On January 6, the law firm of Webster, Chamberlain & Bean, LLP, filed a complaint with the IRS arguing that the American Studies Association (ASA) no longer warrants its tax-exempt status because it violated its academic purpose.
The ASA voted by a 2-to-1 margin in December to endorse an academic boycott of Israel. The resolution claimed that “there is no effective or substantive academic freedom for Palestinian students and scholars under conditions of Israeli occupation.” Therefore, in solidarity with “Palestinian civil society,” the ASA decided to sever relations with Israeli universities and academics.
A bipartisan group of about “>50 congressmen along with over 180 academic organizations and universities — including every Ivy League school and other elite institutions — have spoken out against the boycott for its limitation of academic freedom and its anti-Semitic undertones. As the public outrage grows, the complaint filed with the IRS on behalf of William A. Jacobson, a law professor at Cornell, is the first legal response to the ASA’s boycott of Israel.
Lawyers argue in the complaint that the ASA should have its tax-exempt status revoked for two main reasons: The Israel boycott does not further the ASA’s purpose as an educational institution, and it violates prohibitions against discrimination on the basis of national origin and religion.
Most of the space in the complaint, 27 of its 35 pages, is spent on the question of whether the ASA’s academic boycott of Israel is contrary to its educational purpose. “ASA’s academic boycott is anti-educational, seeking to sever the free exchange of ideas and interactions among scholars and institutions so critical to higher education,” the complaint reads. This claim is based not on the circumstance of the Israel boycott but rather on academic boycotts in principle: “These denunciations have been without regard to where one stands on the Middle East dispute, and are grounded in the threat academic boycotts present to education, not Middle East politics. ASA’s exempt purpose would be violated even if ASA took the other side of the political issue, and boycotted Arab universities and scholars.”
Few would object had the ASA chosen to boycott, say, a neo-Nazi organization that preached violence against minorities, or perhaps a Communist organization that advocated the suppression of thought. A boycott may be fully warranted if the institution being boycotted is itself antithetical to “the free exchange of ideas and interactions among scholars and institutions.”
The complaint is on firmer ground when it moves beyond the theory to the actual case at hand. “By cutting off Israeli academic institutions and faculty from the ASA, the ASA is not promoting the study of American civilization and culture, but rather, making such study more difficult,” it reads. This argument demands that the IRS determine not whether academic boycotts are intrinsically anti-educational but only whether the particular boycott against Israel is.
This academic embargo violates U.S. non-discrimination policy, a point that the plaintiff spends less space arguing but that is supported by precedent. The Supreme Court has ruled consistently that the activities of charitable organizations may not be illegal or contrary to public policy. The Court applied this principle in Bob Jones University v. U.S. (1983) by ruling that discrimination on the basis of race was grounds enough for the revocation of a university’s tax-exempt status. The same federal laws that prohibit racial discrimination also cover discrimination on the basis of national origin, color, religion, sex, and other attributes.
The ASA, by singling out Israel and boycotting no other nation, discriminates against academics and institutions on the basis of their national origin, and arguably on the basis of their religion as well, so it is likely that the IRS will find the ASA’s actions illegal. Despite outcries and scrutiny following its overt targeting of Israel, the ASA has neither apologized for nor retracted its boycott. Perhaps it will if faced with the end of its tax-exempt status or the prospect of a discrimination suit.
— Alec Torres is a William F. Buckley Jr. Fellow at the National Review Institute.