More Legal Warfare: How Critics of Israel Are Being Subjected to Aggressive Lawsuits

As the Trump administration announced its intent to move the US embassy to Jerusalem (in blatant disregard of UN Resolution 181 and UNGA Resolution 303), and the Netanyahu government moves ever rightward, continuing its demolition of Palestinian homes for the building of illegal settlements, the US government’s support for Israel only increases. Kenneth Marcus, Trump’s nominee to head the Department of Education’s Office for Civil Rights, is well-known for advancing pro-Israel agendas and clamping down on Palestine solidarity activism on campus. All of these actions have generated a groundswell of protest, especially in the academy.

Universities have now become a key battlefield for public opinion and education on Palestine, so it is no wonder that pro-Israel forces are targeting them. One of the most momentous academic actions with regard to Israel-Palestine was the endorsement of the academic boycott of Israel by the American Studies Association (ASA) in December 2013. Members voted by a decisive 2-1 margin to boycott Israeli universities. Key arguments in favor of the boycott included the ASA’s own long tradition of mounting critiques of settler colonialism, racism and US imperialism. Supporters of the boycott also argued that Israeli universities develop weaponry and research for Israel’s illegal occupation, and that rather than being bastions of free speech, Israeli universities predominantly follow the government line and dissidents are persecuted. Ever since that moment, the ASA has been attacked and harassed continually.

Recently, the Wall Street Journal published an editorial by attorneys who served as advisers to a lawsuit against the ASA for its membership vote — “Anti-Israel Activists Subvert a Scholarly Group.” The attorneys allege that the boycott vote was the result of a “small cadre of academics” who “infiltrated” the organization. They attempted to portray the clearly free and democratic voting process of 800 members as the result of a hostile takeover. In fact, the lawsuit against the ASA is nothing more than political sour grapes. It was brought in April 2016 by the Brandeis Center, a long-time advocate for Israel. Its motivation is purely political, and its connections to the Trump administration and its allies clear: Kenneth Marcus, mentioned above, is a founder and president of the Center.

Indeed, in April of this year, a Washington, DC, district court dismissed major claims of the lawsuit, including a claim that the vote to boycott Israeli universities went beyond the Association’s operating charter.

Undeterred, Brandeis Center attorneys have attempted to smear and discredit members and leaders of the Association who supported the boycott resolution. Using McCarthyite tactics and language, they have accused ASA leaders of using “unsavory” methods and duping the membership. An attorney for the plaintiffs said:

“This case is about the illegal, hostile takeover of a non-profit, academic association by leaders of an anti-Israel group…. Through a series of misrepresentations and breaches of duty, [US Campaign for the Academic and Cultural Boycott of Israel] activists obtained positions of trust in the ASA, and then abused those positions in order to capture and exploit the assets of the ASA to advance the agenda of the BDS movement.”

Their harassing lawsuit, a prime example of “lawfare,” is a political response to the growing trend in universities worldwide to criticize Israel’s illegal occupation by boycotting Israeli universities, thereby signaling that business cannot go on as usual, so long as Israeli universities continue to support the occupation in intellectual and material ways. In the wake of the ASA vote, for example, the National Women’s Studies Association, the Critical Ethnic Studies Association and the National Association of Chicano and Chicana Studies also voted to boycott Israeli universities. Prior to the ASA vote, the Association for Asian American Studies was the first academic organization to endorse the boycott — and it, too, became the object of attack. The Brandeis lawsuit is the last legal gasp to stop an emerging consensus in the academy that Israeli apartheid is wrong.

The legal smear campaign also seeks to intimidate scholars everywhere who support boycott of Israeli universities. But its claims are patently false.

The ASA vote was not taken precipitously, in darkness and intrigue, smuggled through improperly. It was the culmination of years of public discussion and patient scholarly deliberation within the Association about whether or not to boycott. From 2009 to 2013, the Association’s annual meeting featured public speakers, including Palestinians, discussing reasons why US universities should boycott Israeli universities. In 2012, American Quarterly, the flagship journal of the Association, dedicated an entire issue to discussion of walls and borders, including the Israeli apartheid wall.

From December 2012, when a resolution to boycott was introduced, to December 2013, the Association provided space within pages of its newsletter — and its website — for debate and discussion about boycott. Leadership of the Association also held an open “town hall” about boycott at its annual national conference in November 2013, where nearly 100 Association members spoke. Overwhelmingly, those who did speak spoke in favor of boycott. That fewer speakers came out against the boycott should not be blamed on the ASA — it should be blamed on the weakness of the argument against the boycott, and the failure of anti-boycotters to present an organized, coherent and convincing counterargument.

What these well-funded pro-Israel lobbyists and lawyers now suing the ASA fail to understand is that more and more people across the United States, in the academy and beyond, recognize Israel for what it is: an apartheid state engaged in an illegal and deadly occupation. They have been moved to do something about that recognition, and thus they engage in nonviolent civil disobedience — or boycott. Boycotting is a time-honored tactic of social justice movements. From the Montgomery bus boycotts, to farmworkers’ strikes, to supporters of transgender people’s right to use the bathroom that matches their gender identity, boycotts are tried-and-true methods for achieving justice.

Finally, the Brandeis Center lawsuit not only silences social justice movements, but it does so by targeting women, people of color and Palestinians. Although dozens of people were involved in the organizing for the boycott resolution within the ASA and more than 800 voted in favor of it, the lawsuit names as defendants primarily scholars of color — and women — some of them queer.

The campaign to boycott Israeli universities will continue — and continue to grow — undeterred by such ridiculous and shabby legal challenges that evince only the desperation and intellectual and moral poverty of the claimants. That is the surest outcome of the ASA’s courageous and wholly democratic vote.

Note: The authors are members of the Organizing Collective of the US Campaign for the Academic and Cultural Boycott of Israel.