American Studies Association IRS Whistleblower w Exhibits

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					                                SUBMISSION TO THE

                          INTERNAL REVENUE SERVICE

                    UNDER THE TAX WHISTLEBLOWER ACT,
                                  26 U.S.C. § 7623(b)


                         AMERICAN STUDIES ASSOCIATION

                          ACADEMIC BOYCOTT OF ISRAEL

               IS NOT IN FURTHERANCE OF ASA’S EXEMPT PURPOSE

                          AND VIOLATES PUBLIC POLICY –

          REVOCATION OF §501(c)(3) TAX-EXEMPT STATUS IS REQUIRED


                                    January 6, 2014




Submitted on behalf of William A. Jacobson by:


Alan P. Dye, Esq.
Webster, Chamberlain & Bean, LLP
1747 Pennsylvania Avenue, NW, Suite 1000
Washington, D.C. 20006-4693
Tel: (202) 785-9500
Fax: (202) 835-0243
adye@wc-b.com
                                           INTRODUCTION

           This submission is made pursuant to 26 U.S.C. §7623 et seq. (the “Tax Whistleblower

Act”). This matter concerns the recent actions taken by the American Studies Association (“ASA”)

to implement a perpetual academic boycott of Israel. The history, scope and operation of this

academic boycott are discussed in detail below.

           We respectfully request the Internal Revenue Service (“Service”) to review this matter and

make a determination that ASA’s academic boycott of Israel adversely impacts ASA’s §501(c)(3)

tax-exempt status and that revocation of its §501(c)(3) tax-exempt status is warranted under the law.

           In brief, ASA has undertaken, as an organization, to enter into a wide-ranging academic

boycott of Israel as called for by international and U.S. organizations acting on behalf of a call from

“Palestinian civil society.” Although by resolution ASA has committed itself to the full scope of

the international academic boycott, ASA has issued guidelines purporting to scale back the scope of

the boycott. Even under ASA’s guidelines, however, ASA as an organization will boycott all Israeli

academic institutions and all faculty representing or acting on behalf of Israeli academic institutions

or the Israeli government. Public statements by ASA that it will not boycott individuals are not

correct.

           ASA’s academic boycott is not consistent with its educational exempt 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. ASA’s academic boycott is deemed

such a threat to academic freedom and the educational process that major non-partisan organizations

representing virtually every higher educational institution and almost 50,000 university professors

have denounced the academic boycott. Over 100 individual university presidents have done the

same, and the number is growing.



                                                    2
          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.

          Whether other forms of boycott in other contexts by organizations with other exempt

purposes passes muster is not something the Service need resolve on this complaint. The issue

here is very specific to an exempt “educational” organization engaging in an academic boycott.

          This particular ASA academic boycott is even worse, because in addition to being anti-

educational, it is based explicitly on national origin in violation of the public policy against such

discrimination. In addition, the international boycott of which ASA now is a part traces its roots

directly to the anti-Semitic Durban NGO conference in 2001 and the anti-Jewish sentiment of the

Palestinian boycott movement. In examining whether the ASA boycott is a proper exempt purpose,

the Service cannot ignore the anti-Semitic context and roots of the boycott movement ASA has

joined.

          The ASA academic boycott also violates clear U.S. public policy, expressed in federal and

state laws, against international boycotts singling out Israel.

          We suggest that under relevant statutory, regulatory and case law authority, revocation is

required.

    A. ASA’s §501(c)(3) EXEMPT PURPOSE

          ASA is a District of Columbia non-profit corporation recognized by the Service as exempt

from federal income tax under §501(c)(3) of the Code. ASA’s Articles of Incorporation provide,

in pertinent part, that (emphasis added):

          [t]he corporation is organized exclusively for educational and academic study
          purposes…[e]xcept as restricted herein, the corporation shall engage in any and all



                                                    3
        lawful activities incidental to the foregoing purposes including but not limited to the
        study of American civilization. Among the specific ways in which the corporation shall
        attempt to achieve this objective are the following: facilitating communication among
        those disciplines which deal with phases of American civilization; fostering
        interdisciplinary research; encouraging the establishment of regional societies for
        American studies; and attempting to attract interested laymen to membership of the
        Association… 1

        Further, ASA’s Constitution provides as follows:

        ARTICLE I: Name and Object
        Sec. 1. The name of this society shall be the American Studies Association
        Sec. 2. The object of the association shall be the promotion of the study of American
        culture through the encouragement of research, teaching, publication, the strengthening of
        relations among persons and institutions in this country and abroad devoted to such
        studies, and the broadening of knowledge among the general public about American
        culture in all its diversity and complexity. 2
        Consistent with the above, ASA’s Form 990 for 2011, the most recent publicly available,

provides that ASA’s mission or most significant activities (Part I, Line 1) and Mission (Part III,

Line 1) are as follows:

        THE AMERICAN STUDIES ASSOCIATION IS THE NATION'S OLDEST AND
        LARGEST ASSOCIATION DEVOTED TO THE INTERDISCIPLINARY STUDY OF
        AMERICAN CULTURE AND HISTORY

    B. ANTI-SEMITIC ROOTS OF MODERN BOYCOTT MOVEMENT

       The history of Arab boycotts of Jews predates the creation of the State of Israel and was

directed at Jews in the then British Mandate of Palestine at least as far back as the early 1920s. 3 The

Arab League was formed in 1944 and its boycott started in 1945, 4 prior to the creation of the State

of Israel, and was directed at denying Jews a state. The Arab League boycott, which picked up

steam in the early 1970s, led to the passage of federal and state anti-boycott legislation in the United

1
  ASA Articles of Incorporation, as amended. Exhibit A, attached hereto.
2
  http://www.theasa net/about/page/constitution_and_bylaws/ Exhibit B, attached hereto.
3
  The earliest Arab boycotts? http://elderofziyon.blogspot.com/2013/12/the-earliest-arab-boycotts html#.UsGOpD-
A2AY
4
  Congressional Research Service, Arab League Boycott of Israel (Dec. 19, 2013),
http://www.fas.org/sgp/crs/mideast/RL33961.pdf


                                                        4
States, an expression of U.S. public policy against international boycotts singling out Israel. 5

        The modern Boycott, Divest and Sanction (BDS) movement, including the Palestinian

Campaign for the Cultural and Academic Boycott of Israel (PACBI) 6 and U.S. Campaign for

the Cultural and Academic Boycott of Israel (“USACBI”), 7 was an outgrowth of the NGO

Forum 8 held at the 2001 Durbin conference in South Africa. The Durban conference and NGO

forum devolved into such blatant anti-Semitism that the United States walked out. 9

        On the grounds of the U.N. conference itself, the Arab Lawyers Union distributed
        pamphlets filled with grotesque caricatures of hook-nosed Jews depicted as Nazis,
        spearing Palestinian children, dripping blood from their fangs, with missiles bulging from
        their eyes or with pots of money nearby. Attempts to have the group's U.N. accreditation
        revoked were refused.

        Under the tent where the final NGO declaration was approved over the weekend -- a
        document that indicts Israel as a "racist, apartheid state" guilty of genocide and ethnic
        cleansing -- fliers were found with a photo of Hitler and the following question: "What if
        Hitler had won? There would be no Israel, and no Palestinian bloodshed."

        In a Palestinian-led march with thousands of participants, a placard was held aloft that
        read "Hitler Should Have Finished the Job." Nearby, someone was selling the most
        notorious of anti-Jewish tracts, "The Protocols of the Elders of Zion." 10

        Former Congressman Tom Lantos was a witness 11 to the Durban Conference and the NGO

forum in particular:

        Another ring in the Durban circus was the NGO forum, taking place just outside the
        conference center. Although the NGO proceedings were intended to provide a platform for
        the wide range of civil society groups interested in the conference’s conciliatory mission,

5
  Congressional Research Service, Arab League Boycott of Israel (April 19, 2006),
http://www.fas.org/sgp/crs/mideast/RS22424.pdf
6
  http://www.pacbi.org/
7
  http://www.usacbi.org/
8
  NGO FORUM AT DURBAN CONFERENCE 2001, http://www.ngo-
monitor.org/article/ngo_forum_at_durban_conference_
9
  U.S., Israel Walk out of U.N. Conference, http://archive.adl.org/durban/durban_090401d.html
10
   Jewish Activists Stunned by Hostility, Anti-Semitism at Durban Conference,
http://www.jewishfederations.org/page.aspx?id=2279; see also, Anti-Semitic Materials and Slogans Continue to
Proliferate; Jewish Delegates Met With Chant: "Kill The Jews", http://archive.adl.org/durban/durban_083101 html;
Congressman Tom Lantos has more on the
11
   The Durban Debacle: An Insider’s View of the UN World Conference Against Racism,
https://web.archive.org/web/20100611233823/http://www.fletcher.tufts.edu/forum/archives/pdfs/26-
1pdfs/Lantos9.pdf


                                                        5
        the forum quickly became stacked with Palestinian and fundamentalist Arab groups. Each
        day, these groups organized anti-Israeli and anti-Semitic rallies around the meetings,
        attracting thousands. One flyer which was widely distributed showed a photograph of
        Hitler and the question “What if I had won?” The answer: “There would be NO Israel…”
        At a press conference held by Jewish NGO’s to discuss their concerns with the direction
        the conference was taking, an accredited NGO, the Arab Lawyers Union, distributed a
        booklet filled with anti-Semitic caricatures frighteningly like those seen in the Nazi hate
        literature printed in the 1930s. Jewish leaders and I who were in Durban were shocked at
        this blatant display of anti-Semitism. For me, having experienced the horrors of the
        Holocaust first hand, this was the most sickening and unabashed display of hate for Jews I
        had seen since the Nazi period.

        Sadly, but perhaps not surprisingly, the official NGO document that was later adopted by
        a majority of the 3,000 NGOs in the forum branded Israel a “racist apartheid state” guilty
        of “genocide” and called for an end to its “racist crimes” against Palestinians….

        The result of the NGO forum at Durban was the issuance of demands and accusations 12

which form the core of the BDS, PACBI and USACBI boycott campaigns and rhetoric:

        423. Call for the launch of an international anti Israeli Apartheid movement as
        implemented against South African Apartheid through a global solidarity campaign
        network of international civil society, UN bodies and agencies, business communities and
        to end the conspiracy of silence among states, particularly the European Union and the
        United States.
        424. Call upon the international community to impose a policy of complete and total
        isolation of Israel as an apartheid state as in the case of South Africa which means the
        imposition of mandatory and comprehensive sanctions and embargoes, the full cessation
        of all links (diplomatic, economic, social, aid, military cooperation and training) between
        all states and Israel. Call upon the Government of South Africa to take the lead in this
        policy of isolation, bearing in mind its own historical success in countering the
        undermining policy of "constructive engagement" with its own past Apartheid regime.

       The BDS movement quickly took up the Durban NGO forum anti-Israel boycott agenda.

There is no doubt that the academic boycott movement is part of the larger BDS movement

spawned by the Durban NGO Forum. One of the founders of the academic boycott movement,

after the ASA vote, wrote: 13

       The Palestinian Campaign for the Academic and Cultural Boycott of Israel (PACBI) is an

12
  http://academic.udayton.edu/race/06hrights/WCAR2001/NGOFORUM/Palestinans htm
13
  Omar Barghouti, A Tipping Point?, http://www.insidehighered.com/views/2014/01/03/essay-growth-support-
boycott-israeli-universities


                                                      6
        integral part of the BDS movement….

     Starting in 2002 14 and thereafter in 2004, 15 the BDS movement issued calls for wide-ranging

boycotts of Israel. The 2005 final boycott call by “Palestinian civil society” led to the PACBI and

USACBI guidelines, which ASA referenced in the process leading up to the ASA Resolution, all as

discussed below.

     C. HISTORY OF ASA BOYCOTT RESOLUTION

        By July 2005, a group of Palestinian non-governmental organizations and individuals had

issued a final call (the “Boycott Call”) for a worldwide economic, cultural, political and

academic boycott of the State of Israel, premised on a variety of alleged Israeli offenses (which

of course, supporters of Israel dispute). The Boycott Call text 16 provided, in pertinent part, as

follows:

        We, representatives of Palestinian civil society, call upon international civil society
        organizations and people of conscience all over the world to impose broad boycotts and
        implement divestment initiatives against Israel similar to those applied to South Africa in
        the apartheid era. We appeal to you to pressure your respective states to impose embargoes
        and sanctions against Israel. We also invite conscientious Israelis to support this Call, for
        the sake of justice and genuine peace.

        These non-violent punitive measures should be maintained until Israel meets its obligation
        to recognize the Palestinian people’s inalienable right to self-determination and fully
        complies with the precepts of international law by:

        1. Ending its occupation and colonization of all Arab lands and dismantling the Wall
        2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full
        equality; and
        3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their
        homes and properties as stipulated in UN resolution 194.

        In 2005, guidelines as to how this boycott call would be applied to academic boycotts

14
    http://www.ngo-
monitor.org/article/factsheet_palestinian_campaign_for_the_academic_and_cultural_boycott_of_israel_pacbi_
15
    Call for Academic and Cultural Boycott of Israel, July 6, 2004, http://pacbi.org/etemplate.php?id=869
16
   http://www.bdsmovement net/activecamps/academic-boycott Exhibit C, attached hereto.


                                                       7
were issued by PACBI. 17 In 2009, USACBI, 18 a U.S. version of PACBI, was formed to pursue

the PACBI guidelines.

       Beginning no later than the ASA’s Annual Meeting in November 2012, the ASA Caucus

on Academic and Community Activism (the “Activism Caucus”) took under consideration an

academic boycott resolution modeled on the Boycott Call and the PACBI and USACBI

guidelines (emphasis added):

       Nearly 80 people attending the American Studies Association annual meeting in San Juan
       took part in a Caucus on Academic and Community Activism session calling for the
       American Studies Association to support the call for boycott of Israeli universities in
       protest of the illegal occupation of Palestine, the infringements of the right to education of
       Palestinian students, and the academic freedom of Palestinian scholars and students in the
       West Bank, Gaza, and Israel.
       The Caucus gathered nearly 150 signatures from conference attendees supporting a
       resolution asking ASA to honor the call of Palestinian civil society for a boycott of Israeli
       academic institutions and to support the protected rights of students and scholars
       everywhere to engage in research and public speaking about Israel-Palestine and in support
       of the boycott, divestment and sanctions (BDS) movement.
       The ASA resolution is modeled on PACBI, the 2004 call by Palestinian academics and
       intellectuals for an academic and cultural boycott which took inspiration from the
       Boycott campaign against South African apartheid. 19
       At some point during or after the 2012 Annual Meeting, the Activism Caucus began a

Petition drive 20 calling upon ASA to adhere to the academic boycott of Israel as delineated by

USACBI (emphasis added, italics in original):

                                                      *    *    *
       Be it resolved that the American Studies Association endorses and will honor the call of
       Palestinian civil society for a boycott of Israeli academic institutions.




17
   http://www.pacbi.org/ Exhibit D, attached hereto.
18
   http://www.usacbi.org/
19
   http://www.theasa net/caucus_activism/item/academic_and_cultural_boycott_campaign/ Exhibit E, attached hereto.
20
   http://www.change.org/petitions/members-of-the-asa-support-resolution-to-boycott-israeli-academic-institutions
Exhibit F, attached hereto.


                                                       8
       Be it also resolved that the ASA supports the protected rights of students and scholars
       everywhere to engage in research and public speaking about Israel-Palestine and in
       support of the boycott, divestment and sanctions (BDS) movement.

       IMPORTANT: When you sign this petition, please make sure to put your institution in the
       "street address field."

       For more information, please see http://www.usacbi.org
       At some point after the 2012 Annual Meeting, the Activism Caucus presented the

Resolution to the ASA National Council:

       The ASA Caucus on Academic and Community Activism will present a Resolution to the
       ASA executive committee to Honor the Call of Palestinian Civil Society for a Boycott of
       Israeli Academic Institutions. We urge all ASA members to sign in support of the
       resolution. You can read and sign the resolution at
       http://www.change.org/petitions/members-of-the-asa-support-resolution-to-boycott-of-
       israeli-academic-institutions-4†21



       On or about December 4, 2013, the ASA National Council approved the boycott

Resolution, resolving as follows, in operative part (emphasis added):

       It is resolved that the American Studies Association (ASA) endorses and will honor the
       call of Palestinian civil society for a boycott of Israeli academic institutions. It is also
       resolved that the ASA supports the protected rights of students and scholars everywhere to
       engage in research and public speaking about Israel-Palestine and in support of the boycott,
       divestment, and sanctions (BDS) movement. 22

        After the National Council vote endorsing the academic boycott, the Resolution was put to

an online membership vote concluding on December 15, 2013. A group of eight past Presidents of

ASA objected that ASA was engaged in what amounted to a one-sided propaganda campaign: 23

        We believe academic boycotts to be antithetical to the mission of free and open inquiry for
        which a scholarly organization stands. For all the reasons outlined in a letter to the
        Council signed by many ASA members including the eight former presidents writing you
        today, we see an academic boycott as setting a dangerous precedent by sponsoring an
        inequitable and discriminatory policy that would punish one nation’s universities and
        scholars. Our task is to open conversation, not to close it off, and to do so with those who
21
   http://www.theasa net/caucus_activism/ Exhibit G, attached hereto.
22
   http://www.theasa net/american_studies_association_resolution_on_academic_boycott_of_israel Exhibit H,
attached hereto.
23
   http://www.scribd.com/doc/190925302/ASA-President-s-Letter-Opposing-Boycott-Israel-Resolution Exhibit I,
attached hereto.


                                                       9
         reflect ideas (and support policies) with which many of us may strongly disagree.

         We are also deeply concerned by the process by which the ASA Council has put this
         decision to the membership. ASA Members were provided only the resolution and a link
         to a website supporting it. Despite explicit requests, the National Council refused to
         circulate or post to the ASA’s website alternative perspectives. That the membership vote
         is being undertaken with only one side of a complex question presented seems to us to
         amplify the profound contradictions of the academic boycott strategy, and to compound its
         potentially pernicious consequences….

         A majority of those members voting passed the Resolution. Depending upon which

membership numbers are used (total versus eligible), approximately 25-35% of the membership

voted, with the vote passing by a 2/3 majority of those voting. 24

     D. SCOPE AND NATURE OF THE ASA BOYCOTT

         The academic Boycott Call guidelines of the USACBI, 25 which mirror the PACBI26

guidelines, provide in pertinent part:

                                                          *     *    *
         Academic Boycott Guidelines
         Inspired by the anti-apartheid struggle in South Africa as well as the long tradition of civil
         resistance against settler-colonialism in Palestine, the PACBI Call [4] urges academics
         and cultural workers to comprehensively and consistently boycott all Israeli academic and
         cultural institutions as a contribution to the struggle to end Israel’s occupation,
         colonization and system of apartheid, by applying the following:
         1. Refrain from participation in any form of academic and cultural cooperation,
         collaboration or joint projects with Israeli institutions;
         2. Advocate a comprehensive boycott of Israeli institutions at the national and
         international levels, including suspension of all forms of funding and subsidies to these
         institutions;
         3. Promote divestment and disinvestment from Israel by international academic
         institutions;
         4. Work toward the condemnation of Israeli policies by pressing for resolutions to be
         adopted by academic, professional and cultural associations and organizations;

24
   http://www.theasa net/from_the_editors/item/asa_members_vote_to_endorse_academic_boycott/
25
   http://www.usacbi.org/guidelines-for-applying-the-international-cultural-boycott-of-israel/ Exhibit J, attached
hereto.
26
   See supra note 17 and Exhibit D, attached hereto.


                                                          10
5. Support Palestinian academic and cultural institutions directly without requiring them to
partner with Israeli counterparts as an explicit or implicit condition for such support.”
                                          *    *   *

….PACBI urges academics, academics’ associations/unions and academic institutions
around the world, where possible and as relevant, to boycott and/or work towards the
cancellation or annulment of events, activities, agreements, or projects that promote the
normalization of Israel in the global academy, whitewash Israel’s violations of
international law and Palestinians rights, or violate the boycott. Specifically, the
Palestinian academic boycott against Israel applies to the following events, activities, or
situations:
1. Academic events (such as conferences, symposia, workshops, book and museum
exhibits) convened or co-sponsored by Israeli institutions. All academic events, whether
held in Israel or abroad, and convened or co-sponsored by Israeli academic institutions or
their departments and institutes, deserve to be boycotted on institutional grounds. These
boycottable activities include panels and other activities sponsored or organized by Israeli
academic bodies or associations at international conferences outside Israel. Importantly,
they also include the convening in Israel of meetings of international bodies and
associations.
2. Institutional cooperation agreements with Israeli universities or research institutes.
These agreements, concluded between international and Israeli universities, typically
involve the exchange of faculty and students and, more importantly, the conduct of joint
research. Many of these schemes are sponsored and funded by the European Union (in the
case of Europe), and independent and government foundations elsewhere. For example,
the five-year EU Framework programs, in which Israel has been the only non-European
participant, have been crucial to the development of research at Israeli universities.
European academic activists have been campaigning for the suspension of the EU-Israel
Association Agreement since 2002; under this Agreement, Israeli and European
universities exchange academic staff and students and engage in other activities, mainly
through the Erasmus Mundus and Tempus schemes [5]. It should be noted that Israel is in
violation of the terms of this Agreement, particularly of the second article [6].
3. Study abroad schemes in Israel for international students. These programs are usually
housed at Israeli universities and are part of the Israeli propaganda effort, designed to give
international students a “positive experience” of Israel. Publicity and recruitment for these
schemes are organized through students’ affairs offices or academic departments (such as
Middle East and international studies centers) at universities abroad.
4. Addresses and talks at international venues by official representatives of Israeli
academic institutions such as presidents and rectors.
5. Special honors or recognition granted to official representatives of Israeli academic
institutions (such as the bestowal of honorary degrees and other awards) or to Israeli
academic or research institutions. Such institutions and their official representatives are
complicit and as such should be denied this recognition.



                                          11
       6. Palestinian/Arab-Israeli collaborative research projects or events, especially those
       funded by the various EU and international grant-giving bodies. It is widely known that
       the easiest route to securing a research grant for a Palestinian academic is to apply with an
       Israeli partner…
       7. Research and development activities in the framework of agreements or contracts
       between the Israeli government and other governments or institutions. Researchers in such
       projects are based at American, European or other universities. Examples include the
       United States-Israel Binational Science Foundation (BSF), an institution established by the
       US and Israeli governments in 1972 to sponsor research by Israelis and Americans, and
       the “Eureka Initiative,” a European inter-governmental initiative set up in 1985 that
       includes Israel as the only non-European member.
       8. Research and development activities on behalf of international corporations involving
       contracts or other institutional agreements with departments or centers at Israeli
       universities.
       9. Institutional membership of Israeli associations in world bodies. While challenging such
       membership is not easy, targeted and selective campaigns demanding the suspension of
       Israeli membership in international forums contribute towards pressuring the state until it
       respects international law. Just as South Africa’s membership was suspended in world
       academic–among other–bodies during apartheid, so must Israel’s.
       10. Publishing in or refereeing articles for academic journals based at Israeli universities.
       These journals include those published by international associations but housed at Israeli
       universities. Efforts should be made to re-locate the editorial offices of these journals to
       universities outside Israel.
       11. Advising on hiring or promotion decisions at Israeli universities through refereeing the
       work of candidates [7], or refereeing research proposals for Israeli funding institutions.
       Such services, routinely provided by academics to their profession, must be withheld from
       complicit institutions. [footnotes omitted]
                                                 *    *   *

       The ASA National Council, in conjunction with endorsing the boycott Resolution, issued

certain of its own guidelines purporting to limit its understanding of the scope of the boycott. Those

limitations, however, were not incorporated into the Resolution and are not binding on ASA. The

ASA guidelines purporting to scale back the scope of the boycott can be changed, altered, expanded

or disregarded at any time.

       The purported ASA boycott limitations as to how the USACBI boycott would be

implemented were set forth in the following documents:



                                                 12
        1. What Does the Academic Boycott Mean for the ASA? 27

        2. Frequently Asked Questions about the Academic Boycott (PDF) 28

        3. Sample Letter to Administrators (PDF) 29

        4. ASA Website - ASA Points_for_talking_to_administrators_about_boycott 30

        Even these ASA boycott guidelines, not expressed in the Resolution, commit ASA as an

organization to boycott all interactions with Israeli academic institutions, all faculty of such

institutions to the extent acting as representatives of such institutions or the Israeli government, and

all faculty having administrative titles indicating an official capacity or acting on behalf of the

government of Israel.

        Public statements by ASA that the boycott does not apply to individual Israel faculty

members are incorrect. Under the Resolution and even ASA’s purported guidelines, the boycott

covers all Israeli faculty members, but exempts some from the boycott’s sanctions.

        Accordingly, under these ASA operational guidelines a faculty member or researcher at an

Israeli academic institution would not be boycotted only if able to show that he or she was not

acting in a representative or official capacity. No other academic from any other nation is subjected

to such a litmus test by ASA.

        An Israeli faculty member or researcher who also held an administrative title, such as

Assistant Dean for Academic Affairs, would be sanctioned under the boycott automatically, without

exception. The boycott also would apply to Israeli academics visiting at universities in the United

States or holding joint appointments, if they act in a representative or administrative capacity.

        The ASA boycott also will apply to programs run jointly by U.S. and Israeli academic


27
   http://www.theasa net/what_does_the_academic_boycott_mean_for_the_asa/ Exhibit K, attached hereto.
28
   http://www.theasa net/images/uploads/ASA_Boycott_FAQs.pdf Exhibit L, attached hereto.
29
   http://www.theasa net/images/uploads/Sample_letter_to_administrators.pdf Exhibit M, attached hereto.
30
   No longer available on ASA website, Exhibit N, attached hereto.


                                                       13
institutions, such as the pending Cornell-Technion campus in New York City. 31

        The ASA boycott has no end date or identifiable objective which would cause the ASA

boycott to end. Instead, ASA will look for guidance to USCABI and PACBI, as reflected in the

document What Does the Academic Boycott Mean for the ASA?, referenced above:

        7) What is required for an Israeli university to no longer be subject to the boycott?

        This is a difficult question to answer. The boycott is designed to put real and symbolic
        pressure on universities to take an active role in ending the Israeli occupation and in
        extending equal rights to Palestinians. The international boycott, divestment, and sanctions
        movement has called for a boycott to be in effect until these conditions are met. (See
        http://www.usacbi.org/mission-statement/)


     E. ASA BOYCOTT IS NOT IN FURTHERANCE OF ASA’s EXEMPT PURPOSE
        BECAUSE IT IS NOT “EDUCATIONAL” UNDER THE CODE

        §501(c)(3) of the Code provides for the exemption from federal income tax of

organizations organized and operated exclusively for charitable and educational purposes

(emphasis added):

        Corporations, and any community chest, fund, or foundation, organized and operated
        exclusively for religious, charitable, scientific, testing for public safety, literary, or
        educational purposes, or to foster national or international amateur sports competition
        (but only if no part of its activities involve the provision of athletic facilities or
        equipment), or for the prevention of cruelty to children or animals, no part of the net
        earnings of which inures to the benefit of any private shareholder or individual, no
        substantial part of the activities of which is carrying on propaganda, or otherwise
        attempting, to influence legislation (except as otherwise provided in subsection (h)), and
        which does not participate in, or intervene in (including the publishing or distributing of
        statements), any political campaign on behalf of (or in opposition to) any candidate for
        public office. (26 U.S.C.A. § 501(c) (3))

       Similarly, Treas. Reg. § 1.501(c)(3)-1(d) provides that the exempt purpose must be
exclusive (emphasis added):




31
  Ground-breaking on new Cornell-Technion Institute of Technology in NYC to begin next month,
http://www.jpost.com/International/Ground-breaking-on-new-Cornell-Technion-Institute-of-Technology-in-NYC-to-
begin-next-month-336173


                                                     14
           (d) Exempt purposes--(1) In general. (i) An organization may be exempt as an
           organization described in section 501(c)(3) if it is organized and operated exclusively
           for one or more of the following purposes:
           (a) Religious,
           (b) Charitable,
           (c) Scientific,
           (d) Testing for public safety,
           (e) Literary,
           (f) Educational, or
           (g) Prevention of cruelty to children or animals.

       Treas. Reg. § 1.501(c)(3)-1 provides, in pertinent part, that there is both an organizational
and operational test (emphasis added):

           (a) Organizational and operational tests.

           (1) In order to be exempt as an organization described in section 501(c)(3), an
           organization must be both organized and operated exclusively for one or more of the
           purposes specified in such section. If an organization fails to meet either the
           organizational test or the operational test, it is not exempt.

           (2) The term exempt purpose or purposes, as used in this section, means any purpose or
           purposes specified in section 501(c)(3), as defined and elaborated in paragraph (d) of this
           section.

           *     *    *

           (c) Operational test—

           (1) Primary activities. An organization will be regarded as operated exclusively for one
           or more exempt purposes only if it engages primarily in activities which accomplish one
           or more of such exempt purposes specified in section 501(c)(3). An organization will
           not be so regarded if more than an insubstantial part of its activities is not in furtherance of
           an exempt purpose.

           An organization will not be recognized as tax-exempt if more than an insubstantial part of

its activities are not in furtherance of an exempt purpose. 32

           To operate “exclusively” for exempt purposes does not mean that there must be an
           absence of nonexempt purposes…. A single activity might be directed to both an exempt
           and a nonexempt purpose. Our inquiry must determine whether the nonexempt purpose is
           incidental and not substantial. If the nonexempt purpose is substantial, the organization



32
     Treas. Reg. § 1.501(c)(3)-1(c)(1).


                                                     15
           will not satisfy the operational test regardless of the number or importance of truly exempt
           purposes. 33

           The test for whether an activity is “substantial” is a matter not just of quantity, but of the

quality of the act.

           “To determine when disqualifying activities are present to a “significant extent” (that is,
           when they become “substantial”), more must be considered than the ratio they bear to
           activities in furtherance of exempt purposes. The quality of such acts are as important as
           their quantity.” 34

           ASA’s boycott Resolution causes ASA to fail to meet both the organizational and

operational tests. While ASA was originally organized exclusively for an exempt purpose, the

Resolution changes the nature of ASA’s organization. As an organization, ASA now is

organized to operate the academic boycott of Israel as part of the larger BDS campaign, in

addition to other activities. Moreover, the ASA Resolution now also is an operational activity of

ASA.

           The academic boycott, however, is not an educational activity as defined in the Code and

Regulations. Treas. Reg. § 1.501(c)(3)-1 provides, in pertinent part (emphasis added):

           (d) (3) Educational defined--(i) In general. The term educational, as used in section
           501(c)(3), relates to:

           (a) The instruction or training of the individual for the purpose of improving or
           developing his capabilities; or (b) The instruction of the public on subjects useful to
           the individual and beneficial to the community. An organization may be educational
           even though it advocates a particular position or viewpoint so long as it presents a
           sufficiently full and fair exposition of the pertinent facts as to permit an individual or the
           public to form an independent opinion or conclusion. On the other hand, an organization is
           not educational if its principal function is the mere presentation of unsupported opinion.

           While there is no per se rule that boycotts vitiate exempt status, the Service has considered

the lack of “economic boycotts, reprisals, or picketing” as important in upholding exemption for



33
     In Re Peoples Prize, T.C. Memo 2004-12, 87 T.C.M. 813 (2004) (citations omitted).
34
     GCM 34631, at 4 (Oct. 04, 1971).


                                                         16
non-educational organizations devoted to social causes. 35 For educational organizations, the

concept of an academic boycott (putting aside the national origin and religious aspects) is even

more contrary to the purpose of an educational exemption.

        ASA’s academic boycott does not fulfill ASA’s exempt purpose in that it is not

instructional to individuals in improving or developing their capabilities or instruction of the

public. The holding of seminars or other instructional events would not require the cutting off of

relations with other academics.

        The act of academic boycott, as distinct from expressions of opinion or providing education

on the subject of the Middle East dispute, is a uniquely anti-educational act.

        An academic boycott, if implemented as required by the Boycott Call, PACBI and

USACBI guidelines restricts collaboration between U.S. and Israeli academic institutions and

therefore stifles academic freedom and weakens relations among persons and institutions. That

is what ASA has committed itself to in the Resolution. Even taking ASA’s own guidelines into

account, the academic boycott cuts off much of the Israeli academic world from interaction with

ASA, and encourages members to honor the boycott as well.

        ASA’s boycott also is not in furtherance of ASA’s educational exempt purpose of

promoting the study of American civilization and culture. 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.

        In addition, ASA’s discriminatory boycott of only Israeli academic institutions is not

reasonably related to the accomplishment of its educational purpose of promoting the study of


35
  Rev. Rul. 68-438, 1968-2 C.B. 209 (An organization formed and operated to lessen racial and religious prejudice in
housing and public accommodations by disseminating the results of its investigations and research and does not
engage in economic boycotts, reprisals, or picketing is exempt under section 501(c)(3)); Rev. Rul. 72-228, 172-1
C.B. 148 (An organization formed to promote equal rights for women by investigating instances of discrimination in


                                                        17
American civilization and culture. The singling out of Israel is a political act, but it is not an

“educational” act as defined in the Code and Regulations.

        The anti-educational nature of ASA’s academic boycott is reflected in the condemnation

of the ASA boycott as anti-educational and anti-academic freedom by the leading non-partisan

educational groups.

        American Council on Education

        The American Council on Education (“ACE”) is “the nation’s most visible and influential

higher education association.” 36 ACE represents over 1700 mostly higher education institutional

members. ACE has termed academic boycotts in general, and anti-Israel boycotts such as that

passed by ASA specifically, as contrary to educational purposes: 37 ACE President Molly Corbett

Broad’s Statement on Boycotts of Israeli Academic Institutions:

        In recent weeks, several scholarly associations have voted on formal motions to boycott
        activities involving faculty and staff at Israeli academic institutions. Such actions are
        misguided and greatly troubling, as they strike at the heart of academic freedom—a
        central tenet of the teaching, research and service that takes place every day at colleges
        and universities worldwide. This is why the American Council on Education has
        consistently opposed such boycotts throughout its nearly 100-year history. 
 

        Many of these same scholars would decry efforts by trustees, governors or state legislators
        to infringe on faculty teaching and research activities at their own institutions, and yet
        these boycotts involve more sweeping repercussions, impeding global academic
        relationships and the constructive exchange of ideas among countries and cultures. One
        could easily see such boycotts moving to other countries and scholarly pursuits, which
        would only lead to a further erosion of academic freedom and free thought in a world that
        is so desperate for it.
 
 
 

        We hope the leadership of these organizations soon reconsiders their actions and trust that
        other scholarly organizations will see the troubling implications of such boycotts and
        avoid similar votes.




employment and does not engage in economic boycotts, reprisals, or picketing, is exempt under section 501(c)(3)).
36
   http://www.acenet.edu/about-ace/Pages/default.aspx
37
   http://www.acenet.edu/news-room/Pages/ACE-President-Molly-Corbett-Broad-Statement-on-Boycotts-of-Israeli-
Academic-Institutions.aspx


                                                        18
        Association of American Universities

        The Association of American Universities (“AAU”) 38 is the leading university

association comprising over 60 public university systems and major individual private

universities. The AAU issued the following statement 39 in response to the ASA boycott:

        The Executive Committee of the Association of American Universities strongly opposes a
        boycott of Israeli academic institutions. Three U.S. scholarly organizations have now
        expressed support for such a boycott. Any such boycott of academic institutions directly
        violates academic freedom, which is a fundamental principle of AAU universities and of
        American higher education in general.
        Academic freedom is the freedom of university faculty responsibly to produce and
        disseminate knowledge through research, teaching, and service, without undue constraint.
        It is a principle that should not be abridged by political considerations. American colleges
        and universities, as well as like institutions elsewhere, must stand as the first line of
        defense against attacks on academic freedom.
        Efforts to address political issues, or to address restrictions on academic freedom, should
        not themselves infringe upon academic freedom. Restrictions imposed on the ability of
        scholars of any particular country to work with their fellow academics in other countries,
        participate in meetings and organizations, or otherwise carry out their scholarly activities
        violate academic freedom. The boycott of Israeli academic institutions therefore clearly
        violates the academic freedom not only of Israeli scholars but also of American scholars
        who might be pressured to comply with it. We urge American scholars and scholars
        around the world who believe in academic freedom to oppose this and other such
        academic boycotts.
        William C. Powers, President, The University of Texas at Austin – Chair
        Amy Gutmann, President, University of Pennsylvania – Vice Chair
        Scott S. Cowen, President, Tulane University – Past Chair
        Richard H. Brodhead, President, Duke University
        Michael V. Drake, Chancellor, University of California, Irvine
        Bernadette Gray-Little, The University of Kansas
        Mark A. Nordenberg, Chancellor, University of Pittsburgh
        Morton O. Schapiro, President, Northwestern University
        Lou Anna K. Simon, President, Michigan State University
        David Skorton, President, Cornell University
        Hunter R. Rawlings III, President, Association of American Universities – ex-officio


        Association of Public and Land Grant Universities

38
  http://www.aau.edu/about/default.aspx?id=58
39
  http://www.aaup.org/report/academic-boycotts also available at
http://www.aau.edu/WorkArea/DownloadAsset.aspx?id=14859


                                                       19
        The Association of Public and Land Grant Universities (“APLU”)
        is a research, policy, and advocacy organization representing 219 public research
        universities, land-grant institutions, state university systems, and related organizations.
        Founded in 1887, APLU is the nation's oldest higher education association with member
        institutions in all 50 states, the District of Columbia, and four U.S. territories. 40

The APLU has issued the following statement 41 opposing the ASA boycott:

        APLU Statement in Opposition to Boycott of Israeli Academic Institutions
        January 2, 2014—The Executive Committee and the President of the Association of Public
        and Land-grant Universities (APLU) today issued the following statement on the recent
        call by some scholarly associations for a boycott of Israeli academic institutions.
        The Executive Committee and President of the Association of Public and Land-grant
        Universities (APLU) strongly oppose the boycott of Israeli academic institutions
        supported by certain U.S. scholarly organizations.
        The core mission of the academic community is to create and disseminate knowledge
        through research, teaching and service. Freedom of inquiry and expression are the
        foundational principles of this vital work, and free exchange of ideas is its lifeblood. This
        boycott wrongly limits the ability of American and Israeli academic institutions and their
        faculty members to exchange ideas and collaborate on critical projects that advance
        humanity, develop new technologies, and improve health and well-being across the globe.
        Members of the academic community certainly have the right to express their views, but
        the call for a boycott in this case is severely misguided and wrongheaded. We urge others
        to express their opposition as well.
        Randy Woodson, Chancellor, North Carolina State University, APLU Board Chair
        Sally Mason, President, University of Iowa, APLU Board Immediate Past Chair
        Jim Clements, President, Clemson University, APLU Board Chair-Elect
        Bernadette Gray-Little, Chancellor, University of Kansas, APLU Council of Presidents
        Chair
        Teresa Sullivan, President, University of Virginia, APLU Council of Presidents Secretary
        Peter McPherson, President, APLU



        American Association of University Professors

        The American Association of University Professors (“AAUP”) 42 has been a leader in




40
   http://www.aplu.org/page.aspx?pid=203
41
   http://www.aplu.org/page.aspx?pid=2857
42
   http://www.aaup.org/about/mission-description


                                                   20
protecting academic freedom for close to a century. 43 In 2005, in response to the rise of the

anti-Israel academic boycott movement in Great Britain, AAUP issued a statement 44 rejecting

academic boycotts as an inherent threat to educational value and academic freedom:

        … since its founding in 1915, the AAUP has been committed to preserving and advancing
        the free exchange of ideas among academics irrespective of governmental policies and
        however unpalatable those policies may be viewed. We reject proposals that curtail the
        freedom of teachers and researchers to engage in work with academic colleagues, and we
        reaffirm the paramount importance of the freest possible international movement of
        scholars and ideas.

        In 2006, a committee of the AAUP reiterated its position against academic boycotts, 45

and made the following recommendations, among others:

        1. In view of the Association’s long-standing commitment to the free exchange of ideas,
        we oppose academic boycotts.
        2. On the same grounds, we recommend that other academic associations oppose
        academic boycotts. We urge that they seek alternative means, less inimical to the principle
        of academic freedom, to pursue their concerns.
        3. We especially oppose selective academic boycotts that entail an ideological litmus test.
        We understand that such selective boycotts may be intended to preserve academic
        exchange with those more open to the views of boycott proponents, but we cannot endorse
        the use of political or religious views as a test of eligibility for participation in the
        academic community….
        5. Consistent with our long-standing principles and practice, we consider other forms of
        protest, such as the adoption of resolutions of condemnation by higher education
        groups intended to publicize documented threats to or violations of academic freedom at
        offending institutions, to be entirely appropriate…..
        8. We understand that threats to or infringements of academic freedom may occasionally
        seem so dire as to require compromising basic precepts of academic freedom, but we resist
        the argument that extraordinary circumstances should be the basis for limiting our
        fundamental commitment to the free exchange of ideas and their free expression.

        In May 2013, after a small academic association passed the first an anti-Israel boycott

resolution by a U.S. academic organization, 46 AAUP once again came out against academic

boycotts: 47


43
   http://aaup.org/about/history-aaup
44
   http://www.aaup.org/file/On-Academic-Boycotts.pdf Exhibit O, attached hereto.
45
   See note 44 and Exhibit O, attached hereto.
46
   The Association for Asian American Studies resolution was passed at a forum held at its annual meeting, not by a


                                                         21
         No scholar should be required to participate in any academic activity that violates his or
         her own principles. In addition, faculty members have to right to organize for or against
         economic boycotts, divestment, or other forms of sanction. However, an organized
         academic boycott is a different matter and we are disappointed by the resolution of the
         Association for Asian American Studies and would instead urge that organization and its
         members to find other means to register their opposition to Israeli policies.

         When the ASA boycott resolution was approved by the ASA National Council and put

to a membership vote, AAUP again opposed the academic boycott and issued an Open Letter 48

which reads, in part:

         The AAUP, as an organization, neither supports nor opposes Israeli government or Palestinian
         policies, although many of our members certainly have strong beliefs on one side or the other.
         As the principal and oldest organization of American college and university faculty defending
         academic freedom, we understand that we do not have the organizational capacity to monitor
         academic freedom at institutions in other countries, nor are we in a position to pick and choose
         which countries we, as an organization, might judge. However, the AAUP does stand in
         opposition to academic boycotts as a matter of principle….

         In light of these principles the AAUP recognizes the right of individual scholars to act in
         accordance with their own personal consciences. No scholar should be required to participate
         in any academic activity that violates his or her own principles. In addition, faculty members
         have the right to organize for or against economic boycotts, divestment, or other forms of
         sanction. However, an organized academic boycott is a different matter. In seeking to punish
         alleged violations of academic freedom elsewhere, such boycotts threaten the academic
         freedom of American scholars to engage the broadest variety of viewpoints.

         Individual Universities and Colleges

         As of this this filing, over 100 49 individual university and college presidents have

denounced the ASA academic boycott as a grave threat to the free exchange of ideas necessary

for higher education.

         Here is just a sample of the many dozens of statements issues by university presidents


vote open to the full membership. The resolution is available here:
http://www.aaastudies.org/content/images/files/aaas%204_20_13%20-
%20conference%20resolution%20to%20support%20the%20boycott%20of%20israeli%20academic%20institutions.p
df. The National Council of an even smaller group, the Native American and Indigenous Studies Association has
come out in support of the boycott but no membership vote has taken place yet. http://naisa.org/node/719
47
   http://aaup.org/news/aaup-statement-academic-boycotts Exhibit P, attached hereto.
48
   http://www.aaup.org/file/OpenLettertoASA.pdf Exhibit Q, attached hereto.
49
   List of Universities rejecting academic boycott of Israel, http://legalinsurrection.com/2013/12/list-of-universities-
rejecting-academic-boycott-of-israel/


                                                          22
and provosts, all of which are available online. 50

         Harvard University 51
         Office of the President:
         Academic boycotts subvert the academic freedoms and values necessary to the free flow
         of ideas, which is the lifeblood of the worldwide community of scholars. The recent
         resolution of the ASA proposing to boycott Israeli universities represents a direct threat to
         these ideals, ideals which universities and scholarly associations should be dedicated to
         defend.

         New York University 52
         To the Executive Committee of the American Studies Association:
         We write on behalf of New York University to express our disappointment, disagreement,
         and opposition to the boycott advocated by your organization of Israeli academics and
         academic institutions.
         This boycott is at heart a disavowal of the free exchange of ideas and the free association
         of scholars that undergird academic freedom; as such, it is antithetical to the values and
         tenets of institutions of advanced learning.
         We urge your organization to overturn this boycott.
         Sincerely,
         John Sexton
         President
         David McLaughlin
         Provost

         University of California (System)
         UC President Janet Napolitano made the following statement about the American Studies
         Association’s vote for an academic boycott of Israel:

         The University of California prides itself on a rich tradition of free speech and diversity of
         thought. Universities depend on the unrestrained exchange of ideas, and it is our role to
         defend academic freedom and our scholars’ ability to pursue research of their choice. An


50
   University statements rejecting academic boycott of Israel, http://legalinsurrection.com/2013/12/indiana-wash-u-st-
louis-gwu-northwestern-cornell-reject-academic-boycott-of-israel/
51
   http://www.harvard.edu/president/statement-on-asa-resolution
52
   http://www.nyu.edu/about/news-publications/news/2013/12/20/letter-from-nyu-president-john-sexton-and-provost-
david-mclaughl




                                                         23
           academic boycott goes against the spirit of the University of California, which has long
           championed open dialogue and collaboration with international scholars.


           Fordham University
           As a Jesuit university, Fordham has always been devoted to the pursuit of wisdom and
           learning, a pursuit that is dependent upon and advanced by spirited, principled debate
           between and among scholars. Therefore, although the University certainly recognizes and
           reveres the freedom of conscience of the individual scholars who comprise its faculty, it
           stands resolutely in opposition to the call for the boycott of Israeli universities recently
           advocated by the members of the American Studies Association. We believe that boycotts
           of this kind seriously undermine and hinder the efforts of any intellectual community to
           fulfill its mission in the service of wisdom and learning.


           Joseph M. McShane, S.J.
           President

           Lafayette College 53
           Our mission statement begins, “In an environment that fosters the free exchange of ideas,
           Lafayette College seeks to nurture the inquiring mind.” I am proud that the principle of
           academic freedom is central to our institutional ethos. I believe that any form of academic
           boycott is contrary to that ethos. An economic boycott expresses opposition by
           withholding financial support. Such boycotts can be effective by putting a price tag on
           important values. Restraining the free exchange of ideas, however, and treating
           intellectual discourse as a commodity, cheapens the value of those ideas.

           Rice University
           Rice University highly values the free exchange of ideas and points of view, and we fully
           support the statement of the Association of American Universities (AAU), of which Rice
           is a member. The open exchange of ideas, especially those with which we may disagree, is
           essential to an academic institution and the learning experience. A critical part of our role
           is enabling scholars from all backgrounds and countries to collaborate, exchange ideas and
           explore controversies. For this reason, we do not support the boycott of Israeli academic
           institutions, and we condemn the attempts of some American academic organizations to
           organize and support such boycotts. As the AAU noted, the principle of academic freedom
           should not be compromised by political agendas or differences. We cannot advocate that
           scholars anywhere be deprived of the academic freedom that we so strongly encourage on
           our own campus.
           David W. Leebron
           President of Rice University

53
     http://www.lafayette.edu/about/news/2013/12/28/statement-on-american-studies-association-boycott/


                                                         24
        Swarthmore College 54
        Statement from President Rebecca Chopp on ASA Resolution
        December 28, 2013
        Academic freedom is the most cherished of all principles within the academy and the
        foundation stone of what makes the academy invaluable in a democratic society. I strongly
        oppose the recent resolution of the ASA proposing to boycott Israeli universities, which
        represents a direct threat to that freedom.

        Barnard College 55
        Barnard College President Debora Spar issued the following statement on December 29,
        2013:
        As President of Barnard, I stand with the Executive Committee of the Association of
        American Universities in my strong opposition to a boycott of Israeli academic
        institutions. All scholars have the right to speak out against issues or policies with which
        they disagree, but academic boycotts pose a threat to the intellectual exchange and open
        debate that sit at the very core of our educational mission. I would urge fellow scholars
        and their affiliated academic associations to seek alternative forms of protest that do not
        jeopardize academia’s crucial role as a marketplace for independent thinking and
        collaborative dialogue.

        Florida Atlantic University 56
        We support academic freedom and the freedoms of speech and association it entails, and
        we reject the boycott passed by the American Studies Association in the strongest terms.
        Their decision contradicts the very foundation of higher education in our society—to serve
        as a place where the civil exchange of ideas is fostered. We call on the American Studies
        Association to rescind their disturbing decision immediately.
                                                   *        *       *

        These denunciations of the ASA academic boycott are important not just because they

show that ASA has engaged in an unpopular view. As the Service has held, 57 mere expression

of an unpopular view is not ground for tax exemption revocation.

        Rather, an academic boycott is an act that is anti-educational, that seeks to deprive

everyone, not just those boycotted, of the interaction among scholars that the higher educational


54
   http://www.swarthmore.edu/presidents-office/statement-from-president-rebecca-chopp-on-asa-resolution.xml
55
   https://www.barnard.edu/news/president-debora-l-spars-response-asa-resolution
56
   http://www.fau.edu/president/blog/blog-entry-122813.php


                                                       25
community considers essential to education and the protection of academic freedom.

        ASA’s academic boycott, and its damaging effects on education, cannot be viewed in

isolation. ASA subjects academic institutions and faculty from no other nation to restrictions or

litmus tests. The current President of ASA justified singling out Israel because “one has to start

somewhere.” 58

        While it is unlikely that ASA itself will boycott any nation other than Israel given the

nature of the BDS movement, 59 the justifications offered by the ASA President would justify

academic boycotts against many nations.

        Despite the massive U.S. aid to Egypt, and restrictions on academic freedoms there,

Egyptian universities are not boycotted. So too, Chinese universities are not boycotted despite the

occupation of Tibet and restrictions on academic and other freedoms. Turkish universities are not

boycotted even though Turkey occupies northern Cyprus and represses Kurdish nationalism. 60

Universities in Arab countries such as Saudi Arabia, where there is explicit discrimination against

non-Muslims and women, are not boycotted. An official from an Iranian university will be

welcomed by ASA, but an official from an Israeli university will be boycotted.

        Certainly academic boycotts would not stop at water’s edge if the anti-Israel boycotters were

intellectually consistent. Given intense and routine academic complaints of institutionalized racism

and violation of indigenous rights in the United States, the wide involvement of U.S. universities in

defense research, and various fences, walls and other border barriers, surely the anti-Israel


57
   Rev. Rul. 80-278, 1980-2 C.B. 175.
58
   http://www.nytimes.com/2013/12/16/us/scholars-group-to-disclose-result-of-vote-on-an-academic-boycott-of-
israel html?_r=0
59
   Alan Dershowitz, Boycotting Israeli universities: A victory for bigotry, http://www haaretz.com/opinion/.premium-
1.563920
60
   Turkey also is building a tall wall to keep out Syrians, http://www.hurriyetdailynews.com/turkey-builds-new-wall-
along-syria-border.aspx?pageID=238&nID=60427&NewsCatID=341. The Israeli separation barrier built after a
relentless suicide bombing campaign, is a frequent complaint of the BDS movement and part of the alleged
justification for boycotts.


                                                        26
boycotters would have to support a boycott of their own universities and themselves. And so too,

the anti-Israel academic boycotters would have to support foreign boycotts of American universities

for the same reason.

        Now you can understand why the leadership of American academia is so strongly

against academic boycotts and views such efforts as anti-educational. If academic boycotts start

with Israel, where do they stop?

        As AAUP points out, there are other truly educational means of expressing disagreement

with the policies of a foreign government, and as the President of Lafayette College pointed out,

an academic boycott is unlike an economic boycott in the quality of the act.

        As Henry Richman, chair of AAUP's Committee on Academic Freedom and Tenure, wrote

in opposition to the academic boycott, ASA has engaged in condemnations of governmental

policy in the past, falling far short of an academic boycott: 61

        In 2006 the ASA adopted a resolution condemning the U.S. invasion of Iraq, noting
        among other things that the invasion "threaten[ed] academic freedom" (whether in Iraq,
        the U.S., or both is unclear). Were I an ASA member I would surely have supported that
        resolution. Yet the ASA did not even consider an academic boycott of American
        universities in response to the American occupation of Iraq as they do now in response to
        the less murderous Israeli occupation of Palestine. Well, some might say, they can't really
        advocate a boycott of themselves, can they?
If ASA wanted to express disapproval or somehow educate the public, there were many ways to

do so consistent with its exempt purpose, but an anti-educational academic boycott that puts all of

academia under threat was not one of those ways.

       The fact that ASA has generated a lot of attention from the academic boycott does not

make the act of boycott educational. On July 31, 2002, a bomb planted by Hamas blew up in

the cafeteria of Hebrew University in Jerusalem, one of the institutions boycotted by ASA,


61
  Against Academic Boycotts, http://www.insidehighered.com/views/2013/12/12/essay-criticizing-concept-academic-
boycotts


                                                      27
killing seven people including five Americans. 62 That bombing generated a lot of attention for

the Palestinian cause, but it was not educational. So too ASA’s act of destroying academic

freedom through an academic boycott may generate publicity, but it is not an educational act.

         The resolution of whether the academic boycott is educational also does not turn on the

anti-Israeli hostility of those members of ASA who pursued and passed the resolution. The

issue as to tax exempt status would be the same if ASA implemented an academic boycott of

academic institutions and faculty in Arab countries as an expression of support for Israel.

         Many of the university Presidents and non-partisan associations have gone out of their

way to point out that they take no sides in the Middle East dispute, but view academic boycotts

as inherently destructive to the educational process. The consensus is overwhelming

throughout non-partisan higher education leadership, as demonstrated above. 63

         We urge the Service to put great weight on this non-partisan consensus, which is

completely consistent with the term “educational” as used in the Code and Regulations.

“Palestinian civil society” cannot override the Code and Regulations, or the consensus of

American civil society as to what promotes education.

         The gravity of threat posed by the ASA academic boycott to education itself should

guide the Service in finding that the act of engaging in the academic boycott by ASA is not

“educational” under the Code and Regulations.

         There also is no doubt that the academic boycott is a significant act of ASA. The

boycott will require monitoring and implementation by ASA. More important, the academic

boycott has come to define ASA for the academic community.


62
   http://mfa.gov.il/MFA/MFA-
Archive/2002/Pages/Terrorist%20bombing%20at%20Hebrew%20University%20cafeteria%20-.aspx
63
    There are, of course, individuals hostile to Israel who believe that ASA has a right to boycott Israel to put pressure
on the government. Whether ASA has that “right” is irrelevant, since the issue here is only whether the boycott is


                                                           28
        Whether other forms of boycott in other contexts by organizations with other exempt

purposes passes muster is not something the Service need resolve on this complaint. The issue

here is very specific to an exempt “educational” organization exercising an academic boycott.

    F. ASA BOYCOTT ALSO IS DISCRIMINATORY AND CONTRARY TO PUBLIC
       POLICY

        In addition to not being “educational,” the ASA boycott is discriminatory and contrary to

public policy.

        The Supreme Court and the Service have consistently held that under the principles of

charitable trust law, the purpose or activities of a charitable or educational organization may not be

illegal or contrary to public policy. 64 This doctrine was famously applied in Bob Jones University

v. United States, 461 U.S. 574 (1983), where the Court ruled that the University’s policies,

though legal, discriminated on the basis of race and therefore violated public policy. Therefore,

revocation of the University’s §501(c)(3) tax-exempt status was warranted under the public

policy doctrine:

        Section 501(c)(3) therefore must be analyzed and construed within the framework of the
        Internal Revenue Code and against the background of the Congressional purposes. Such
        an examination reveals unmistakable evidence that, underlying all relevant parts of the
        Code, is the intent that entitlement to tax exemption depends on meeting certain common
        law standards of charity—namely, that an institution seeking tax exempt status must serve
        a public purpose and not be contrary to established public policy. (461 U.S. at 586)

        As detailed above, ASA’s academic boycott violates a clear public policy against such

boycotts as widely accepted in the academic community.

        In addition, ASA’s boycott explicitly discriminates on the basis of national origin. As 70

ASA members, including eight Past Presidents, wrote in opposition to the academic boycott



“educational” for exempt purposes.
64
   See, e.g., Rev. Rul. 80-278; Rev. Rul. 71-447, 1971-2 C.B. 230; Rev. Rul. 75-384, 1975-2 C.B. 204; General
Counsel Memorandum 34631; and General Counsel Memorandum 38415.


                                                        29
(emphasis added): 65

        A fundamental principle of academia is academic freedom; the belief that scholars must be
        free to pursue ideas without being targeted for repression, discipline, or institutional
        censorship. The adoption of an academic boycott against Israel and Israelis would do
        violence to this bedrock principle. Scholars would be punished not because of what they
        believe – which would be bad enough – but simply because of who they are based on their
        nationality.

        In no other context does the ASA discriminate on the basis of national origin – and
        for good reason. This is discrimination pure and simple. Worse, it is also
        discrimination that inevitably diminishes the pursuit of knowledge, by discarding
        knowledge simply because it is produced by a certain group of people….

        The President and Provost of the University of Maryland, in addition to objecting to the

anti-educational nature of the boycott, noted the discriminatory basis (emphasis added): 66

        …. In the United States, we can disagree with the governmental policies of a nation
        without sanctioning the universities of that nation, or the American universities that
        collaborate with them. To restrict the free flow of people and ideas with some
        universities because of their national identity is unwise, unnecessary, and
        irreconcilable with our core academic values.
The President of Wesleyan University similarly noted that the national origin discrimination made
this boycott particularly pernicious: 67

        But the boycott is a repugnant attack on academic freedom, declaring academic
        institutions off-limits because of their national affiliation.
The President of Franklin & Marshall College also wrote about how damaging “national

affiliation” academic boycotts are (emphasis added): 68

        Franklin & Marshall College rejects the call of the American Studies Association for a
        boycott of Israeli academic institutions. Boycotting colleges and universities based on
        national affiliation or alleged government transgressions arbitrarily and unfairly
        penalizes students and faculty. It limits academic freedom, scholarly inquiry and
        scientific research, cross-cultural discourse, political discussion, the growth of
        knowledge, and the free exchange of ideas in every field.


65
   http://www.scribd.com/doc/187635747/Letter-in-Opposition-to-the-ASA-s-Proposed-Resolution-on-
AcademicBoycott-of-Israeli-Academic-Institutions
66
   http://www.umdrightnow.umd.edu/news/statement-umd-president-and-provost-opposing-boycott-israeli-academic-
institutions
67
   http://articles.latimes.com/2013/dec/19/opinion/la-oe-roth-academic-boycott-israel-20131219
68
   http://www.fandm.edu/president/messages-from-the-president#boycott


                                                     30
         Although ostensibly discriminating only on the basis of Israeli national origin, there can be

little doubt based on the history of the BDS movement that the ASA boycott is based on and will

discriminate on the basis of the Jewish religion, as it relates to Israeli academics. (See discussion

above in Section B. Anti-Semitic Roots of Modern Boycott Movement.)

         The Service cannot ignore that the ASA boycott is a direct descendant of the anti-Semitic

Durban NGO forum and an indirect descendant of the anti-Semitic Arab boycotts of Jews dating

back to before the creation of the State of Israel.

         Indeed, the elimination of the Jewish national identity of Israel is part of the mission of

USACBI and PACBI, upon which ASA based its Resolution and as to which ASA relies for a

determination of when the academic boycott ends:

         These non-violent punitive measures should be maintained until Israel meets its obligation
         to recognize the Palestinian people’s inalienable right to self-determination and fully
         complies with the precepts of international law by:
         1. Ending its occupation and colonization of all Arab lands and dismantling the Wall;
         2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full
         equality; and
         3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their
         homes and properties as stipulated in UN resolution 194.” 69
Based on the history, political purpose and terms of the Boycott Call as implemented by the BDS

movement and the USACBI and PACBI guidelines, to which ASA has committed itself by

Resolution, there is a distinctly anti-Jewish aspect of the boycott.

         The singling out of Israeli academic institutions and faculty for boycott is, as both former

Harvard President Lawrence Summers 70 and the President of Loyola University Maryland 71 have

pointed out, anti-Semitic in effect if not in intent. That is not surprising given the direct roots of the

academic boycott in the anti-Semitic Durban NGO forum.


69
   http://www.usacbi.org/mission-statement/ Exhibit R, attached hereto.
70
   Lawrence Summers: Academic boycott of Israel is “anti-Semitism in effect”,
http://legalinsurrection.com/2013/12/lawrence-summers-academic-boycott-of-israel-is-anti-semitism-in-effect/
71
   University statements rejecting academic boycott of Israel, http://legalinsurrection.com/2013/12/indiana-wash-u-st-


                                                         31
        There is a clear public policy against religious discrimination in public life, since the

earliest days of our nation. 72

        In operation, the boycott must reflect this religious bias, in addition to a national origin

component. Given the nature of the boycott and its source in hostility to the Jewish majority

presence in Israel, it is unlikely in practice that ASA would refuse to deal with non-Jewish Israeli

Arab academics who otherwise would be covered by the boycott.

        New York Human Rights Law, §296(13) prohibits boycotts based on national origin:

        It shall be an unlawful discriminatory practice (i) for any person to discriminate against,
        boycott or blacklist, or to refuse to buy from, sell to or trade with, any person, because of
        the race, creed, color, national origin, sexual orientation, military status or sex of such
        person, or of such person's partners, members, stockholders, directors, officers, managers,
        superintendents, agents, employees, business associates, suppliers or customers, or (ii) for
        any person wilfully to do any act or refrain from doing any act which enables any such
        person to take such action. This subdivision shall not apply to: (a) Boycotts connected
        with labor disputes; or (b) Boycotts to protest unlawful discriminatory practices.

        The ASA boycott does not fall under the exception for protests against “unlawful

discriminatory practices” because it applies uniformly to all Israeli academic institutions and

faculty. It is this broad national origin discrimination which the law was intended to prevent. The

provision in the NY Human Rights law quoted above was a direct response to the Arab League

boycott of Israel. 73

        Although one of the objectives behind the enactment of section 296 (subd. 13) of the
        Executive Law was to curb the discriminatory business practices of corporations which
        resulted from the pressures of foreign governments, including the Arab boycott of Jewish
        businesses and individuals …. its broad language prohibiting discrimination in a wide
        range of commercial activity is not confined to boycotts imposed by foreign countries. In
        fact, as then Governor Carey observed in his memorandum of approval, the legislation
        was intended to “affirm * * * that no nation or person is welcome to do business in this


louis-gwu-northwestern-cornell-reject-academic-boycott-of-israel/
72
   George Washington’s Letter to The Touro Synagogue, Newport, RI, 1790: “May the children of the Stock of
Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one
shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
http://en.wikisource.org/wiki/Letter_to_Touro_Synagogue
73
   Mehtani v. NY Life Ins. Co., 145 A.D.2d 90, 94, 537 N.Y.S.2d 800, 803 (1st Dept. 1989).


                                                         32
        state, if that business is accompanied by religious or racial bigotry” (1975 McKinney's
        Session Laws, p. 1765 [emphasis supplied] ). 74

California has a similar statute, Cal.Civ.Code § 51.5, which provides in pertinent part:

        (a) No business establishment of any kind whatsoever shall discriminate against, boycott
        or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this
        state on account of any characteristic listed or defined in subdivision (b) or (e) of Section
        51, or of the person's partners, members, stockholders, directors, officers, managers,
        superintendents, agents, employees, business associates, suppliers, or customers, because
        the person is perceived to have one or more of those characteristics, or because the person
        is associated with a person who has, or is perceived to have, any of those characteristics.

        (b) As used in this section, “person” includes any person, firm, association, organization,
        partnership, business trust, corporation, limited liability company, or company.

ASA does business in New York and California, has numerous members in in such states; and its

current President is based in California and its President-Elect is based in New York.

        The Service need not find that ASA violates a specific law in order to find that the anti-

Israel boycott is against public policy. The public policy against discrimination on the basis of

national origin or religion is our national policy, across many areas of public policy, including but

not limited to, employment law. 75

        For example, NY Executive Law §96(4) provides in part, for example (emphasis added):

        4. It shall be an unlawful discriminatory practice for an education corporation or
        association which holds itself out to the public to be non-sectarian and exempt from
        taxation pursuant to the provisions of article four of the real property tax law to deny the
        use of its facilities to any person otherwise qualified, or to permit the harassment of any
        student or applicant, by reason of his race, color, religion, disability, national origin,
        sexual orientation, military status, sex, age or marital status, except that any such
        institution which establishes or maintains a policy of educating persons of one sex
        exclusively may admit students of only one sex.

        Moreover, U.S. anti-boycott laws prohibit U.S. persons, including U.S. non-profit

organizations, from participating in boycotts that are unsanctioned by the United States. These


74
  Holly v. Pennysaver Corp., 98 A.D.2d 570, 471 N.Y.S.2d 611 N.Y.A.D. 2 Dept.,1984 (citations omitted).
75
  U.S. State Anti-Discrimination Law, http://www.thelawfareproject.org/us-state-anti-discrimination-law html; see
also, e.g., Title VII of the Civil Rights Act of 1964, http://www.eeoc.gov/laws/statutes/titlevii.cfm


                                                        33
rules are set forth in the Export Administration Regulations (“EAR”) issued under the Export

Administration Act, as amended, and the Ribicoff Amendment to the 1976 Tax Reform Act

(“TRA”). 76 The U.S. Department of Commerce, Office of Antiboycott Compliance (“OAC”)

provides the following background on the purpose and objectives of the U.S anti-boycott laws:

        To encourage, and in specified cases, require U.S. firms to refuse to participate in
        foreign boycotts that the United States does not sanction. They have the effect of
        preventing U.S. firms from being used to implement foreign policies of other
        nations which run counter to U.S. policy. The Arab League boycott of Israel is the
        principal foreign economic boycott that U.S. companies must be concerned with
        today. The antiboycott laws, however, apply to all boycotts imposed by foreign
        countries that are unsanctioned by the United States. 77

        The Export Administration Act defines boycotts as: refusing, or requiring any other person

to refuse, to do business with or in the boycotted country, with any business concern organized

under the laws of the boycotted country, with any national or resident of the boycotted country, or

with any other person, pursuant to an agreement with, a requirement of, or a request from or on

behalf of the boycotting country. 78 Numerous state anti-boycott laws mirror the federal statute. 79

        Under the principles of charitable trust law, the purpose or activities of a charitable or

educational organization may not be illegal or contrary to public policy. 80 Boycotts of Israeli

academic institutions are unsanctioned by the United States. 81

        There is an argument that ASA is not violating the federal and state anti-boycott laws

because it is not responding to a country-sponsored boycott call. The Service need not resolve that

issue on this complaint, because regardless of whether ASA is violating the federal and state anti-

76
   Export Administration Regulations (currently codified at 15 C.F.R. Parts 730 - 774 (2013) issued under the
authority of the Export Administration Act of 1979, as amended (50 U.S.C. §§ 2401-2420 (2000)) and 26 U.S.C. §
999.
77
   See https://www.bis.doc.gov/index.php/enforcement/oac
78
   Section 2407(a)(1)(A) of the Export Administration Act of 1979 (PL 96-72 of September 29, 1979) as amended.
79
   U.S. State Anti-Discrimination Law, http://www.thelawfareproject.org/us-state-anti-discrimination-law html.
80
   See supra note 64.
81
   See U.S. Relations with Israel Fact Sheet, Bureau of Near Eastern Affairs, Department of State, November 28,
2012 viewed at http://www.state.gov/r/pa/ei/bgn/3581.htm



                                                       34
boycott laws, it is violating the clear public policy against such international boycotts directed at

Israel. The violation of the public policy in itself is enough to warrant revocation of ASA’s tax

exempt status.

        ASA’s boycott is in direct conflict with fundamental U.S. public policy that prohibits tax-

exempt educational organizations from engaging in discriminatory activities or otherwise violating

public policy. As a result, ASA is no longer “organized and operated exclusively for charitable

purposes” and does not serve a public purpose as required under §501(c)(3) and revocation of

§501(c)(3) tax-exempt status is warranted.


                                           CONCLUSION


        ASA’s boycott of Israel is (1) not in furtherance of ASA’s educational exempt purpose;

(2) contrary to U.S. public policy prohibiting discrimination on the basis of national origin or

religion; and (3) contrary to U.S. public policy against international boycotts singling out Israel.

        As a result, ASA is no longer “organized and operated exclusively for charitable or

educational purposes” and does not primarily serve a public purpose as required under §501(c)(3).

Accordingly, we respectfully request the Service to investigate this matter and make a

determination that ASA’s boycott of Israeli academic institutions and faculty adversely impacts its

§501(c)(3) tax-exempt status and that revocation of its §501(c)(3) tax-exempt status is required

under the law.




                                                   35

				
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