Monday, December 16, 2013

American Studies Association Discriminatory Boycott of Israel Faces Legal Challenges

Last month, Jewish Press reported US Academic Group May Boycott Israeli Universities. At issue is the American Studies Association (ASA), which at its annual meeting in Washington, D.C. entertained a resolution to boycott Israeli academic institutions.

The reason?
A primary reason offered in the body of the petition in support of the boycott resolution is that the Israeli “Occupation” has a severely deleterious effect on the academic freedom rights of Palestinian Arabs. To wit:
Palestinian universities and schools have been periodically forced to close as a result of actions related to the Occupations, or have been destroyed by Israeli military strikes and Palestinian students and scholars face restrictions on movement and travel that limit their ability to attend and work at universities, travel to conferences and to study abroad, and thereby obstruct their right to education.
The petition goes on a bit in that vein, and includes the fact that foreign academics face interference when trying to reach “Palestinian” academic institutions.
As Lori Lowenthal Marcus, the irony -- or ignorance -- displayed by the ASA is that none of the 19 degree-granting institutions serving the Arab Muslim population of the "West Bank" or Gaza existed before 1967.

Logo of the American Studies Association:
encouraging the exchanging of ideas through discrimination

But beyond the challenge of logic, the American Studies Association will be facing legal challenges as well.

Lawyer William A Jacobson, who blogs at Legal Insurrection, believes ASA academic boycott of Israel calls into question their 501(c)(3) tax exemption:
Voting on the resolution ends at 11:59 p.m. on Sunday, December 15. If the resolution passes, I intend on challenging ASA’s 501(c)(3) status through IRS procedures.

To that end, I have retained one of the leading practitioners in the field of charitable organizations, Alan P. Dye, Esq., to file a challenge to ASA’s 501(c)(3) status if the resolution passes. We expect to file the challenge prior to year end, if not sooner.

ASA’s anti-Israel academic boycott resolution calls ASA’s 501(c)(3) status into question for many reasons, including but not limited to the act of engaging in an academic boycott not satisfying the requirements of 501(c)(3) of the Internal Revenue Code that an organization must be “organized and operated exclusively for religious, charitable,…or educational purposes…” An academic boycott, which clearly is a substantial activity of the ASA and will be for the coming years, does not satisfy this test.

In addition, the anti-Israel boycott arguably exceeds ASA’s legal purpose as set forth in its bylaws, among other places, used to obtain that tax exempt status
Beyond their own legal status, the American Studies Association boycott of Israel is in violation of US law, as Nitsana Darshan-Leitner of Shurat HaDin explains:
The ASA [American Studies Association] scholars would do well to read up on some of the wide-range of anti-boycott legislation of which their proposed resolution and policy would seem to run afoul. Most local jurisdictions in the United States have passed laws that outlaw boycotts such as the ASA’s. As an example, the law in New York, where so many ASA members reside and work, defines boycotts as “unlawful discriminatory practice” and, that any decision to “refuse to buy from, sell to or trade with, or otherwise discriminate against any person, because of…creed…[or ]national origin”, is unlawful and even places secondary actors, aiding the policy, under liability. Even calling for or inciting a boycott against someone because they are Israeli could subject you to criminal prosecution.

The New York State Legislature has decided — correctly — that discriminatory boycotts aimed at a sovereign nation and its nationals are not to be tolerated. Then-Governor Carey, upon signing the legislation that created this anti-boycott framework wrote “that no nation or person is welcome to do business in this state, if that business is accompanied by… bigotry.” How many ASA members are salaried employees of state universities and city owned colleges?

In addition, the Ribicoff Amendment to the Tax Reform Act of 1976 also makes it a federal violation to “participate in or cooperate with an international boycott.” Moreover, anti-boycott legislation under the Export Administration Regulations (EAR) specifically protect against the use of boycott – unsanctioned by the United States – in the sale, purchase, or transfer of goods or services (including information) within the United States or between the U.S. and a foreign country. The law was in fact set up specifically to prevent U.S. companies being targeted by the Arab boycott of Israel.

I would also advise the ASA professors to read the International Convention On The Elimination Of All Forms Of Racial Discrimination which the United States ratified on October 21, 1994.

The term used for the boycott in the anti-boycott laws, both domestic and international, is very simple; discrimination, and that is exactly what it is. To deny someone a voice because of their nationality is discrimination, indeed racism. To target only Israeli professors and colleges without considering the racist hate, violence and anti-Semitic incitement that permeates and infests Palestinian academic institutions displays a political illiteracy that should shame these professors.
It is too early to know if the ASA boycott of Israel will become a test case that would effect similar action by other groups here in the US, but the legal action taken against the organization will be watched by those who have a stake in the issues involved.

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