defending, with our free speech and political expression.” Today, the ASA victory against the “Zionist punishment project,” like Dr. Abdulhadi’s victory against “the Lawfare Project,” indeed, like the nay votes against S.1 by 2020 Democratic presidential hopefuls, are proof that there is no shutting down American activism until the ultimate goal, justice for Palestine, is achieved.