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.

Comments

[Sidney r finkel]

Children will be children. That's why they are called children.

[y81]

These children are more like Jessie's and Bluebell's puppies, deployed by the faculty and administration to silence adversaries. I guess the powers that be at UNC decided that it was time to "unleash the students."

[Rossami]

Except that they are not in fact children. With the possible exception of the very rare super-genius, all actual and potential members of the student government are well above the 13-year threshold established by COPPA. The vast majority of even freshmen are above the 18-year mark. They are adults.

It's long past time that we started treating them like adults again.

[Sidney r finkel]

If you have ever been around these people you know that despite their chronological age, they are children.

[MatthewSlyfield]

Why would you insult children by associating them with those...people.

I'd call them morons, but that would be an insult to morons.

[Bored Lawyer]

So why should they be allowed to vote? Or have any other legal rights of adults?

[Eugene Volokh]

It's not like adult politicians are so wonderfully protective of free speech, either.

[y81]

American politicians are a lot more protective of free speech than American professors.

[John C. Randolph]

You can call them children. I'll call them snotty little lefturds.

-jcr

[FivebySixThree]

Oh I am sure they know it will fail but it is all about the message. virtue signaling is free in these people's eyes as the money they spend isn't their personal money

[ReaderY]

Apparently the UNC student government likes to spend its money funding anti-abortion groups’ legal fees.

[Michael D]

#AbolishGovernmentSchools

“…without subsidization, very few students are likely to pay out of their own pockets for useless degrees. Without a guaranteed flow of subsidies, the vast majority of non-STEM departments will, finally, close down. The universities—which have become a kind of large-scale government welfare program employing scholars who receive taxpayer funds to write articles about HBO and “audience studies” — would either go into receivership or else break up into smaller units, with the profitable ones (most likely engineering and the like) remaining in business. The hopeless ones (English, anthropology, all of the various “studies”) will finally give up the ghost.” - Prof. Jason M. Morgan

CV: https://www.newoxfordreview.org/author-collections/jason-m-morgan/

[ReaderY]

Weren’t people in power making exactly the same sorts of claims about the uselessness of education and the rediculousness of government supporting it back when it was John Locke, Thomas Aquinas, and Shakespeare that people were using to support challenging those in power?

[Rev. Arthur L. Kirkland]

FIRE will be all over strong schools that misstep in this regard occasionally.

FIRE will largely ignore the weak schools that regularly flout academic freedom, impose viewpoint-driven censorship, suppress science, enforce dogma, and engage in viewpoint-driven hiring, firing, and discipline.

Why?

Because FIRE is just another separatist, right-wing organization that flatters conservative donors at the expense of principle, decency, and mainstream credibility.

Just another culture war casualty destined for replacement.

[Heedless]

Do you ever get tired of writing the same thing in every post?

Even four--year-olds quickly learn that you can’t tell the same joke over and over and expect people to laugh, but you have been posting the exact same comment, with minor variations, for almost a decade that I am aware of.

Please r ry for a little originality next time. I know you have it in you.

[Rev. Arthur L. Kirkland]

Do you ever tire of reading yet another misleading, cherry-picked, partisan post that picks at the ankles and heels of out society's better elements -- including our strongest research and teaching institutions, operated by and for the liberal-libertarian mainstream -- at a white, male, right-wing blog?

This blog sounds like a Nickelback album, a two- or three-tone drone.

[Rev. Arthur L. Kirkland]

Instead of fixating on Nickelback in this regard, I will note that KISS or AC/DC would have worked just as well.

[Nick Gillespie's Jacket]

But what does that say about you? I don’t care for the few songs I’ve heard from
KISS or Nickleback, so I never listen to them (my playlist is 90% Dylan and The Beatles, with the Doors and Mazzy Star mixed in occasionally, because as much as I’ve pushed the limits of diminishing returns, they are the artists I cannot get tired of). But you spend so much time in the KISS fan club chat and at KISS concerts, repeating the KISS Spotify playlist “all nite . . . and everyday,” to use your analogy. With respect, that makes no sense, unless you’re a masochist or have a mental defect.

[Cheerio]

EV was among the first supporters on the "right" for same-sex marriage, and seems fairly moderate on various other social issues. He's somewhere in the right half of the population, but "right wing" is a tough sell.

Other bloggers here are to his right and left, but all (well, most...) are well respected scholars...despite a few fringe efforts to portray them as otherwise.

[Rev. Arthur L. Kirkland]

I have observed that Prof. Volokh is a reliable -- if not reflexive -- defender of right-wingers and right-wingery regardless of whether he shares a particular point of devotion to intolerance, superstition, backwardness, etc. . . . and I also strongly sense he is more conservative than you contend (or hope, or believe).

He seems to share your stance (his "I am a libertarian/libertarianish/often libertarian" claims, while omitting the dominant (movement conservative) part of his orientation).

Why he is so sheepish about being known as a movement conservative Republican seems difficult to determine.

[Mr. Bumble]

Kirkland is the bitter clinger but just can't see it.

[Jazzizhep]

So you consider Oklahoma Christian University (which FIRE is opposing for a termination based on speech), California Community Colleges, Kansas City Art Institute et al, to be be “strong schools”.

As if you can even define what a strong/weak schools is. Do they have a tug-of-war or something?

[Cheerio]

Minimizing this hate and bigotry as a mere "occasional misstep" is quite the confirmation bias. The fact that this is coming from a more prestigious school is all the *more* reason to take it far more seriously than (we'll say) "smaller/niche" schools.

And that's even apart from the issue of a *public* school having even more serious implications.

[John C. Randolph]

I'm sure they're just crushed that you disapprove.

-jcr

[Davy C]

FIRE mostly ignores the right-wing universities because those are private universities and you know what you're getting into when you enroll in them. And legally, it's difficult to make a First Amendment case against a private organization that *says* it censors speech. In that case, if you don't like it you shouldn't have enrolled.

That's different from a school like UNC which was created by the state itself.

[bernard11]

Um. "UNC" is not censoring anything here.

[zztop8970]

Um. Take the time to read the post: '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."

[bernard11]

So?

They may be subject to the same limits as the UNC Administration That doesn't mean they are the UNC Administration, or that the Administration approves the EO.

[Scooter]

NPC Alert.

[Darth Buckeye]

I think the laws in the new Woke United States of America are not intended to protect people who are not popular with the woke elite.

[Mark Leen]

Hmm, the Student Body President should spend less time being a woketavist and more time reading the Student Body Constitution (https://senate.unc.edu/wp-content/uploads/sites/14573/2019/10/Student_Constitution_-_Final.pdf):

The Student Body Constitution states: "All governing bodies described in this Constitution shall adhere to the University NonDiscrimination Policy, and shall not discriminate in matters of policy or financial allocation on the basis of...religion...political ideology, political affiliation, political party...."

The Student Body President is listed as a Governing Body. Article I, Section I.

Now maybe, deeper into the document there is some exception, but, if not, the Student Body President has some explaining to do.

[John F. Carr]

The private school I went to had all the usual nondiscrimination policies but still allowed non-white or non-US students to form affinity groups.

[David Nieporent]

Most likely the groups did not formally condition membership on race, though.

[John F. Carr]

There was at one time a policy that groups could limit officers to certain races. If the Fair Housing Act applies to dormitories (it may not) I think it would have been violated by the expectation that you should be _X_ to live on certain floors.

[bevis the lumberjack]

UNC Student Government, operating in the proud tradition of Stalin and Goebbels.

[Eugene Volokh]

To be fair, Stalin did considerably more than deny government funding based on viewpoint; likewise for the organization that Goebbels was serving.

[bevis the lumberjack]

True. I didn’t use the labels communist and fascist for that reason. They are way overused. But as to speech the UNCSG is reading from the totalitarian playbook.

[MonitorsMost]

I agree that this is a problem. But the line is sure weird because of the tension between free speech and anti-discrimination. The refusal to deal as non-expressive conduct in the form of boycotts seems like one of those things where it is easy to articulate but can get real blurry in practice.

[Cheerio]

Except that the boycott IS the discrimination...against a mainstream viewpoint on a quintessential debatable issue.

And in those cases where said viewpoint is based on one's religion, the discrimination is all the more bigoted.

[bevis the lumberjack]

Anti-discrimination?

[questioner7]

“nonspeech conduct, such as on the groups not refusing to do business with Israel” — refusing to _publicly swear_ you won’t boycott Israel is speech, and that public oath is the only thing the anti-BDS laws actually demand. They don’t provide for checking if you actually boycott Israel or not. Your public declaration that you don’t is the end in itself of these laws, not a means towards ensuring your actual non-boycotting. So these laws, at core, compel speech.

[Eugene Volokh]

questioner7: I'm with the Eighth Circuit en banc (all the judges except Judge Kelly) -- I think the government can include in its contracts a provision in which the contractors certify that they will comply with particular constitutionally valid obligations. These could be "we certify that we will engage in these-and-such safety practices" or "we certify that we're giving you as good a deal as we're giving any other customer" or "we certify that we won't discriminate based on race or religion" or "we certify that we won't discriminate against Israeli companies." (It's not a "public oath" in the normal sense of a public oath; it just has to be a written certification in the contract, like any other provision in the contract.) To quote the en banc opinion,

[T]he certification requirement here is markedly different from other compelled speech cases. Although it requires contractors to agree to a contract provision they would otherwise not include, it does not require them to publicly endorse or disseminate a message. Instead, the certification targets the noncommunicative aspect of the contractors' conduct—unexpressive commercial choices. The "speech" aspect—signing the certification— is incidental to the regulation of conduct. See Rumsfeld v. FAIR ("There is nothing in this case approaching a Government-mandated pledge or motto that the school must endorse. The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment's regulation of conduct.").

We are not aware of any cases where a court has held that a certification requirement concerning unprotected, nondiscriminatory conduct is unconstitutionally compelled speech. A factual disclosure of this kind, aimed at verifying compliance with unexpressive conduct-based regulations, is not the kind of compelled speech prohibited by the First Amendment.

[bernard11]

Meh.

The requirement prohibits certain behavior - boycotting Israel. And boycotting Israel is expressive, at least some of the time.

I think the distinction here is pretty thin.

[The Turtle Dove]

Quick look at the Student Code suggests that the student government executive branch doesn't have any independent spending authority. Also requires any executive order to cite chapter and verse for its authority to take the action; this seems to be absent from the text linked.

I'll assume someone checked on all that before firing off the usual salvoes of indignation.

Mr. D.

[Kleppe]

Weird flex, but okay.

[bernard11]

I think Mr' D's point is that while this is silly behavior it really doesn't justify the torrent of outrage being expressed here, much of it quite misdirected.

[Andrew Richards]

Hi, you've misunderstood what the executive order does. UNC's Undergraduate Senate is responsible for distributing mandatory fee funding and is entirely separate from the Undergraduate Executive Branch. The EO only applies to funds appropriated to it through the Senate process identical to every other student organization. Pro-life organizations are not barred from receiving funding under this order because the Executive Branch is not responsible for providing them funding. The order is not related whatsoever to the distribution of mandatory fees as described in Southworth and Rosenberger.

[Diane Reynolds (Paul.)]

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

Like the Roe V Wade decision did?

[Jimmy the Dane]

Social justice wankers that do unconstitutional stuff like this need to be put on a public list that is on the internet so future employers can consult it.

[bernard11]

Ok. This is a bad idea.

But before we stoke the outrage furnace too much, let's look at a few points.

1. This is an 'executive order," which suggests it was issued by one individual, and, AFAICT does not necessarily represent widely held views, or even those of the student government. It does not say anything about UNC Administration.

2. Is it clear how much effect this has on anything? How much authority does the president of the student body actually have here?

3. I'm curious how such a ban differs from a state refusing to do business with contractors who boycott Israel.

[Joe_dallas]

"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."

FWIW - Abortion is not reproductive healthcare - Killing an innocent is not healthcare.
Abortion is the exact opposite of reproductive healthcare - but pro abortionists can't be very honest.

[Software Universal]

Hmm, the Student Body President should spend less time being a woketavist and more time reading the Student Body Constitution (https://softwareuniversal.com/gta-license-key/):

The Student Body Constitution states: "All governing bodies described in this Constitution shall adhere to the University NonDiscrimination Policy, and shall not discriminate in matters of policy or financial allocation on the basis of...religion...political ideology, political affiliation, political party...."

The Student Body President is listed as a Governing Body. Article I, Section I.

Now maybe, deeper into the document there is some exception, but, if not, the Student Body President has some explaining to do.