Tuesday, January 28, 2014

First Amendment Issues with New York Bill Prohibiting University Support of Entities that Support Boycotts of Other Universities or Nations

New York Senate Bill 6438-2013 passed today and now moves to the Assembly, taking its First Amendment problems with it.

The bill, in section 2 provides: 

No college in this state may use state  aid  provided  directly  to such  college  to: fund an academic entity, provide funds for membership in an academic entity or fund travel or  lodging  for  any  employee  to attend  any  meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an  official action  boycotting  a  host  country  or  higher  education institutions located in such country.

Section 3 extends the penalty to a deprivation of all funds:

Notwithstanding any law to the contrary, no college shall be eligible  for  state  aid  during  the  academic year that such college is in violation of subdivision two of this section.

220px-NYSCapitolPanorama
New York State Capitol



Like many laws, Bill S6438-2013  little sense without understanding its context.  In December, the American Studies Association membership adopted a Resolution stating that it

endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions.  It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.

The resolution was widely reported, with an excellent piece by Elizabeth Redden on Inside Higher Ed; an article concentrating on the reactions by Peter Schmidt, and nuanced posts by "Claire Potter on Tenured Radical" discussing her own changing views, most recently here. 

In any discussion of the bill's constitutionality, proponents will most likely be relying on Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided by the United States Supreme Court in 2006.  Rumsfeld v. FAIR involved the "Solomon Amendment" passed by Congress requiring law schools to allow the military to recruit for lawyers the same as any other employers, a statute thought to be necessary because a number of law schools prohibited employers from recruiting unless the employers had a non-discrimination policy that included sexual orientation. Like S6438-2013, the federal Solomon Amendment  specified "that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds."  The law schools challenged the Solomon Amendment arguing that it infringed their First Amendment freedoms of speech and association.  The law schools lost - - - unanimously (Justice Alito recused himself; the 8 other Justices joined the opinion by Chief Justice Roberts upholding the constitutionality of the law).

Importantly, in Rumsfeld v. FAIR, the Court rejected the notion that the doctrine of "unconstitutional conditions" applied.  On the Court's view, the universities were not faced with an untenable choice - - - surrending their free speech and association rights in exchange for funding  - - - because the government could directly mandate that the universities allow the military to recruit on the same terms as other employers.  The Solomon Amendment, according to the Court, "neither limits what law schools may say nor requires them to say anything."

In the Court's most recent unconstitutional conditions case,  Agency for International Development v. Alliance for Open Society,  the Court did declare unconstitutional a Congressional statute requiring funding recipients to have an  "anti-prostitution pledge."  Again, the opinion was authored by  Chief Justice Roberts, but this time over a dissent by Justice Scalia (joined by Thomas).   The fact that the pledge was compelled speech was central.

In arguments surrounding the constitutionality of the NY Bill under the First Amendment, challengers would most likely rely upon NAACP v. Claiborne Hardware Co., in which the Court in 1982 held that damages for a boycott of white merchants in Mississippi could not be awarded against the NAACP consistent with the First Amendment.  Claiborne recognized that the "peaceful" aspects of the boycott were a form of speech or conduct that is ordinarily entitled to protection under the First Amendment. 

Thus, it would seem that the state could not directly prohibit a boycott.  The argument would then be that because the state could not directly prohibit participation in a boycott, it would be an unconstitutional condition to make recipients forgo a constitutional right as a condition of receiving funding.

https://lawprofessors.typepad.com/conlaw/2014/01/first-amendment-issues-with-new-york-bill-prohibiting-university-support-of-entities-that-support-bo.html

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