The Washington PostDemocracy Dies in Darkness

Bill to block federal funding to universities that boycott Israel

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The bill was introduced yesterday, HR4009, and provides, in relevant part,

Notwithstanding any other provision of law, an institution of higher education shall not be eligible to receive funds or any other form of financial assistance under this Act [not including student aid funds] if the Secretary determines that such institution is participating in a boycott of Israeli academic institutions or scholars….
For purposes of this section, the Secretary shall consider an institution of higher education to be participating in a boycott of Israeli academic institutions or scholars if the institution, any significant part of the institution, or any organization significantly funded by the institution adopts a policy or resolution, issues a statement, or otherwise formally establishes the restriction of discourse, cooperation, exchange, or any other involvement with academic institutions or scholars on the basis of the connection of such institutions or such scholars to the State of Israel.

Leading First Amendment lawyer Floyd Abrams has said that the bill would be unconstitutional:

The notion that the power to fund colleges and their faculties may be transformed into a tool to punish them for engaging in constitutionally protected expression is contrary to any notion of academic freedom and to core First Amendment principles…. I believe that academic boycotts are themselves contrary to principles of academic freedom but that does not make the legislation being considered any more tolerable or constitutional.

But I think the bill is likely constitutional.

1. Most important, the bill doesn’t restrict university speech based on content or viewpoint — a university doesn’t lose money just for condemning Israel or even praising a boycott, but only for actually boycotting Israel: refusing to deal with Israeli institutions or scholars. (The “adopts a policy or resolution” and “issues a statement,” in context, refers to university policies, resolution, or statements that actually restrict cooperation with Israeli institutions or scholars — i.e., refusals to deal, and not just advocacy of some position.)

2. Now the bill may affect a university’s speech decisions. A university department’s choice of speakers for a conference, for instance, is a decision about what speech to present, and is thus potentially protected by the First Amendment: It constitutes exercise of the university’s freedom of speech, and the related right of freedom of expressive association, which is triggered by association restrictions or association mandates that “affect[ a] group’s ability to express its message.” (See, for instance, the recent Bachelor case, which held that a TV show producer had a constitutional right to make race-based casting decisions.) If the government made it a crime for universities to refuse to invite Israeli speakers, that might well be unconstitutional.

But the question is whether the government can say, “if you take our money, you can’t discriminate against people or institutions because they are connected to Israel.” (Note that the bill would be narrower than an anti-discrimination provision, because it bans only outright boycotts, and not all discrimination, but it’s comparable enough to an anti-discrimination rule that I’ll treat it similarly.) And as to such questions, the Court has generally said yes.

Consider Grove City College v. Bell (1984), where the Court decided that Title IX — the federal ban on sex discrimination by educational programs that get federal funds — didn’t violate the First Amendment. Choices of whom to have as one’s audience in the classroom might well be potentially protected by the First Amendment; a flat ban on single-sex educational institutions, for instance, might face serious First Amendment scrutiny (though it might be upheld despite that). But the Court quickly held that the condition on federal funding posed no First Amendment problem:

Grove City’s final challenge to the Court of Appeals’ decision — that conditioning federal assistance on compliance with Title IX infringes First Amendment rights of the College and its students — warrants only brief consideration. Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept. Grove City may terminate its participation in the BEOG [Basic Educational Opportunity Grants] program and thus avoid the requirements of [Title IX]. Students affected by the Department’s action may either take their BEOG’s elsewhere or attend Grove City without federal financial assistance. Requiring Grove City to comply with Title IX’s prohibition of discrimination as a condition for its continued eligibility to participate in the BEOG program infringes no First Amendment rights of the College or its students.

Now let’s move forward 26 years, to Christian Legal Society v. Martinez (2010). The UC-Hastings law school provided that, to get various university-provided benefits, student groups had “to open eligibility for membership and leadership to all students” — even if that meant that (say) conservative Christian groups couldn’t demand that their members and leaders be Christians who don’t openly flout conservative Christian sexual morality. The groups claimed that this interfered with their freedom of association, and in turn interfered with their ability to choose their speech (since the choice of group members and leaders would inevitably affect the speech that the group produces).

The five-member majority (Justice Kennedy, joined by the more liberal Justices Stevens, Souter, Ginsburg, and Breyer) agreed that a law requiring all groups to let in all comers would face serious First Amendment objections. But the majority concluded that matters were different when it came to conditions on government benefits:

[The Christian Legal Society], in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out.
In diverse contexts, our decisions have distinguished between policies that require action and those that withhold benefits. See, e.g., Grove City College v. Bell. Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its [Registered Student Organization] program, is dangling the carrot of subsidy, not wielding the stick of prohibition.

And under this limited public forum analysis, the majority held, the funding limits were fine. They were reasonable, because they made groups more open to students who wanted to join. (The contrary position may well have been reasonable, too, but the “reasonableness” requirement only requires that the policy be a reasonable policy, not the most reasonable policy or a policy that the Justices would support.) And the requirement to admit all members didn’t discriminate against speech based on the viewpoint of the speech, because it banned the conduct of excluding members or leaders, and not a particular message. Of course, the requirement might disproportionately influence groups that have certain viewpoints, but,

Even if a regulation has a differential impact on groups wishing to enforce exclusionary membership policies, “[w]here the [State] does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” …
The Law School’s policy aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior …. CLS’s conduct — not its Christian perspective — is, from Hastings’ vantage point, what stands between the group and [Registered Student Organization] status. “In the end,” as Hastings observes, “CLS is simply confusing its own viewpoint-based objections to … nondiscrimination laws (which it is entitled to have and [to] voice) with viewpoint discrimination.”

(Of course, the funding condition also embodied the government’s own viewpoint about what student groups should and shouldn’t do — but all rules, even content-neutral and speech-neutral ones, are necessarily founded on some viewpoint about what the rule ought to be.)

3. The federal government thus probably has broad power to say “if you want federal funds, you can’t exclude Israeli institutions and scholars from your programs,” just as it can say “if you want federal funds, you can’t discriminate against women in your programs,” or “if you want university funds, you can’t exclude anyone from membership or leadership in your student organization.” Nor does it matter that the government’s interest in preventing sex discrimination may be seen by some as more weighty than the government’s interest in preventing boycotts against Israel. Grove City College didn’t rely on the strength of the government interest — it relied on what it saw as the weakness of the First Amendment claim when it came to restrictions on government funds.

And Christian Legal Society didn’t even involve a ban on sex, religious, or sexual orientation discrimination (at least as the Court understood the program); it involved a must-take-all-comers rule, and the Court has never said that such rules are somehow supported by especially strong government interests. There too the majority’s argument rested on what it saw as the weakness of the First Amendment claim when it came to restrictions on government funds.

Now one possible objection is that this bill would just ban boycotts of Israeli institutions and scholars and not (say) Chinese, Burmese, or North Korean institutions and scholars. But while that might make the law country-based, it doesn’t make the law into a restriction on speech based on the viewpoint of the university’s speech. The university can still say whatever it wants to say; it just can’t discriminate against people and institutions from one particular American ally. (To the extent that there’s a disparate impact here on the ideas that tend to be held by Israeli scholars and institutions, that’s not a problem for the reasons given by Christian Legal Society.) And country-based discrimination by Congress doesn’t pose constitutional problems.

4. There is one potentially more serious problem with the bill: It would strip federal funds from the entire institution even when a boycott is conducted just by one department. A university’s medical school, for instance, would lose federal funds just because the sociology department conducts a boycott. Opponents of the law could argue that this is barred by the Supreme Court’s decision in FCC v. League of Women Voters (1984) (reaffirmed by Agency for International Development v. Alliance for Open Society International (2013)).

In League of Women Voters, the government in effect provided that public broadcasters would lose all federal funds if they ran their own editorials. The Court said this was unconstitutional. Congress could refuse to allow its subsidies to be used for such editorials. But Congress couldn’t strip the station of funds because it used other, non-federal funds to editorialize.

But League of Women Voters stressed that the condition restricted speech, and restricted it based on content: The law “is specifically directed at a form of speech — namely, the expression of editorial opinion — that lies at the heart of First Amendment protection.” “[T]he scope of [the restriction] is defined solely on the basis of the content of the suppressed speech.” As I mentioned above, the condition here restricts conduct (exclusion of Israeli academic institutions and scholars) that sometimes won’t even involve speech (for instance, if a university refuses to allow Israeli academic institutions to license university-owned patents, or refuses to let them interview students at on-campus job fairs). And in any event, it doesn’t restrict speech because of its content. Likewise, the condition doesn’t require people “to profess a specific belief,” the Court’s objection in Alliance for Open Society International.

Indeed, though Grove City College interpreted Title IX as denying federal funds only to those university programs that discriminate — rather than to the entire university — Congress has since revised Title IX. If a university discriminates in any of its programs, it will now lose federal funding for all its programs. I doubt that courts would say that this poses a First Amendment problem, when the lose-funding-for-those-programs-that-discriminate ban didn’t.

5. Some might ask whether the bill would strip universities of funds if they pay their professors’ membership fees in the American Studies Association (or other groups that boycott Israeli academics or institutions), or if they pay for conference registration fees. I think the answer would be no, because the bill specifically only when “the institution, any significant part of the institution, or any organization significantly funded by the institution” engages in a boycott. The word “significantly” means something, and I think it means more than just paying modest fees such as these.

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In any event, I hope this offers something of a layout of the First Amendment issues raised by the bill. I think the bill would likely be upheld against a First Amendment challenge, though its possible weakness stems from its coverage of an entire university even if only one department engages in a boycott.