Are Anti-Israel Boycotts Legal? Doesn't Look Like It

Israelis celebrate Israel's 68th Independence Day with fireworks in the southern city of Ashkelon. The author argues that attempts by educational nonprofits to boycott Israel breaks the law that nonprofits’ funds from members cannot be used to push a political agenda that has nothing to do with the association’s mission. Amir Cohen/reuters

Boycotts against Israel are making headlines again. The American Anthropological Association (AAA) is voting this month on whether to boycott Israel.

If the resolution passes, AAA will be the largest and oldest academic association to do so.

In response, many heads of U.S. universities, including MIT, the University of Chicago and all 10 University of California campuses, recently reaffirmed their opposition to academic boycotts, specifically citing ones targeting Israel.

The graduate student unions at University of Massachusetts (UMass) Amherst and New York University (NYU) just voted to boycott Israel. Both UMass chancellor Kumble R. Subbaswamy and NYU president Andrew Hamilton responded with unequivocal opposition and condemnation.

Fierce debate has surrounded boycotts since the American Studies Association (ASA) endorsed an Israel boycott two years ago.

Are boycotts antithetical to the mission and values of academia?

Do boycotts violate academic freedom?

The American Association of University Professors, the American Council on Education, the American Association of Universities, 134 members of Congress and hundreds of university presidents, including the heads of Harvard, Yale, Princeton, Stanford, Johns Hopkins, Columbia, Cornell, Duke, Brown and Dartmouth forcefully condemned ASA. In fact, many universities withdrew their memberships from ASA after its boycott vote. The wave of backlash was swift, strident and appropriate.

Others questioned: Why the obsession with Israel? Considering all the non-democratic, non-feminist and non-free religion, free speech and free press countries, why Israel?

Israel is the only country in the Middle East to provide equal rights to women and all members of the LBGTQ community, to guarantee freedom of press and religion and to safeguard the opportunity to vote, regardless of ethnicity.

In fact, Jews, Christians and Muslims all serve in Israel's government. North Korea, Saudi Arabia, Pakistan, Syria, Sudan, Myanmar, Russia and many other recidivist human rights violators are not singled out for boycott. Among the 196 nations in the world, why is the only Jewish state being singled out? Are boycotts of Israel really thinly veiled anti-Semitism?

Putting those concerns aside, though, there is a new question gaining much traction in legal circles: Are such boycotts even legal?

Law professors Eugene Kontorovich and Steven Davidoff Solomon on the Wall Street Journal opinion page recently concluded they are not. And days ago, a group of distinguished American Studies professors and longtime ASA members, two of whom were recipients of the highest ASA award for outstanding teaching and program development, sued their Association.

The American Studies professors describe how a handful of radicals, including founding members of the U.S. Campaign for the Academic and Cultural Boycott of Israel, hijacked their academic association to ram through a personal and political mission having absolutely nothing to do with American Studies.

This new legal question is probably the most relevant. Let me explain.

Nonprofits incorporated in D.C. are governed by the D.C. Non-Profit Corporations Act. It provides that an organization is limited to the terms of its charter. Knowing that nonprofits are often run by a handful of active members, the law was created to protect the entire membership from officers and directors who abuse their positions and coopt an organization for political purposes.

Funds from members cannot be used for purposes beyond activities authorized in the charter. Activists cannot legally trade on an academic association's reputation to push a personal political agenda that has nothing to do with the association's mission.

At the time the boycott was initiated, ASA's constitution clearly 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."

According to the American Studies professors, for 60 years, ASA has been an association focused on American Studies. It is not a social justice organization, nor is it a foreign policy organization. Indeed, according to the professors, boycotting a foreign nation has absolutely nothing to do with ASA's mission and is therefore illegal.

I agree, which is why my organization has assembled a team of lawyers to represent these esteemed American Studies professors in this significant and pivotal case.

The question of whether an arguably anti-Semitic academic boycott of Israel violates academic freedom continues to be debated. But whether it violates the law seems pretty clear.

And it begs the question: Is ASA an academic association devoted to the promotion of knowledge or instead a political group masquerading as a non-profit for tax-exempt status?

Kenneth L. Marcus is president of the Louis D. Brandeis Center for Human Rights Under Law and is the former staff director of the U.S. Commission on Civil Rights. His latest book is The Definition of Anti-Semitism .