PoliticsDoes Pulling Funding from CUNY Law School Because of...

Does Pulling Funding from CUNY Law School Because of School’s Anti-Israel Resolution Violate First Amendment?

So reports the New York Post (Carl Campanile):

A Brooklyn councilwoman is pulling $50,000 in funding earmarked to the CUNY Law School because its faculty council endorsed a resolution in support of the pro-Palestinian boycott, divestment and sanctions movement against Israel.

Inna Vernikov, a Ukranian-born Jew who represents a handful of heavily Jewish neighborhoods in southern Brooklyn, charges that CUNY Law professors are engaging in antisemitism by backing the BDS movement against the Jewish State.

“I have pulled funding from the program and redirected it to Legal Services NYC,” Vernikov told The Post Friday.

A few thoughts:

[1.] If the government withdrew funding, or terminated a contract, or failed to renew a contract, based on a private entity‘s speech, that would be presumptively unconstitutional under Board of Comm’rs v. Umbehr (1996). The government might be able to do this if it shows that the disruptiveness of the speech to government operations outweighed its value (the so-called Pickering balance, first developed for speech by government employees). It would, however, indeed have to make such a showing.

[2.] But the government can indeed control the speech of its subordinate entities, without being constrained by the Free Speech Clause: A state government can control its political subdivisions, and a local government can control local agencies, see, e.g., Ysursa v. Pocatello Educ. Ass’n (2005). State and local governments are essentially viewed as one entity for federal constitutional purposes, at least as far as any struggles between them are concerned (though I oversimplify here slightly).

To be sure, here things are complicated by the fact that this is a local government entity controlling its funds in retaliation for the speech of a different hybrid-state-and-local government entity; and perhaps there might be state law constraints on that. (Likewise, whether a single city council member can block funding, rather than having the decision be made by the entire council, is a matter of state law.) But I don’t think that this would make this intra-New-York-governments dispute into a federal constitutional matter.

[3.] One could, of course, still argue whether this is good for New York, and whether it violates broader academic freedom principles. But I’m not sure that’s so. I’m generally quite skeptical of elected officials messing with academic decisions, which are usually far outside their area of expertise; but on the other hand, I doubt that a decision on whether to boycott, divest from, and sanction Israel is within a law school’s area of expertise. A particular faculty member might be a specialist on such questions; and I think that, more broadly, academic freedom protects the faculty member’s right to speak out on such questions, whether or not he or she is an expert on them. But I don’t think that quite carries over to institutional statements.

Indeed, the Kalven Report made a good case that institutional statements on such matters actually undermine academic freedom, e.g.:

Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues.

Different scholars and different institutions take different views on the Kalven Report; but again it’s hard for me to say that lawmakers’ withdrawal of funding from a public institution for the institution’s “collective action on the issues of the day” is itself an academic freedom violation.

In any event, that’s my tentative thinking on the matter; I’d love to hear what others think.

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