Does CUNY’s law school funding withdrawal because of the school’s anti-Israel resolution violate the First Amendment?

so report the New York Post (Carl Campanile):

A Brooklyn councilwoman is pulling $50,000 in funding for CUNY Law School because her faculty board approved a resolution supporting the pro-Palestinian boycott, divestment and sanctions movement against Israel.

Inna Vernikov, a Ukrainian-born Jew who represents a handful of heavily Jewish neighborhoods in south Brooklyn, accuses CUNY law professors of engaging in anti-Semitism by supporting the BDS movement against the Jewish state.

“I withdrew funds from the program and redirected them to Legal Services NYC,” Vernikov told The Post on Friday.

A few thoughts:

[1.] If the government withdraws funding, terminates a contract, or fails to renew a contract, based on a private entitythe speech of , which would be deemed unconstitutional under Board of Commissioners v Umbehr (1996). The government might be able to do this if it shows that the disruptiveness of government operations discourse outweighs its value (the so-called Pickering balance, first developed for the speech of government employees). However, he would have to make such a demonstration.

[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, for example, Ysursa c. Pocatello Educ. Ass’n (2005). State and local governments are essentially considered a single entity for federal constitutional purposes, at least as far as the struggles between them are concerned (although I’m simplifying a bit here).

Admittedly, here things are complicated by the fact that this is a local government entity controlling its funds in retaliation for the discourse of another hybrid state and local government entity; and maybe there could be state law constraints on that. (Similarly, whether a single member of the city council can block funding, rather than letting the decision be made by the entire council, is a matter of state law.) But I don’t think that would make this intra-New York- between-government disputes into a federal constitutional question.

[3.] One could of course still wonder if this is good for New York and if it violates broader principles of academic freedom. But I’m not sure that’s the case. I’m generally quite skeptical of elected officials who play with academic decisions, which are usually well outside their area of ​​expertise; but on the other hand, I doubt that a decision to boycott, divest and sanction Israel is within the purview of a law school. A particular faculty member might be an expert on these issues; and I think that, more broadly, academic freedom protects the right of the faculty member to speak out on such matters, whether or not they are an expert in the subject. But I don’t think it carries over to institutional statements.

Indeed, the Kalven report has demonstrated that institutional statements on these issues undermine academic freedom, for example:

Since the university is a community only for these limited and distinct purposes, it is a community that cannot act collectively on current issues without jeopardizing the conditions of its existence and its effectiveness. There is no mechanism by which it can arrive at a collective position without hampering that full freedom of dissent upon which it feeds. It cannot require all of its members to favor a given vision of social policy; if he engages in collective action, he does so at the cost of censure of any minority that does not agree with the opinion adopted. In short, it is a community that cannot use majority voting to take a stand on public issues.

Different academics and different institutions have different views on the Kalven report; but again, it’s hard for me to say that legislators’ withdrawal of funding from a public institution for “collective action on issues of the day” from the institution is itself a violation of freedom academic.

Anyway, that’s my tentative thinking on the matter; I would love to hear what other people think.

Nancy I. Romero