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Federal judge strikes down lawsuit targeting academic boycott of Israel

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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.

As early as 2016, Palestine Legal  had indicated  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.

Nada Elia

Nada Elia is a Palestinian scholar-activist, writer, and grassroots organizer, currently completing a book on Palestinian Diaspora activism.

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3 Responses

  1. Misterioso on February 6, 2019, 9:39 am

    An informative article regarding Zionist attempts to indoctrinate young American Jews by means of misinformation:

    By +972 Magazine, January 13, 2019
    By Tom Pessah

    “Fed up with myths, these American Jews are challenging their Israel education”

    “They grew up on the myths of a heroic Jewish state, joined Zionist organizations, and learned the talking points. But something along the way made them question everything.”

    “Some of the strangest encounters I had in the years I spent living and studying in the United States were with American Jews. I often felt like I had been dropped into a musical, with people expecting me to fit the mythical image of how an Israeli was supposed to behave. The only problem: I had no idea what my lines were supposed to be.

    “I was asked about my time in the Israeli army or about the ins and outs of Jewish religious practice. Pro-Israel students assumed I would be there to validate their advocacy.

    “Many of them were visibly disappointed when I didn’t play the part. Only gradually did I begin to understand how central Israel education had been in their lives, and just how big of a stumbling block it truly was.

    “To understand this process better, I spoke with four Jewish American activists, all of them in their late 20s and products of mainstream American Jewish education. Over the last few years they have all joined non-Zionist and anti-occupation groups such as Jewish Voice for Peace and IfNotNow. Michal, Susannah, Malkah, and Aaron told me how their Israel education shaped their worldview, and what led them to challenge what they had learned about the Israeli-Palestinian conflict.

    “An editor’s note: Susannah and Malkah asked to use only their first names; the other two interviewees asked to use aliases, citing fears that using their real names could threaten their status in their communities and future job prospects.

    “Whether Modern Orthodox, Reform, or Conservative, all of the four interviewees said that Israel was an integral part of their experience in the Jewish community from a young age. None of them could remember a time when it wasn’t a part of their Jewish communal experience.

    “For Michal, a pro-Israel program in Israel was the tipping point, and the first time she considered that not everything she had been taught about Israel was true. ‘Aish HaTorah, [the organization] that runs Hasbara Fellowships, were teaching us talking points: here is a template for advocating for Israel on campus, here are the points your opponents will use, and here is how you turn it around on them and humiliate people in the process. Then they would have us practice — one person would play the aggressive pro-Palestine advocate and we would have to use the arguments they gave us. I remember being so embarrassed because I just couldn’t do it. I’m a really bad bull shitter. They’re using the word ‘apartheid,’ and I’m supposed to say ‘there are Israeli Arabs in the cabinet.’ I couldn’t memorize all those steps and then spit them back out like I was supposed to do.’”

    “’What tipped me off was when they took us to Hebron. You walk there and it’s a ghost town with [Palestinian] shops boarded up. There is a barrier in the main street that separates Palestinians from Israelis. And you have menacing settlers. Something felt off: it was the first inkling I had of ‘is this really necessary in order to have this miraculous Israel?’ I didn’t have the words then — it was just a feeling. I didn’t have enough information to understand where this feeling was coming from.'”

  2. genesto on February 6, 2019, 6:57 pm

    This is a beautifully written and inspiring piece. Thank you Nadia.

    You are right that sumud, or steadfastness in the face of oftentimes daunting adversity, is what has kept this movement alive. This is something Zionists will never understand. They think that punishment for our not giving in can only be countered with more punishment. This demonstrates not only the pure evil but also the madness of the Zionist project.

    Evil, as they say, eventually destroys itself. The same will be true of Zionism one day.

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