Mondoweiss reports that the Seattle Education Association (SEA) passed a resolution endorsing the boycott, divestment, and sanctions (BDS) movement and also called for an end to collaboration between the Seattle police and Israeli military.  While I cannot give legal advice, SEA may have exposed itself to something called ultra vires, or "outside powers."

An ultra vires act can conceivably put a nonprofit organization's tax exemption at risk.  The American Studies Association (ASA) was in fact sued under the ultra vires doctrine but had the suit dismissed because the court found that an anti-Israel boycott did not violate its charter or bylaws.  "The boycott resolution was aimed both at encouraging academic freedom for Palestinians and strengthening relations between American institutions and Palestinians.  At the very least, it was 'reasonably in furtherance of the objects' [sic] of the ASA.  Thus, it was not contrary to the ASA's express purposes." It looks to me as though ASA was lucky to have had the right language in its charter or mission statement.  Others such as the SEA and the NEA, which also are contemplating support of the BDS movement, might or might not have this escape route.

It is to be noted that the 501(c)(3) tax-exempt Jewish Voice for Peace, despite its own repugnant support for BDS, appears to operate intra vires (within its mission statement), but the SEA's mission statement from its 2018 Form 990 says only "To promote the cause of public education on behalf of its members."  Its bylaws state that it "shall exist for the purpose of representing the employees of the Seattle School District in their employment relations with the District; and for the development of the public understanding of the objective of education, the promotion of it's [sic] goals, and for encouraging the professional growth of the corporation's members." Yes, the Seeatul Edjukashun Assosheashun uses "it's" as the possessive form, which is yet another good argument for homeschooling, charter schools, and indeed anything other than the public schools at which SEA's members teach.

The IRS's opinion is the only one that counts as to whether support for BDS is ultra vires for 501(c) nonprofit organizations.  The IRS will probably be more receptive to Form 13909 complaint with objective evidence it can verify for itself, as opposed to having to take the complainant's word for it.

It Takes Two to Cancel

A class-action suit might be another way to take down a BDS-supporting nonprofit.  While I can't give legal advice, it looks as though it takes exactly two people to "cancel" any 501(c)(3) professional organization or 501(c)(5) union that supports the BDS movement and whose charter or bylaws do not give it the necessary latitude as ASA's apparently did.  One is an attorney with standing to file a class-action suit, and the other is at least one disgruntled member as a plaintiff to represent the class.  The Louis D. Brandeis Center for Human Rights sued the ASA on behalf of some members. If you are an SEA member who does not want your dues used to support BDS, you might want to contact the LDB.  "The LDB said that the motion [relating to the Modern Language Association] 'seeks unprecedented action from the MLA that is far beyond the capacity and powers set forth in the MLA's corporate charter' [i.e., ultra vires] and is 'also inconsistent with the mission and programs that the MLA reports to the IRS.'"  The MLA, however, had the good sense to back away from this agenda, so nothing further came of it.  The mission that the SEA reported to the IRS on its Form 990 consists solely of "To promote the cause of public education on behalf of its members," which means (again, not legal advice) that it might not be able to dodge the same litigation bullet the ASA did.

Here is where things get even better, or worse depending on your perspective.  "Ultra Vires Acts: Why Nonprofits Must Follow Their Articles & Bylaws" says, "D&O policies typically exclude ultra vires acts from coverage and corporate indemnification is generally not available to those acting outside the scope of their authority," which means that the directors or officers can be held personally liable, whereas the agitators for BDS will probably suffer no consequences whatsoever (as long as they are not directors or officers).  Remember that sacrifices for the Cause always seem to be made by just about everybody but the agitators themselves.  If the directors and officers get sued, or the organization loses its nonprofit status or good name, the BDS people will just walk away from the mess they made and move on to make yet another.

You Just Have to Feel Unsafe

Here is yet another possible angle for disgruntled members of the SEA and similar organizations.  Recent episodes of anti-Semitic violence might, for example, make members feel physically unsafe in a BDS-supporting professional organization or union.  Whether they are unsafe is immaterial; all that is necessary is that they believe reasonably that the organization might be physically unsafe for anybody who is discovered to support Israel.  Even more reasonable is the belief that the organization is not professionally safe for supporters of Israel regardless of their religion, and "professionally unsafe" could carry over into unequal treatment and unequal opportunity for the members in question.  A good lawyer could probably do quite a bit with this, while public statements that "I no longer feel professionally safe here" are reasonable expressions of opinion.

In the meantime, if SEA is actually representative of teachers in Seattle, communities should move immediately to defund the public schools in favor of vouchers that students can use to attend cyber-schools or charter schools of their choice to avoid being taught hatred of Israel and possibly Jews in general, and that "it's" is possessive.

The National Education Association (NEA) also is contemplating a BDS vote.  The NEA's  Form 990 as filed in 2019 says its mission is to advocate for education professionals and "fulfill the promise of public education to prepare every student to succeed[.]"  The United Teachers Los Angeles (UTLA) is contemplating a similar vote.

Don't Make Your Nonprofit the Nonviolent Counterpart of a War Zone

The BDS movement is the repugnant, but nonviolent and legal, civilian-side support element for an actual war by terrorists against the Middle East's only democracy.  War makes BDS-supporters legitimate targets for whatever nonviolent and lawful means the other side deploys against them.  Form 13909s are not even a dime a dozen, as they come in electronic form, can be filled out with objective evidence the IRS can verify for itself and can be filed electronically in less than half an hour.  The kind of litigation described above takes substantially more effort, but the instant your organization joins the BDS movement, it, and possibly its directors and officers, will be squarely in the crosshairs.  The smart thing to do is tell the BDS agitators to take their agenda elsewhere to avoid turning your nonprofit union or professional society into the civil counterpart of a war zone, with some of your own members turning on you as well.

Civis Americanus is the pen name of a contributor who remembers the lessons of history and wants to ensure that our country never needs to learn those lessons again the hard way. The author is remaining anonymous due to the likely prospect of being subjected to "cancel culture" for exposing the Big Lie behind Black Lives Matter.

Image via Pixy.

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