by Eugene Kontorovich
October 17, 2014
In early November, the American Studies Association will be having its annual meeting at the Westin Bonaventure Hotel in Los Angeles. Per the ASA’s recently adopted policy, Israeli academics will be subject to unique exclusionary restrictions based on their national origin.
The use of a public accommodation for such a discriminatory event has led a civil rights group to warn the hotel that hosting the conference could violate California’s civil rights laws. The Unruh Civil Rights Act provides that “no business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, or refuse to buy from, contract with, sell to, or trade with any person in this state on account of” national origin and other characteristics. It also extends liability to those who “aid or incite” a denial or rights under the law.
I am not an expert on the application of California’s anti-discrimination laws, but the notion that a public accommodation cannot host an event that itself violates the law would at least seem consistent with the text of the statute. I also happen to generally disfavor anti-discrimination laws on, among other things, First Amendment (free association) grounds, but unfortunately for the ASA, these arguments do not fare well in courts. The ASA’s argument that it does not bar Israelis, but only Israelis who attend as representatives of their academic institutions, will not likely help them much, as the normal way for academics to attend academic conferences is as representatives of their institutions. In any case, this argument amounts to saying the ACA is not discriminating as much as they could have, which is not an advisable defense in discrimination cases…….