The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The American Studies Association may be backing down from its widely-publicized decision last year to boycott Israeli academics. Or, more likely, they may be obfuscating and retroactively recharacterizing their policy to avoid civil rights problems.
Yesterday, I discussed how the Westin Bonaventure hotel's hosting of the ASA's upcoming annual conference might violate California civil rights law. The ASA's boycott policy means, as I explained, that "Israeli academics will be subject to unique exclusionary restrictions based on their national origin."
The ASA's executive director, John Stephens, wrote to me demanding a correction, claiming that my description of their policy was entirely "false." Stephens claims that despite the boycott
Our conference is open to anyone, including Israeli academics and non-academics. If someone were to register for the conference as a representative of an Israeli institution, he or she would not be turned away.
Stephens' claim direct contradicts the ASA's own FAQ explanation of their boycott (emphasis added) :
5) Would Israeli scholars be permitted to participate in the ASA conference or to be invited to my campus to speak in general, even if they relied on Israeli university funding?
Yes. This boycott targets institutions and their representatives, not individual scholars, students, or cultural workers who will be able to participate in the ASA conference or give public lectures at campuses, provided they are not expressly serving as representatives or ambassadors of those institutions, or of the Israeli government.
So according to the ASA, scholars who are "representatives or ambassadors" (whatever that means) are barred; but according to their executive director, a "representative" would not be "turned away." Of course, this could just mean that the ASA has decided to selectively enforce its discriminatory rules—even the notorious Arab League Boycott of Israel is porous.
Stephens went on to write that:
[The ASA] does not bar Israelis, it does not bar Israeli institutions. Prime Minister Netanyahu can attend if he wants to.
But their very own policy makes clear that it excludes Israeli institutions and their "representatives," as well as those of the "Israeli government," of which Netanyahu would be a prime example.
It gets better. It turns out that after yesterday's post, the ASA amended its description of its policy on its website, adding this footnote:
Israeli academics will be in attendance at the 2014 convention. The ASA will not prohibit anyone from registering or participating in its annual conference.
That amendment was not present in the policy until recent days, as this cached version reveals. Quite sloppily, the ASA did not drop a footnote in the PDF version of their policy on their website, so now they will or will not restrict Israeli scholars depending on their electronic file format. PDF, of course, is more official.
Stephens tried to mislead me about the ASA's policy, and is likely trying to mislead the Westin. The clear policy is to restrict participation by Israeli scholars in a way that no other nationality is subject to.
Even the belated claim to waive the boycott for the annual conference would not preempt legal liability. Academic conferences are organized, scheduled and registered months in advance. The discriminatory effects of their policy have already been realized. The fact that the policy was selectively not enforced for one Israeli academic (Mohammed Wattad of Zefat College School of Law) on the program does not mean it was not otherwise enforced.
However, the ASA's attempts to deny their policy, and then belatedly modify it on an ad hoc basis says little for their integrity. Having adopted their boycott to much public fanfare, they want to be able to quietly deny it—when it suits them.
Their reaction also suggests they understand the weakness of their legal position.