The Volokh Conspiracy

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Professors file lawsuit against academic association for allegedly violating corporate law in Israel boycott

|The Volokh Conspiracy |

Today, several prominent members of the American Studies Association have filed a lawsuit against the organization in the D.C. federal district court. The lawsuit argues that the boycott of Israel implemented by the organization in 2014 violates the group's own rules and constitution, as well as laws governing corporations and nonprofits.

Some of this will be familiar to readers here: A few months ago, Prof. Steven Davidoff Solomon of Berkeley and I explained in a Wall Street Journal op-ed that such actions by academic associations can be invalid under the ultra vires doctrine of corporate law.

That rule limits a corporation from acting beyond its chartered purposes. In the modern era, ultra vires has little relevance for regular "all lawful purpose" for-profit companies. However, it still matters for nonprofits, which often specifically limit their activities and goals in their constitution. Such constitutional limitations are binding, and corporate actions that go beyond the express constitutional powers and purposes can be enjoined.

According to the lawyers for the plaintiffs (the lead counsel is Jerome Marcus, who among other things is a colleague of mine at the Kohelet Policy Forum):

At the time the boycott was initiated, ASA's constitution stated that "[t]he object of the association [is] the promotion of the study of American culture through the encouragement of research, teaching, publication…about American culture in all its diversity and complexity." The suit charges that a boycott of another country is outside the scope of ASA's charter and is the antithesis of promoting knowledge. ASA's constitution goes on to say that ASA's goal is "the strengthening of relations among persons and institutions in this country and abroad devoted to such studies." According to the complaint, the boycott does the exact opposite since it separates an entire country and its academics.

The plaintiffs include two winners of ASA Lifetime Achievement Awards. Like many current and former members I have spoken to, they feel they have invested a significant amount of their human capital over several decades into a scholarly organization that has essentially appropriated it and expended it on agendas far outside the group's mandate.

I served as an expert adviser to the litigation group on the case, which also included the Louis Brandeis Center for Human Rights.

Of course, the ASA is always free to change its charter—its promise with its members and donors—to become a "American studies and political activism" association. I can imagine some reasons they would not: As a purely scholarly group, professors can use their research budgets to pay for memberships, the ASA's primary source of revenue.

But if it was a political or social activist organization, professors might have to use their own funds. I certainly would not use my research funds to join the NRA, for example, even though it happens to be involved in research on the Second Amendment.