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

$50K in funding was withdrawn by a Brooklyn councilwoman, and transferred to a different organization.

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.

Comments

[jdgalt1]

[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).

(1) I would not expect either New York (state) or CUNY to be considered “subordinate” to the federal government for this purpose, because if they were, it would violate the spirit of the “non-commandeering” principle of federalism.

(2) There are other federal laws that limit boycotts of Israel by private entities and persons, including an IRS rule that penalizes those who participate in one. If the donor is subject to one of these it might even be illegal for him *not* to cut off funds to CUNY.

And (3) Doesn’t the donor have a free speech right at least equal to CUNY’s own?

[TwelveInchPianist]

Seems like the claim is that CUNY is subordinate to the city council.

[Armchair Lawyer]

Yep. Federalism doesn’t play a role.

[DaivdBehar]

This is a small naturalistic experiment. The dose of money is too low to have any effect on the woke ideologues. I have proposed, de-exempting the traitor school, ending all grants and subsidies, including loan guarantees. Then de-accredit them. Seize their assets in civil forfieture for tax fraud. They promised the IRS to provide education in exchange for their privileges. They provided indoctrination. That is criminal tax fraud.

[DaivdBehar]

We should not be funding the internal enemies of our country. We should be shutting them down, arresting their responsible officials, and seizing their assets in civil forfeiture.

[Eugene Volokh]

jdgalt1: I agree that this doesn’t apply to federal restrictions on state government speech, or federal denials of funding based on state government speech — here, though, we have a denial of funding by one branch of the state/local structure to another branch of the state/local structure.

[Bored Lawyer]

You raise a point I had not thought of. CUNY itself, as a government institution, is subject to the First Amendment, acc. to a long line of cases. So I wonder how that affects the question of whether the denial of funds violates the First Amendment, when the recipient itself is a state actor. And indeed one created by the very municipality that is doling out the funds.
Not sure it changes the analysis, but it certainly is not a typical denial of govt. benefits to a private party.

[SKofNJ]

I guess you didn’t read Eugene’s article.

[Bored Lawyer]

I did read it. And it was tentative in its conclusion, as am I. This is an unusual case.

[Brett Bellmore]

IS CUNY actually a “branch” in any meaningful sense? Are they constitutionally established with independent powers? Or just a product of a statute?

The courts are independent of the legislature because they’re both constitutionally established entities with constitutionally delegated powers and responsibilities. Does CUNY stand in that relationship to the local city council?

[Michael P]

I don’t take “branch” in EV’s comment to mean a co-equal branch, which is the meaning that you seem to have taken. I interpreted it as just meaning CUNY was created by a state-or-subsidiary government, at some level, without an implicit level of independence.

[DaivdBehar]

including an IRS rule that penalizes those who participate in one.

Citation, please.

[jdgalt1]

https://www.irs.gov/pub/irs-pdf/i5713.pdf

[Aurelius]

Pretty sure the funding in question is discretionary; the Councilwoman should have the same right to pull it as to bestow it in the first place

[Aurelius]

Of course, whether or not outright pork of this is sort is good for our democracy or good governance is a different question.

To me the more significant question is whether the pervasive anti-Israel sentiment on campus cross the line into harassment of American (or for that matter, Israeli) Jewish students… there’s lots of anecdotal evidence that it does, and if confirmed that would amount to a Dept of Ed Title Vi violation.

[Pavel Petrovich]

All holocaust deniers will be denied discretionary funding at the discretion of the holohoax believers. Obey your masters!!

[Sebastian Cremmington]

Ding dong call me on the phone
Ice cream and a game of ping pong!

BTS>Beatles

[Pavel Petrovich]

Hard to believe the Ukrainian jew represents interests of government, given the jewish control of NY government, it is laughable. Deny the holocaust, face the same jewish retaliation. Not really an issue of American public interest …. jews just a lying bunch of traitors who hate America.

[DaivdBehar]

Spoken like a nitpicking, Torah parsing Jew. How much Jew blood do you have Pavel?

[legalizeshrooms]

An academic boycott of Israel would seem like a substantial loss to everyone involved. Not only that, but anti normalization, or refusing to engage at any level with Israel, is also really bad for efforts to encourage peaceful relations between the people of the region.

[Martinned]

On the other hand, whatever we’ve been doing for the last 50 years hasn’t made a damn bit of difference…

[Longtobefree]

Jimmy Carter and Donald Trump would disagree.

[Eric VonSalzen]

To me the interesting question is how a single councilmember can control the actions of the council. It’s a little bit like the “earmarks” issue in Congress. If all (or at least most) members benefit from the practice, then it will be tolerated. The action in this instance appears to be of minor significance (I may be wrong about that, of course). The old saying among trust & estates lawyers is, “There are no great issues in a small estate.”

[Bored Lawyer]

I was wondering about that myself. Seems like a really dumb way to run a city budget. But then again, it’s New York.

[SimonP]

It’s hard to tell from the NYPost’s typically lazy and incomplete reporting, but members of the NYC city council get relatively small amounts of “discretionary” money in the budget that they can direct toward specific issues relevant to their districts. There’s often a public process where councilmembers ask their constituents to give them some ideas on where to put that money.

Here, it appears that Vernikov initially decided to support a legal aid program at CUNY Law with this $50k. It looks like she decided it would be helpful to channel that $50k to a different legal aid program. So basically her action potentially leaves legal aid clients and law students in the lurch, as a kind of way to appear to “punish” the CUNY Law faculty.

[Gandydancer]

“her action potentially leaves legal aid clients and law students in the lurch”

but

“I have pulled funding from the program and redirected it to Legal Services NYC,” Vernikov [said]”

So it’s not going in her pocket and I’m not seeing that there’s any basis to foresee any net harm to the public weal.

Seeing that public expenditures go where her constituents want them to go is basically her job description. If they want Israel boycotted they can kick her out.

[SimonP]

If you don’t know anything about legal clinics, you could just keep your mouth shut.

[SimonP]

The “faculty council” in question seems to be a body representing the interests of the faculty, akin to a union, rather than a “subordinate” government body. Indeed, the coverage over this statement appears to make clear that the faculty felt the need to issue this statement partly in response to the actual law school administration’s outreach to Israel.

Doesn’t that entirely change your analysis?

[Lee Moore]

If you are right that the CUNY Law School Faculty Council is a private organisation and not actually part of CUNY Law School, it does indeed raise the interesting question of what happens if the government retaliates against A, because of something that completely unrelated B says. Might there not be a bit of a standing problem ? B has the 1A right, but A is the one actually suffering.

The traditional argument is when the government retaliates against A for something that A says, where you can see the chilling effect on A and A’s speech. But has there ever been a case arguing that the government chills B’s speech by retaliating against an unrelated third party. A sort of “they threatened to drown the puppies” complaint ?

Sounds interesting. Book me a seat.

[SimonP]

I do think that members of the CUNY Law faculty would need to be able to make the claim that diverting public funding for CUNY Law’s legal aid program to a different legal aid program in some sense harms them. If the faculty don’t have a stake in the program’s funding one way or the other, it’s hard to see how there’s a constitutional violation in how the NYC city council moves money from one government pocket to another.

It might be worth noting that Vernikov clearly intended the funding shift to be “chilling” on legal faculty’s private speech, by symbolically drawing attention to the matter by using what appears to be the only stick she had to wield. But that’s ultimately what seems to be going on here. She saw an opportunity to pander to constituents and is withdrawing funding from a program that has nothing to do with the faculty council’s actions, in a way that may just harm the people the funding is supposed to help.

[David Nieporent]

I think the phrase “pander to constituents” is sort of an odd one. I mean, politicians doing what their constituents want is usually something people speak approvingly of.

[SimonP]

It’s a perfectly ordinary way of describing what Vernikov is doing here.

Just like “picking a fight” is a perfectly ordinary way of describing what you’re doing here.

[legalizeshrooms]

Everyone has the right to self determination.

[Gandydancer]

The pure idiocy of your phrase “pander to her constituents” called for a response, so don’t whine about getting one.

[SimonP]

Who’s whining?

[TwelveInchPianist]

You. Please try to keep up.

[legalizeshrooms]

In simons defense, Google suggestions for “pandering to c” results in
“pandering to China”,
“pandering to chinese audiences”,
“pandering to common denominator”, and
“pandering to constituency”
So it appears not so unusual of a term

[David Nieporent]

I didn’t say that ‘pandering to’ was an unusual term; I said it was unusual to describe a politician being responsive to his constituents that way.

[Frank Drackman]

Easy one,
No.

[DWB]

Democrats are trading hatred of black people with hatred of Jews (again) and white people.

Summers of “love” long gone … if they ever existed at all.

[Michael D]

Shocking, a bunch of lawyers arguing over how many angels can dance on the head of a pin.

David Behar has not said it but if he does, I will have to agree. While you sit about arguing over cases and precedent, you lose sight of the bigger picture. You cannot see the forest for the trees.

Since VC is a somewhat libertarian blog, one would have hoped someone would say this before I me. But the bottom line here is government education should be abolished. Primary, secondary, higher, I do not care. To paraphrase the aphorism, there should be a wall of separation between education and state.

[Ed Grinberg]

government education should be abolished.

Right. Shut down public colleges / universities. Then the remaining private colleges / universities can “boycott” and “divest from” whoever they want.

[Gandydancer]

It’s an actual question whether a politician can distribute political slush funds on a political basis?

[Gandydancer]

Post article: “The group called for the school to terminate student exchange programs with Israel and to join the Boycott Divest Sanctions movement against the nation.”

So, are the student exchange programs entitled to the same protection from defunding as the BDS types? Or is this a one-way ratchet?

[Longtobefree]

From what I have been reading over the last few year, nothing can violate the first amendment.
Just like the second and fourth.

[Illocust]

Yes, it does, and I say it as someone who thinks this movement is pretty incision rooted in antisemitism.

That said, someone pointed out this is one government agency punishing another government agency, and government agencies don’t have free speech, so this specific case does not violate the first amendment.

[Davedave]

Surely this is the other way around, and it’s unconstitutional for government funding to go to an organisation with racist policies, as with segregation/apartheid?

Since BDS is openly antisemitic, with several of its leaders actual Holocaust deniers who can’t visit e.g. Germany without being jailed, it’s not like it is a reasonable position to do anything other than reject it entirely. Boycotts of Israel are not necessarily antisemitic, but BDS is definitely, explicitly, virulently antisemitic. When an organisation like CUNY supports it as in this case, they are effectively barring Jewish students from the institution, and constructively dismissing all their Jewish staff – including any who may have tenure. It’s time for Federal hate-crime charges.