Brandeis Center Threatens Lawsuit Against Academic Organization for Supporting Call For Palestinian Rights

A Jewish civil rights group has sent a terse warning to an organization of teachers and scholars of literature and language: better not entertain any idea of endorsing the Boycott, Divestment, and Sanctions movement. If you do -- we may well sue you.

The authors of this threat are reacting to the fact that in just a few days, at its annual convention, the Delegate Assembly of the largest academic organization to ever consider endorsing BDS--the Modern Language Association--will vote on a resolution which reads:

"Whereas the MLA affirms: 'When academic freedom is curtailed, higher education is compromised';

Whereas the US materially supports Israel's ongoing violations of human rights and international law;

Whereas these violations include the systematic denial of academic freedom and educational rights for Palestinian scholars and students;

Whereas Israeli universities are instrumental in perpetuating these violations;

Be it resolved that the MLA endorses Palestinian civil society's call for the boycott of Israeli academic institutions; and

Be it further resolved that the MLA affirms the right of faculty and students everywhere to advocate for the boycott of Israeli academic institutions, without retaliation."

As required, the authors of the resolution have supplied documentation from reputable sources such as the United Nations, Amnesty International, Israeli human right groups, and others to support their claims [disclosure: I am a member of the group sponsoring this resolution].

As reported in The Algemeiner, the Brandeis Center's letter to the Modern Language Association claims that if the MLA passes the resolution it would be subject to an "ultra vires" law suit. Ultra vires lawsuits were popular in the mid-twentieth century as a means by which shareholders in a corporation could sue boards of directors for allegedly mismanaging the business--they accused directors of taking the company in a direction that went beyond its original mission.

Adapting this tactic, the Brandeis letter says the MLA boycott resolution has nothing to do with the mission of the MLA, which declares that "[t]he object of the association shall be to promote study, criticism and research in the more and less commonly taught modern languages and their literatures and to further the common interests of teachers of these subjects."

Brandeis maintains that the boycott resolution "harms study and research by dividing the membership, and excluding academics along political lines based on ethnic and national associations, thereby undermining the values that the MLA works to advance." The Center called on MLA administrators to "table or reject the boycott resolution" which "can only bring further divisiveness" and "lead to irreparable damage" of the organization.

Two issues stand out. First is the question of whether or not such a resolution takes the MLA so far afield from its mission as to warrant its administration abandoning its own deliberative and democratic procedures and bowing to external pressure from an external organization. The second is whether or not the resolution actually bars any collaboration with Israeli Jewish scholars.

The resolution's supporters claim that it conforms to the MLA's mission in it asks the MLA to honor its commitment to defending the "common interests of teachers" of modern languages and literatures. Such interests certainly include the right to education, free speech, and academic freedom--that is, precisely those rights that allow teachers to fulfill their own missions.

The MLA has a proven track record in protecting these rights internationally. In 1981 Delegate Assembly passed, and the MLA membership ratified, a resolution in support of Jewish scholars in the Soviet Union, stating, "Whereas the Modern Language Association is dedicated to the propagation and study of a diversity of languages and literatures, and Whereas Soviet Jews are harassed and arrested in attempts to study their own culture and languages, Be it resolved that the Executive Director communicate to appropriate officials of the Union of Soviet Socialist Republics the strong disapproval by the Modern Language Association of any attempts to suppress Jewish culture and, in particular, the Hebrew and Yiddish languages." That year the Delegate Assembly also ratified resolutions in support of scholars in El Salvador and Poland. And just this year it issued a strong statement in support of Turkish academics suffering persecution there. So why not do the same for Palestinians, whose schools have been bombed, universities invaded and closed, teachers and students deprived of human rights and indeed their lives? A quarter of the Palestinians who were killed during Israel's attack on Gaza in the summer of 2014 were students, according to the United Nations. Given the MLA's historical concerns with such deprivations of rights, the current resolution seems to be well within the mission of the association.

In terms of the question of whether or not endorsing the boycott would cut off relations with individual scholars, the resolution insists this is a boycott against institutions, not individual scholars, except those who officially and formally present themselves as representing the State of Israel. In this sense BDS is much less stringent than the anti-apartheid boycotts, that did boycott individual scholars. The sponsors of the resolution stipulate:

"The boycott is not directed at individuals. It is a boycott by an institution against Israeli institutions, stipulating that the MLA as an organization will not engage in normal academic activities with Israeli academic institutions. It does not deny Israeli scholars the right to attend conferences (including MLA meetings), speak at or visit U.S. universities, or publish their work in MLA or other scholarly publications. Nor will the boycott prevent U.S. scholars from traveling to Israel. Individual MLA members remain free to decide whether and how to implement the boycott on their own."

The use of such dubious tactics as ultra vires lawsuits by opponents of the boycott is a sign that they are catching on to the fact that confronting the boycott head-on is a losing proposition--after all, boycotts are Constitutionally protected forms of free speech. The use of ultra vires suits simply shows that they lack any other grounds to attack the boycott.

In terms of potential "divisiveness" and "damage" to the organization--there is of course no way to telling whether such things will come about, whether nor not these are idle threats. In fact, after the American Studies Association endorsed the academic boycott in 2013, many of these same concerns were raised. Shortly after, the ASA announced that it had: "welcomed more than 700 new members. The ASA has also collected more membership revenue in the past three months than in any other three-month period over the past quarter-century and its ongoing 'Stand with the ASA' grassroots fundraising campaign has exceeded the association's expectations thus far."

And in terms of "divisiveness," one should recall Martin Luther King, Jr's "Letter From a Birmingham Jail" where King voiced his great disappointment in those who prefer "a negative peace which is the absence of tension to a positive peace which is the presence of justice."

The rich and powerful are prime users of "lawfare"--they can mount lawsuits to intimidate others from even thinking about crossing the line. Our new President excels in this--for instance, threatening to sue newspapers for libel if they depict him or his policies unfavorably, when in actuality they may be just doing their job. Organizations like the MLA might well decide it is more prudent to avoid even a lawsuit it could win, preferring the absence of legal "tension" in the form of lawyer's fees. The question is whether justice, in the form of staying true to its mission, is worth it.