Last week I reported that my colleagues and I at the American Center for Law and Justice wrote to the Westin Bonaventure hotel, warning it that enforcing the American Studies Association’s boycott of Israeli scholars would violate California’s expansive nondiscrimination laws — laws that were originally motivated in part by prior threats of anti-Israel boycotts. The ASA boycott originally targeted Israeli academic institutions and Israeli scholars or individuals representing those academic institutions — thereby singling out institutions and individuals on the basis of their nationality, placing burdens on them not shared by scholars from any other nation, including Syria, Iran, Russia, or North Korea.
That’s sheer bigotry in action. It’s invidious discrimination, and no public accommodation in California is permitted to participate in such discrimination.
I am not an expert on the application of California’s anti-discrimination laws, but the notion that a public accommodation cannot host an event that itself violates the law would at least seem consistent with the text of the statute. I also happen to generally disfavor anti-discrimination laws on, among other things, First Amendment (free association) grounds, but unfortunately for the ASA, these arguments do not fare well in courts.
The ASA’s argument that it does not bar Israelis, but only Israelis who attend as representatives of their academic institutions, will not likely help them much, as the normal way for academics to attend academic conferences is as representatives of their institutions. In any case, this argument amounts to saying the ACA is not discriminating as much as they could have, which is not an advisable defense in discrimination cases.
While I too wish that courts granted broader protections for free-association rights, the hotel is highly unlikely to assert an associational interest in this case. It would be surprising indeed if it wanted to wrap its own corporate speech around the bigoted ASA boycott.
The ASA quickly responded to Professor Kontorovich, claiming his characterization of the boycott was “false” and declared:
Our conference is open to anyone, including Israeli academics and non-academics. If someone were to register for the conference as a representative of an Israeli institution, he or she would not be turned away.
Let’s be clear: This is a climb-down. The ASA is changing its policy while furiously claiming that its policy has remained the same. Unfortunately for the ASA, Google has a long memory. As Professor Kontorovich points out, the policy was rather clear:
Stephens’ claim direct contradicts the ASA’s own FAQ explanation of their boycott (emphasis added) :
“5) Would Israeli scholars be permitted to participate in the ASA conference or to be invited to my campus to speak in general, even if they relied on Israeli university funding?”
“Yes. This boycott targets institutions and their representatives, not individual scholars, students, or cultural workers who will be able to participate in the ASA conference or give public lectures at campuses, provided they are not expressly serving as representatives or ambassadors of those institutions, or of the Israeli government.”
So according to the ASA, scholars who are “representatives or ambassadors” (whatever that means) are barred; but according to their executive director, a “representative” would not be “turned away.” Of course, this could just mean that the ASA has decided to selectively enforce its discriminatory rules – even the notorious Arab League Boycott of Israel is porous.
In the course of accusing Professor Kontorovich of passing on false information, the ASA went ahead and actually changed the description of the boycott on its website, adding a footnote:
*In accordance with the “yes” answer immediately above, Israeli academics will be in attendance at the 2014 convention. The ASA will not prohibit anyone from registering or participating in its annual conference.
So, instead of barring Isreali representatives attending in their official capacities, the ASA “will not prohibit anyone from registering or participating.” That’s a change, and that’s a victory — for now — over radical-left bigotry and discrimination, but much damage has still been done.
Here’s Professor Kontorovich again:
Stephens tried to mislead me about the ASA’s policy, and is likely trying to mislead the Westin. The clear policy is to restrict participation by Israeli scholars in a way that no other nationality is subject to.
Even the belated claim to waive the boycott for the annual conference would not preempt legal liability. Academic conferences are organized, scheduled and registered months in advance. The discriminatory effects of their policy have already been realized. The fact that the policy was selectively not enforced for one Israeli academic (Mohammed Wattad of Zefat College School of Law) on the program does not mean it was not otherwise enforced.
However, the ASA’s attempts to deny their policy, and then belatedly modify it on an ad hoc basis says little for their integrity. Having adopted their boycott to much public fanfare, they want to be able to quietly deny it – when it suits them.
Their reaction also suggests they understand the weakness of their legal position.
I had no expectations for the ASA’s integrity. In launching its boycott, the ASA departed even from the leftist academic mainstream, isolated itself as uniquely preposterous and malicious, and then attempted to drag a prominent hotel into unlawful discrimination. The policy change is, however, quite welcome and should serve as a wake-up call to the ASA’s members. Attempting to isolate Israel, they have isolated only themselves.
This article is crossposted at National Review Online.
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