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Bronner v. Duggan

United States District Court, District of Columbia

March 6, 2018

SIMON BRONNER, et al., Plaintiffs,
v.
LISA DUGGAN, et al., Defendants.

          MEMORANDUM OPINION, GRANTING PLAINTIFFS' AMENDED MOTION TO EXTEND TIME TO ADD PARTIES [57]; GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [59]

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiffs bring this suit against the American Studies Association (“ASA”) and several of its current and former leaders, including Defendants Lisa Duggan, Curtis Marez, Avery Gordon, Neferti Tadiar, Sunaina Maira, and Chandan Reddy (“Individual Defendants”), alleging that they improperly introduced and implemented a resolution calling for the academic boycott of Israel. This matter now comes before the Court on Plaintiffs' Motion for Leave to File a Second Amended Complaint, in which Plaintiffs seek to assert several new theories of liability for breaches of fiduciary duties, breaches of contract, and ultra vires activity and to add four new defendants to the suit: Jasbir Puar, J. Kehaulani, Kauanui, Steven Salaita, and John Stephens. Pls.' Mot. Leave File Second Amended Compl. (“Pls.' Mot.”), ECF No. 59. For the reasons stated below, the Court will grant the motion. However, the Court has also identified a potential impediment to this Court's subject matter jurisdiction and, therefore, it will require the parties to submit additional briefing on that issue.

         II. BACKGROUND

         A. The American Studies Association

         The ASA is a nonprofit organization whose object is “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.” See Const. & Bylaws of the Am. Studies Ass'n (“ASA Const. & Bylaws”), Const., Art. I, § 2, ECF No. 21-3. The ASA's founding documents provide that the society was “organized exclusively for education and academic purposes.” Am. Verified Compl. Derivative and Direct Claims (“FAC”) ¶ 24, ECF No. 19.

         The ASA is overseen by a President and a “National Council.” The National Council is charged with “conduct[ing] the business, set[ting] fiscal policy, . . . and oversee[ing] the general interests of the [ASA].” ASA Const. & Bylaws, Const., Art. V, § 2. There are 23 voting members of the National Council. FAC ¶ 74; ASA Const. & Bylaws, Const., Art. V, § 1. In addition, there is a President who presides over the National Council and has a duty to “fulfill the chartered obligations and purposes of the [ASA].” ASA Const. & Bylaws, Const., Art. IV, § 2.

         Under the ASA's bylaws, “[n]o substantial part of the activities of the [ASA] shall be the carrying on of propaganda, or otherwise attempting, to influence legislation, and the corporation shall not participate in, or intervene in . . . any political campaign on behalf of any candidate for public office.” FAC ¶ 25. According to Plaintiffs, the ASA has conformed to these rules for decades and has established a “uniform practice” that prevents the ASA from advocating for particular positions on U.S. government policy. FAC ¶ 25. Based “solely on the condition and understanding that this practice would be followed, ” Individual Plaintiffs donated time and money to the ASA. FAC ¶ 26.

         B. ASA's Boycott Resolution

         In November 2013, at the ASA's annual meeting, ASA leadership introduced a resolution advocating for the boycott of Israeli academic institutions (the “Boycott Resolution” or “Resolution”) on the basis that Israel restricted academic activity in formerly Jordanian-occupied territory that came under Israeli control after the Six Day War in 1967. See FAC ¶¶ 29, 41. The Boycott Resolution states that the ASA is devoted to “the struggle against all forms of racism, ” that the United States helps enable Israel to illegally occupy Palestine, that there is “no effective or substantive academic freedom for Palestinian students and scholars under conditions of Israeli occupation, ” and that the ASA is dedicated to the rights of students and scholars in Israeli institutions. FAC ¶ 31. The Resolution's operative clause states:

[i]t is resolved that the American Studies Association (ASA) endorses and will honor the call of the 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.

FAC ¶ 31. During the presentations in support of the resolution, the proponents allegedly did not present any data or research, did not address how the affected institutions were founded, and did not specifically address “any . . . aspect of the actual state of academic freedom in the [t]erritories at any time.” FAC ¶¶ 43-45. Instead, the speakers' “principal focus” was on an alleged apartheid state in the territories at issue and the need for the ASA to support the ending of “the so-called settler-colonialist Zionist project” and America's support for these policies. FAC ¶ 48. Plaintiffs allege that no speakers in opposition to the resolution were invited to speak during the course of the discussion, FAC ¶ 47, and that Defendants “actively prevented an informed and methodical discussion of the Boycott resolution” in part by actively preventing opponents of the measure from being heard. FAC ¶ 46.

         Ultimately, the resolution passed, but Plaintiffs suggest that Defendants manipulated the vote. According to the complaint, members of the ASA who supported the resolution encouraged their students to join the ASA because they knew the students would vote in favor of the resolution. FAC ¶ 40. Around the same time, at least one Individual Plaintiff attempted to vote but was told by ASA leadership that he could not “ostensibly because he renewed [his ASA membership] too late to vote.” FAC ¶ 35. Plaintiffs allege that at least one other person who renewed his membership just before the vote was allowed to vote despite the individual plaintiff being barred from doing so under similar circumstances. FAC ¶ 38. At the end of voting, the ASA asserted that the resolution passed. FAC ¶ 33.

         Plaintiffs claim that, since the boycott, several members of the ASA have resigned in protest of the boycott, financially depriving the ASA of membership dues for years to come. FAC ¶ 60. Moreover, Plaintiffs allege that the ASA has experienced a significant decline in reputation because of the boycott. FAC ¶ 61. The ASA is alleged to have suffered financial harm as a result of the boycott because of an alleged decrease in donations and an increase in public-relations spending required by the need to deal with the public backlash resulting from the boycott. FAC ¶ 84. Although Plaintiffs do not allege any specific amounts of ...


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