BDS Opponents Threaten Academic Associations With “Ultra Vires” Lawsuits, but Fail Big in First Attempt

In December 2013, immediately after members of the American Studies Association (ASA) voted overwhelmingly to endorse the academic boycott of Israeli institutions as set forth by the Boycott, Divestment and….

In December 2013, immediately after members of the American Studies Association (ASA) voted overwhelmingly to endorse the academic boycott of Israeli institutions as set forth by the Boycott, Divestment and Sanctions movement, the organization was targeted for criticism by hundreds of college administrators, politicians of both political parties and many others with an interest in Israel. Eventually, ASA was also slapped with a lawsuit that, among other things, claimed that the organization had acted beyond its charter and was therefore liable under what is called ultra vires law — which was designed to keep corporations operating according to their original purposes.

And it’s not just the American Studies Association that has faced this kind of argument. On April 17 the Modern Language Association will begin a vote on a resolution stipulating that the “MLA refrain from participating in a boycott of Israeli universities.” One of the reasons given is that “boycotting Israeli universities contradicts MLA’s purpose to promote teaching and research on language and literature.” The supposition being that endorsing a boycott so as to secure equal rights and academic freedom for Palestinians is unacceptable if it means posing a possible hindrance to normal academic business with Israeli state institutions. In the fight against BDS, opponents have exhumed this vestige of twentieth-century corporate law. Here is how Radhika Sainath, staff attorney for Palestine Legal, described these kinds of suits in a Mondoweiss piece:

“As any law student who’s taken a Corporations 101 course can tell you: modern statutes impose almost no limits on corporate purpose or powers. Such “ultra vires” suits went into decline along with jello salad and hot rods.”

In a 2015 piece in The Wall Street Journal, Eugene Kontorovich and Steven Davidoff Solomon argued:

“Under corporate law, an organization, including a nonprofit, can do only what is permitted under the purposes specified in its charter. Boycott resolutions that are beyond the powers of an organization are void, and individual members can sue to have a court declare them invalid. The individuals serving on the boards of these organizations may be liable for damages.”

In that opinion piece, the authors name several organizations, including the American Anthropological Association, the American Historical Association and the Modern Languages Association (MLA). Indeed, just before its 2017 convention, where the MLA deliberated a boycott resolution, the Brandeis Center warned the organization of possible legal action, precisely based on an ultra vires argument.

While this issue is clearly about criticism of Israeli state policies and equal rights for Palestinians, this controversy raises a larger question: What roles can academic organizations play with regard to activism and advocacy? How narrow are their professional charters? Where is the bright line between the “profession” and the world that academics study, create knowledge about and teach in?

Responding to Kontorovich and Solomon in a piece published in the Academe Blog, Peter N. Kirstein, a professor of history, wrote:

“I would argue that any resolution, whether supporting a boycott or a plea for greater academic freedom in Palestine, is consistent with the AHA [American Historical Association] charter. The 126-year old charter emphasises “the promotion of historical studies” and the “broadening of historical knowledge among the general public.” Such a resolution stimulates, whether one disagrees with it or not, discussion and analysis of the historical issues in the region.”

“What I found particularly troubling was the law professors’ hostility to academic freedom. Whether one is acting as an individual or through an organisation, in this country it must be an unfettered right to articulate a position on a matter of public concern.”

Those arguing against this resolution point to the fact that in the past, the MLA has passed several resolutions defending the academic freedom and free speech rights of various groups, including Soviet Jews and most recently Turkish academics. So it is not all political advocacy that is to be condemned; according to this resolution, it is advocacy that has to do with Palestinian rights.

Opponents of this anti-boycott resolution also say it deprives MLA members of what Kirstein mentions above — their academic freedom and free speech rights to act as a group. In effect, if this resolution passes, it will place a gag order on MLA members. This is of great concern to not only those advocating for Palestinian rights, but to all those who envision academic organizations on the whole as having responsibilities beyond these very narrow interpretations of their charters.

Recently, members of the Middle East Studies Association [MESA] voted overwhelmingly to remove “nonpolitical” as a descriptor of their organization as found in its charter, thereby giving it latitude to openly debate whether or not to take certain actions, unimpeded by threats of ultra vires lawsuits. Professor Joshua Stacher, a longtime member of MESA and on the Committee for Academic Freedom, told Truthout:

“Voters in MESA believed that removing “nonpolitical” better reflects that the knowledge everyone produces is political, and that open and democratic debates served the association best. The “nonpolitical” clause did not reflect the sorts of daily practices that MESA members experience. Removing nonpolitical didn’t make us a political organization. MESA has been political everyday for the past 51 years. Instead, 81 percent of voters decided to resolve this contradictory cold-war era logic and bring MESA’s daily practices into line with its bylaws. Those that argue that MESA chose to be an activist organization over an academic one are just perpetrating a lie that these are separate spheres. They just aren’t. Academic research is at its core a political commitment.”

Meanwhile, in a recent critical legal decision, a federal court threw out the ultra vires claim in the suit against the American Studies Association: “[B]ecause Plaintiffs do not allege facts suggesting that Defendants acted in violation of an express prohibition in the bylaws, they fail to state cognizable ultra vires claims. Accordingly, the Court will dismiss Plaintiffs’ … ultra vires claim [emphasis added].”

Most importantly, 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.”

In other words, the court rejected the notion that advocating for academic freedom is somehow beyond the charter of academic organizations.

Robert Warrior, president of the ASA, told Truthout: “We are pleased that significant aspects of the case against the American Studies Association have not survived the court’s consideration, with the failure of the ultra vires claim being especially important. Our motion, it’s important to note, was part of the pretrial proceedings of the court in this case, and the court’s decision assumes for the purposes of the dismissal motion that the allegations of those who are suing the ASA have made are accurate; we have not yet presented our side of the case.”

This is a huge victory not only for the ASA, but also for any academic organization even contemplating advocacy or activism. “Lawfare” is a common weapon used by the powerful to drain financial and other resources from organizations which they can out-lawyer and out-resource. Ultra vires suits in particular are used to leverage fear and extreme caution. This case has challenged academic groups on their broader commitments to academic freedom, free speech and public engagement, and in this instance, the challenge has been met, and met in ways that free others organizations to think of taking more assertive positions, especially when it comes to Palestinian rights. At a moment when the Trump White House is openly hostile to BDS (in addition to many forms of political protest), and hostile to education as well, academic organizations need more than ever to exercise their academic freedom, and put to use their critical, intellectual and persuasive powers to educate.