Those Israel Boycotts Are Illegal

In many cases, educational associations that shun Israel may be sued for violating their charters.  

By Eugene Kontorovich And

Steven Davidoff Solomon in the 

Wall Street Journal 

Dec. 1, 2015 6:51 p.m. ET

 The American Anthropological Association (AAA) voted on Nov. 20 to boycott Israel, though the resolution—which would prohibit Israeli academic institutions from any involvement in the organization, such as participation in conferences and hiring events—must still be approved by the group’s full membership in coming months. Ten days later the National Women’s Studies Association voted to call for a boycott of “entities and projects sponsored by the state of Israel.” Boycott votes are also scheduled at the annual meetings of the American Historical Association (AHA) and the Modern Language Association.

The moral myopia and academic perversity of these boycotts have been widely discussed. Less well understood is that in many cases they also are illegal. Under corporate law, an organization, including a nonprofit, can do only what is permitted under the purposes specified in its charter.
Boycott resolutions that are beyond the powers of an organization are void, and individual members can sue to have a court declare them invalid. The individuals serving on the boards of these organizations may be liable for damages.
Consider the American Historical Association. Its constitution—a corporate charter—states that its purpose “shall be the promotion of historical studies” and the “broadening of historical knowledge among the general public.” There’s nothing in this charter that would authorize a boycott. And an anti-Israel boycott will do nothing to promote “historical studies” or broaden “historical knowledge.”
One can go through similar exercises with the charters of other academic associations. A boycott by definition restricts study and research: The explanatory material attached to the AAA resolution, for example, says it would restrict the organization from sharing scholarly journals with Israeli universities. 

Saying that organizations cannot act beyond the purposes specified in their charters is no mere legal nitpicking. The charter is an explicit contract with members, declaring that their money will be dedicated to agreed-upon goals and that their group will not turn into a motorcycle club or a political party. 

Although some major academic organizations have thousands of members, they are generally run by a small staff and a board that effectively controls the agenda. The purposes named in their charters are meant to protect the overwhelming mass of members who cannot get involved in the minutiae of the organization’s affairs, to ensure that the organization cannot be hijacked for a fundamentally foreign purpose, and to protect minority members. The charter is the minimal assurance that while an organization may act unwisely, it will be at least in the category of fieldwork, education and research, not beekeeping or boycotts. 

The anthropologists’ anti-Israel resolution tries to sidestep the law with jargon about “ethnic cleansing” and “colonization,” and a contrived claim that “anthropological frameworks and methods, ethnographic and archaeological, are actively used by the Israeli state to further occupation and colonization.” This won’t work in a court of law. It is no different than if historians were to assert that since Israel is a part of history the AHA can legally boycott the country.
The American Studies Association voted to boycott Israel in December 2013, and the ASA now touts itself on its website as “one of the leading scholarly communities supporting social change.” But the association’s charter says nothing about social change. The ASA is dedicated to “broadening knowledge” about “American culture,” not boycotting a foreign nation. 

Recognition of this problem may grow. In March 2014, the Royal Institute of British Architects voted to boycott its Israeli counterpart. Lawyers advised the group about the legal dangers of exceeding its mandate. Later that year the institute rescinded its boycott resolution.

It may be more fun to lead social protests than to conduct research. And if the members of an academic organization are unhappy with the limitations on politicking in its charter, they’re free to establish a new organization with a new charter. But the law does not allow them to commandeer organizations that already exist.

 Messrs. Solomon and Kontorovich are professors in the law schools, respectively, of the University of California, Berkeley, and Northwestern University.