Earlier this morning, on both my Facebook and Twitter pages, I wondered aloud
Is the Empire State particularly hostile to academic freedom? Is it particularly illiterate about the First Amendment?
The reason for this slightly despairing query? Read this and despair for free speech:
The New York State Assembly is currently considering a bill (A.8392) to prohibit colleges and universities in New York State from using State funding to support employees’ participation in academic organizations that have supported boycotts against any nation or its universities. Colleges or universities that violate this act would lose all state funding. This bill (S.6438) has already passed the State Senate, with major support from both parties.
If you’ve been reading the news at all recently, you know this is in retaliation for the following:
The executive body of the American Studies Association (ASA), the nation’s oldest and largest association of scholars of American culture and history…endorsed a boycott of Israeli academic institutions, calling them complicit in a “multi-tiered system of oppression that has denied Palestinians their basic rights.”….
The resolution to shun Israeli academic institutions was approved unanimously by the 20-member national council, which has urged the ASA’s 5,000 members to adopt it as policy.
Unsurprisingly, the ASA resolution has sparked a great deal of commentary. For instance, Cary Nelson–former president of the American Association of University Professors–wrote a critical response, and Corey Robin has written a series of posts defending it and the associated BDS movement.
So far, so good: academics make some speech, other academics respond with more speech. But then, along comes this bill. It’s problematic in several ways, as Michelle Goldberg points out:
But if the ASA boycott might violate academic freedom, the anti-boycott law definitely does. This is the state punishing scholars for taking a political stance. It’s almost certainly unconstitutional. As Dima Khalidi of the Center for Constitutional Rights and Palestine Solidarity Legal Support writes, “Courts have been very clear that the denial of funding, where motivated by a desire to suppress speech, is prohibited by the First Amendment.”
And it is likely to be counterproductive for very interesting reasons:
Beyond the First Amendment, the bill raises another, fascinating legal issue. It includes three exceptions: boycotting a country is OK when it’s designated as a state sponsor of terrorism, when the boycott is connected to a labor dispute, or “for the purpose of protesting unlawful discriminatory practices as determined by the laws, rules or regulations of this state.” Israel, of course, engages in a number of discriminatory practices towards the Palestinians that wouldn’t pass muster with New York civil rights law. That’s why it’s being boycotted in the first place! So while the law should be tossed in its entirety, a lawsuit focused just on the third point could be immensely clarifying, essentially putting the reality of the Occupation on trial. Were that to happen, New York State would have ended up doing the BDS movement a great favor.
Who would have standing to file a lawsuit challenging the law on the grounds Goldberg suggests? As an example, Corey Robin notes:
Any faculty member at CUNY who is denied travel money to the ASA — on the grounds that it is an organization that boycotts.
A First Amendment challenge to this bill is not going to be hard to make, and what is more, no judge that has read the US Constitution should let this bill stand.
Which brings me to the point of this post.
State legislature bills are not drafted by idiots; their drafting committees almost certainly include lawyers who presumably have taken the obligatory class on the US Constitution that is required of all first-year law students. Those drafters, and the bill’s supporters in the legislative houses, must know such a bill will not pass constitutional muster. Why then, do they attempt to pass such legislation?
The answer is dispiriting. To posture, to preen and strut and show off your allegiance to a political cause–not free speech!–, to rally the faithful, to pander to those who would care little for constitutional niceties that get in the way of their political objectives.
Seeking to impress such a constituency strikes me as a depressingly low political benchmark to set for oneself.