Legal battle in US federal court over academic freedom and right to boycott for Palestinians

In Washington, DC, this week, a case dating back a decade about academic freedom and the right to boycott was finally brought before a US federal court. This occurred at a time when tensions are escalating in the US and globally concerning freedom of expression in the context of Israel and Palestine.

The question at hand is whether academics crossed a line by joining an anti-Israel boycott. In their defense, they argue that this falls within their constitutional rights, emphasizing that the case has already been thrown out on numerous occasions.

In federal court on Wednesday morning, Maria LaHood, deputy legal director at the Center for Constitutional Rights, passionately defended Steven Salaita, emphasizing that his advocacy and expression of views on matters of public interest are fully protected.

The case, Bronner versus Duggan, stems from the American Studies Association’s decision in December 2013 to boycott Israeli academic institutions, a vote endorsed by 66 per cent of the academic group at the time. 

Those who took part considered it an act of support by US academics following calls by their Palestinian counterparts to use BDS (Boycott, Divestment and Sanctions) to protest Israeli human rights violations against Palestinians.

Three years later, several members of the ASA filed a suit alleging the body’s vote violated the group’s bylaws and fiduciary responsibilities. In 2018, they added two new defendants, including Salaita, who did not work in academia and hadn’t been on the ASA board at the time of the vote.

Salaita, a Palestinian American academic focused on Native American and other indigenous studies, is probably best known for his job offer of tenured professor being rescinded from the University of Illinois in 2014 due to his social media posts critical of Israel’s bombardment of Gaza that year. Represented by CCR in a suit against the university, he received a settlement for US$875,000 in 2015.

Now, he is arguably the most prominent name on the side of the defence in another case related to Palestinian academic freedom.

This case is one of many that have come up in recent years related to the rights of students and faculty to boycott Israel. So far, more than 35 US states have passed anti-BDS laws, though this has not been supported at the federal level, likely due to the strong protection of free speech under the constitution.

Speaking with The New Arab after the oral arguments, LaHood describes this case as a strategic lawsuit against public participation, or a SLAPP, whose purpose is to wear down defendants in instances where the plaintiff doesn’t have a strong case. About half the states, including the District of Columbia, have anti-SLAPP acts.

“I hope the claims of the dismissal will be affirmed. The claims against Dr Salaita were dismissed as a SLAPP, which permits for early dismissal — not early because it’s been a long time, but at least so that the courts aren’t used to chill speech,” she told TNA.

“It’s already been a decade of harassing and intimidating litigation. So, I’m really hoping it will come to an end, especially now as students and faculty are protesting all over this country,” she said.

“Faculty and students are demanding that their schools boycott and divest. And people have the right to do that under the First Amendment.”