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July 31, 2015 / 15 Av, 5775
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UPDATE Tax Exempt Status of Academics to Be Challenged over Boycott

A law professor will challenge the tax exempt status of the American Studies Association, because academic boycotts of Israeli universities is not in their mission statement or an activity privileged with tax exemption
Law Professor William Jacobson to challenge ASA's tax exempt status if it boycotts Israeli universities

Law Professor William Jacobson to challenge ASA's tax exempt status if it boycotts Israeli universities

SEE UPDATE AT END OF ARTICLE

Members of the American Studies Association, an academic group of university professors of American Studies, voted to approve an academic boycott of Israeli universities.

Its members vote tonight, Sunday, Dec. 15, on whether to ratify that decision.

But one legal academic will use Internal Revenue Service regulations in an effort to hamper anti-Israel activity.

The resolution on which the ASA members are voting calls on it

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.

William A. Jacobson is a clinical professor at Cornell Law School.  He announced Sunday evening on his popular blog, Legal Insurrection, that if the ASA votes in favor of the boycott, he will challenge the ASA’s tax exempt status (I.R.C. § 501 (c)(3)).

His challenge has real teeth.

Jacobson logically points out that such a boycott would violate two essential legal standards of the ASA’s tax exempt status.

First, the ASA’s legal purpose as defined in its bylaws – an essential element in the application for an organization’s tax exempt status application – does not include an academic boycott of Israeli universities. According to the ASA’s mission statement, it is “devoted to the interdisciplinary study of American culture and history.” Nothing about instituting boycotts of foreign universities there.

Second, an academic boycott of Israeli universities by the ASA exceeds the bounds of permissible activity under the §501(c)(3) requirements. Under this regulation, an exempt organization must be “organized and operated exclusively for religious, charitable,…or educational purposes…”  An academic boycott of Israeli universities is beyond the scope of that legal boundary as well.

Jacobson also points to statements made by ASA members opposing the boycott which provide additional legal challenges to the ASA if the ASA boycott of Israel is ratified. For example, such a boycott may violate the New York State Human Rights Law as well as other anti-discrimination statutes. As the ASA opponents wrote:

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.

Jacobson told The Jewish Press Sunday evening that if the ASA ratifies the boycott resolution, his challenge to the tax exempt status of the ASA will be filed with the IRS in Washington, D.C. under the IRS Whistleblower Act, 26 U.S.C. § 7623. The Cornell professor has already engaged the services of an expert in the laws governing non-profit organizations to represent him in this legal challenge.

A final very important point: Jacobson makes clear his challenge has nothing to do with an infringement on the free speech rights of anyone or any organization.  His challenge, instead, is simply an effort to ensure that if the ASA chooses to act beyond the bounds of what is permitted for tax exempt organizations, it cannot expect to continue to benefit from tax exempt status.

UPDATE: Sunday evening, Dec. 15, the American Studies Association voted to ratify the boycott of Israeli universities. As Jacobson noted, although the vote was 2/3s in favor, 1/3 opposed, only one-quarter of the total ASA membership voted.  In other words, just 16 percent of American Studies professors in the official professional organization voted to boycott Israeli universities, but that boycott is now in effect.

EFFECT OF THE BOYCOTT

In practice, the boycott will have very little application beyond the ASA itself not being able to formally collaborate with Israeli universities, or with scholars who represent those universities, or with representatives of the Israeli government.

The boycott is non-binding on individual members of the ASA, and it does not apply to individual Israeli academics, so long as they are neither representatives of the Israeli government or of Israeli academic institutions.

The position of the ASA seems to be that the boycott shall remain in effect until, in their view, the Israeli “occupation” ends and equal rights are extended to Palestinian Arabs.

No mention about the fact that there were no academic institutions of higher learning until the “occupation” began, and that illiteracy rates have plummeted since the “occupation” began.

Professor Jacobson told The Jewish Press he will file his challenge to the ASA very soon, either later this week or next week.

About the Author: Lori Lowenthal Marcus is the US correspondent for The Jewish Press. She is a recovered lawyer who previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email: Lori@JewishPressOnline.com


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4 Responses to “UPDATE Tax Exempt Status of Academics to Be Challenged over Boycott”

  1. Prof. Jacobson should be warned that he is opening a can of worms since there are a considerable number of Jewish organizations whose tax-exempt status might be open to question since their mission statements say nothing about providing funds for illegal Jewish settlements oin the Occupied Palestinian West Bank.

  2. Robert Elias Abu Shanab says:

    I wonder if the ASA resolution were to boycott the Palestinians living under brutal occupation instead of Israel, then would this person follow similar challenge?

  3. Bill Bilek says:

    Perhaps Jeff Blankfort could also tell us when the settlements were adjudicated by an internationally recognized juridical body to be ” illegal”, or when, or by what law or legal process did the disputed territories become “Palestinian”?

  4. Anonymous says:

    Jeff Blankfort, there is nothing "illegal" about Jewish settlements, nor is the "Palestinian West Bank" occupied.

    For something to be illegally held, in law both domestic and international, three issues are relevant: it must be shown that 1, it was obtained illegally, and/or 2, it is currently held illegally, and/or 3, there is no title to it nor legal claim.

    Israel won the post-67 territories legally, in the course of a war of self-defense, something legal to wage in international law. It holds those territories legally, since as UN Resolution 242 requires, the final disposition and even boundaries of those territories must be determined through signed and agreed peace negotiations between the contesting parties, and that has not yet occurred, so Israel entirely legally can retain domination until real peace agreements resolve the issue. And Israel also is the only contesting party with legal title and claim to those territories, since, A., there never was a state of "Palestine" to be "occupied"; it can only come into existence when peace treaties establish its boundaries and legitimacy, and B. the Arabs rejected the UN Partition resolution back in 1947-48, which meant that they rejected also the claim to a separate Arab state just as they continue even now to reject a "Jewish state." The only state left with legal claim in international law was/is Israel. Furthermore, the Palestinian region was held before 1948 by the British specifically and officially to provide for the Jewish establishment of their national home; it was allocated to the Jews in the San Remo Conference of 1920 that first set up the British Mandate, and was reconfirmed by later tribunals.

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