The letter, addressed to the general manager of the Westin Bonaventure Hotel & Suites, argues that by passing a resolution in support of the boycott of Israeli academic institutions, the American Studies Association (ASA) will practice "unlawful discrimination" over who is permitted to attend the meeting, scheduled to take place 4-9 November.

The ASA was the second scholarly association in the US to endorse the academic boycott. The resolution, passed by a two-thirds majority in a referendum last December, commits the association not to enter into formal collaborations with Israeli institutions or individuals who who represent them.

The letter asserts that by hosting the meeting, the hotel is liable for "aiding the ASA in enforcement of this unlawful discriminatory policy at the Annual Meeting on the premises of the Westin Bonaventure."

The American Center for Law and Justice (ACLJ) is known for its litigation aimed at curbing LGBTQ and abortion rights.

New tool of lawfare

While anti-Palestinian groups have waged lawfare against boycott, divestment and sanctions (BDS) activists before, the ACLJ is invoking a new law in this latest effort.

Citing the Unruh Civil Rights Act — a California law that prohibits businesses and organizations from denying services to individuals on the basis of "sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation" — the letter threatens the hotel with litigation if they assist in such alleged discrimination.

ACLJ states that because the majority of Israelis are Jewish, "the exclusionary policy is likely to have a disparate impact on Jewish Israelis—thereby discriminating on the basis of race and religion."

Liz Jackson, a lawyer with Palestine Solidarity Legal Support, told The Electronic Intifada that the Unruh Civil Rights Act "is being raised as a threat and it has not been litigated in this context before, but there is no doubt, as the US Supreme Court has ruled, that boycotts for the purposes of civil rights are protected by the First Amendment."

"The Unruh Act cannot prohibit people from boycotting institutions based on human rights concerns," Jackson added.

The American Civil Liberties Union has defended the ASA’s boycott as constitutionally protected free speech.

Moroever, the discrimination being alleged has not occurred and no evidence suggests it will. The ASA has in fact invited and scheduled Israeli Jewish scholars to speak at the conference.

Completely false

"The allegations in the letter of complaint are completely false," ASA executive director John Stephens wrote in a statement. "No one will be prohibited from participating in the annual meeting, which includes Jewish/Israeli scholars on session panels… No Israeli institution or anyone acting in a representative capacity has tried to register for the conference and been denied, nor been denied any other opportunity to attend or participate."

This is the not the first time legal threats have been made to the ASA since it endorsed the boycott.

At the beginning of this year, Shurat HaDin, a lawfare group with ties to Israeli intelligence, sent a letter to the the American Studies Association also threatening litigation under New York’s anti-discrimination law. However, nothing was ever pursued.

Boycott is a right

Jackson explained that Shurat HaDin’s claims in New York were especially weak because New York’s law specifically exempts boycotts that are intended to protest discriminatory policies. This protection is absent from the California law. 

In fact, as the ACLJ letter states, the Unruh Act specifically bars boycotting persons or groups on the basis of race, religion or national origin.

But Jackson emphasized that nevertheless the First Amendment protects boycotts organized to protest human rights violations.

"ASA’s action could not be considered discrimination, let alone discrimination based on animus toward the religion, race or national origin of any individual or institution. ASA’s actions are undertaken because of the policies of politically accountable leaders in the Israeli government," Jackson said.

The ASA’s endorsement of the resolution is based on the fact that Israeli academic institutions are complicit in state policies that violate Palestinian human rights and because Palestinians do not enjoy academic freedoms under Israeli occupation.

The ASA affirms explicitly that the boycott does not apply to individuals: "We are expressly not endorsing a boycott of Israeli scholars engaged in individual-level contacts and ordinary forms of academic exchange, including presentations at conferences, public lectures at campuses, and collaboration on research and publication."

Moreover, in answer to the question of whether Israeli scholars are permitted to participate in ASA conferences or lectures, the association responds simply, "Yes."

However, as the letter states, the Unruh Civil Rights Act actually extends protections to "any person, firm, association, organization, partnership, business trust, corporation, limited liability company, or company."

"It is an accurate reading of the Unruh act that an institution could be considered a 'person’ who suffers discrimination with standing to bring a lawsuit," Jackson acknowledges.

"But in order to have a lawsuit, there still has to be actual discrimination, based on national origin. Here, there is none, because no one is being excluded from the conference. Furthermore, the ASA, like other organizations, advocates academic boycott based on academic institutions’ complicity in discrimination and subjugation of Palestinians, not based on national origin."

What is the ACLJ?

While ACLJ claims to virtuously uphold the laws against discrimination in its letter to the Westin Bonaventure, its work is driven by religious zeal and dedication to promoting anti-gay, anti-abortion and anti-Muslim causes. ACLJ is in fact the legal arm of Christian Advocates Serving Evangelism, Inc.

Founded by the far-right Southern Baptist minister Pat Robertson in 1990, ACLJ’s docket has been dominated by opposing same-sex marriage, outlawing abortion and evangelizing its anti-homosexual agenda in Africa.

The face and chief counsel of ACLJ, Jay Sekulow, who describes himself as a "Messianic Jew," was close to Mitt Romney during the 2012 presidential elections.

According to a Mother Jones report, Sekulow and his son began lobbying politicians in Africa in 2010 — when several countries were implementing constitutional reforms — in hopes they would "take the Christian’s views into consideration as they draft legislation and policies."

ACLJ was on the frontlines protesting the plans for the Park 51 Islamic Community Center in New York City, arguing in a lawsuit that building it would be "deeply offensive to many Americans."

The letter to the Westin Bonaventure Hotel was sent on 13 October and gave the hotel five days to respond. The ASA’s John Stephens told The Electronic Intifada that his group has not heard anything from the hotel and is going forward with its plans to hold its meeting early next month.

Editor’s note: Since the publication of this post, the Westin Bonaventure has issued a statement. It reads: "The Westin Bonaventure does not discriminate and is committed to meeting the requirements of the Unruh Civil Rights Act at all times. The hotel respects the privacy of our groups and guests, and we do not choose, nor refuse, to do business based upon ideologies or affiliations. We are in the business of hospitality, and if rooms are available, anyone may reserve accommodations and receive the benefit of our services."