The Volokh Conspiracy

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Free Speech

UNC Chapel Hill Student Gov't President Cuts Off Funding & Contracting to Anyone Who "Advocates" for Limits on Abortion


The student government president's executive order provides, among other things,

That it shall be prohibited for the Undergraduate Student Government Executive Branch to contract or expend funds to any individual, business, or organization which actively advocates to further limit by law access to reproductive healthcare, including, though not limited to, contraception and induced abortions.

This seems to me a clear violation of the First Amendment:

  1. Under Board of Regents v. Southworth (2000), public university student government are generally subject to the same First Amendment limits imposed on public entities more generally.
  2. When it comes to generally available student group funding, Southworth and Rosenberger v. Rector (1995) make clear that the government can't discriminate based on the student group's viewpoint.
  3. And when it comes to contracting, Board of Comm'rs v. Umbehr (1996) holds that the government generally can't discriminate based on contractors' ideological expression, either.

Of course the same would be true of a public university's cutting off generally available student funding or contracting to "individual[s], business[es], or organization[s]" that express pro-abortion-rights views or pro-Israel views or anti-Israel views or what have you. The Free Speech Clause generally doesn't stop government actors from conditioning funding on groups' nonspeech conduct, such as on the groups not refusing to do business with Israel or not excluding military recruiters (Rumsfeld v. FAIR (2006)) or providing funding for abortions or contraception for their employees. But the government may not condition funding on groups' refraining from expressing anti-Israel, anti-military, or anti-abortion views.

The Foundation for Individual Rights in Education reports further on this. Note: I have consulted for FIRE on a different matter, but I wasn't at all involved with this controversy, and wasn't asked to write about it.

UPDATE: Commenter Mark Leen notes that the UNC (Chapel Hill) Student Constitution provides (pp. 1, 3),

All governing bodies described in this Constitution [which include the Student Body President] shall adhere to the University Non-Discrimination Policy, and shall not discriminate in matters of policy or financial allocation on the basis of age, gender, race, color, national origin, religion, creed, political ideology, political affiliation, political party, disability, veteran status, sexual orientation, gender identity, gender expression, or genetic information.

I take it that this means that they can't discriminate based on the political ideology that potential recipients express, and not just on the political ideology that the recipients silently hold.