On Friday, in a partial victory for the American Studies Association (ASA), a district court in Washington D.C. dismissed plaintiffs’ ultra vires claim that the ASA operated beyond its corporate charter by passing an academic boycott resolution in 2013. The court held:
The boycott resolution was, therefore, enacted for “academic purposes”…. It also was reasonably in furtherance of the ASA’s purpose of advancing education and the promotion of the study of American culture through encouraging research, teaching, and strengthening relations among persons and institutions in the United States and abroad. The boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians. At the very least, it was “reasonably in furtherance of the objects” of the ASA. Thus, it was not contrary to the ASA’s express purposes.
The court ultimately held that “[P]laintiffs have not pled facts plausibly showing that Defendants acted ultra vires.” The idea that an academic association could be sued by its members for endorsing academic boycott resolutions was first advanced in 2015 by Northwestern University law professor Eugene Kontorovich, who also advised the Plaintiffs in their lawsuit. The theory was again promoted by Israel advocacy groups to bully the Modern Language Association in advance of a boycott vote in January 2017.
“The court echoed what we’ve been saying all along,” said Palestine Legal staff attorney Radhika Sainath, who wrote in 2015 that such an ultra vires claim would be a “sure loser” since “educational associations’ decisions to boycott Israeli institutions are aimed at promoting academic freedom for Palestinian scholars and students and thus fall squarely within the educational purposes for which such scholarly societies are established.”
The court also dismissed all of plaintiffs’ derivative claims for breach of fiduciary duty, but allowed the case to proceed to discovery – a preliminary stage in the litigation process — on the breach of contract, corporate waste, and D.C. Nonprofit Corporation Act claims. Israel advocacy groups had previously threatened to sue the ASA for national origin discrimination and antisemitism. This lawsuit abandoned those theories.
“Supporters of the academic boycott should take heart from this decision,” said Sainath. “Israel advocacy groups are throwing every legal argument at this movement to see what will stick, and nothing’s sticking. We’re encouraged that the court will ultimately see this lawsuit as an attempt by powerful actors to silence views they don’t like.”