Can Congress withhold funds from universities that adopt anti-Israel boycott, divestment and sanctions (BDS) policies? Two widely respected First Amendment experts disagree. Floyd Abrams, a leading First Amendment practitioner, argues that the new Roskam-Lapinski Bill is unconstitutional. Eugene Volokh, a leading First Amendment scholar at UCLA, disagrees.
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.
Mr. Abrams has reportedly argued that Roskam-Lapkinski 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.
Volokh disagrees, arguing that the bill is likely constitutional. His arguments, posted at the Volokho conspiracy at WashingtonPost.com, include the following:
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….
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.” … 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….
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….
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….
Interestingly, some Jewish organizations are now vocally opposing the statute. In some cases, they may base their opposition on Floyd Abrams-arguments of the sort that Eugene Volokh has disputed. In other cases, they may be concerned that Roskam-Lapinki is being used as a Republican effort to embarrass Democrats for being soft on anti-Israel discrimination. Either way, this bill will be hotly debated. Stay tuned…