New York Governor’s Blacklist of Pro-BDS Advocates Raises Concerns for Campus Speech

Yesterday, New York Governor Andrew M. Cuomo signed an executive order directing his government to create a blacklist of any “institution or company” found to be engaging in—or merely encouraging others to engage in—a boycott of or divestment from the state of Israel or those doing business with the state of Israel. Unfortunately, the language of Cuomo’s executive order is vague enough that it may be read to encompass college student organizations or to chill academic speech on university campuses. Cuomo should immediately clarify the order so that it does not apply to faculty or student speech.

The order targets the BDS movement, which calls for boycotts of Israel and Israel-connected businesses. Pro-BDS advocates have pushed for universities to join by proposing and passing largely non-binding resolutions through student governments.

Cuomo’s executive order, and the blacklist it would create, is concerning in its potential implications for student and faculty speech, as would the creation of any government list of disfavored people or organizations based on their views or advocacy. In six months, the state of New York will create a list of organizations that, based on “credible information available to the public,” engage in “[b]oycott, divestment, or sanctions activity targeting Israel.” The New York order extends beyond a mere refusal to do business with Israel, encompassing even organizations who do no more than encourage others to boycott Israel (emphasis added):

“Boycott, divestment, or sanctions activity targeting Israel” means to engage in any activity, or promote others to engage in any activity, that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel for purposes of coercing political action by, or imposing policy positions on, the government of Israel.

Any “institution or company” on the list will not be eligible for “money or assets,” and such “money or assets” are to be divested by the state from those institutions or companies. The preamble, while presumably non-binding, indicates that New York “will not permit its own investment activity to further the BDS campaign in any way, shape or form, whether directly or indirectly.”

What institutions might this affect, and how? The order isn’t precisely clear, but it almost certainly applies to many of New York’s public universities and private colleges, to the extent that private colleges receive state funding. The order makes clear that institutions distributing state funds—which includes “all public-benefit corporations, public authorities, boards, and commissions, for which the Governor appoints the Chair, the Chief Executive, or the majority of Board Members”—must “divest their money and assets from any investment in any institution or company that is included” on the blacklist. The governor appoints the majority of the boards of both the State University of New York System (SUNY) and the City University of New York (CUNY), obliging SUNY and CUNY to desist from providing “money or assets” to any “institution or company” that promotes BDS. Likewise, private colleges, to the extent that they receive state funds or assets (which some programs at Cornell University do, for instance), may find those assets at risk if they wind up on the list.

To what extent might SUNY and CUNY student organizations, student governments, or other groups fall within this definition? The order makes clear that an organization can find itself on the list if promotes BDS “either directly or through a parent or subsidiary[.]”

Would a student government’s funding of a pro-BDS organization fall within this definition?  Are they considered a “subsidiary” of the university, such that the university’s funding (or a student government’s funding) might be at risk if a student organization were funded? A CUNY student government recently endorsed BDS; will it wind up on Governor Cuomo’s blacklist? Would a faculty member’s endorsement of the BDS movement imperil funding for their department or university?

To be sure, longstanding precedent makes clear that students, student organizations, and faculty are not subsidiaries of universities and do not speak on behalf of universities. But much of the BDS movement springs from college campuses and, just this past spring, New York’s legislature threatened millions of dollars in CUNY funding over student speech critical of Israel. And elected officials similarly threatened CUNY funding because faculty members co-sponsored an event featuring pro-BDS speakers. Given how closely the BDS movement is related to campus speech, Cuomo would have done well to clarify how his executive order applies—or does not apply—on state campuses.

To the extent that the executive order would apply to student organizations or governments, it is unconstitutional. As others have pointed out, anti-BDS legislation targeting the actual act of boycotting may violate the unconstitutional conditions doctrine. As explained by the United States Supreme Court in Perry v. Sindermann (1972), that doctrine prohibits the government from denying “a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.” Cuomo’s order goes even further, encompassing organizations that do no more than advocate for a boycott, even if they do not engage in a boycott themselves.

Students, their organizations, and faculty must be free to criticize Israel and to encourage others to do the same, without worrying that their speech—wholly protected by the First Amendment—will endanger their institutions’ or organizations’ funding. As FIRE President and CEO Greg Lukianoff wrote last year, FIRE takes no position on BDS, except to the extent that it (or, as here, its opponents) might endanger academic freedom:

FIRE’s position on the Israel-focused BDS movement is driven by our concern for academic freedom—for students and professors, and for its continuing importance as a meaningful concept in and of itself. Students and professors must be perfectly free to support boycott, divestment, and/or sanctions against Israel or any other country they wish, and they must not face punishment for this support. [...] FIRE has opposed attempts to punish organizations for supporting BDS, and we have certainly defended professors’ rights to be highly critical of Israel—or, frankly, any other country, person, or idea.

But while students and professors are entirely free to support and campaign for the BDS movement, some of the actual goals of that movement are seriously at odds with fundamental aspects of academic freedom. In particular, the “boycott” part of BDS, which would require American academics not to cooperate with Israeli scholars or institutions, is incompatible with academic freedom. Academic freedom is a vast and majestic idea that relies on open communication across lines of difference in a global system of checking, arguing, researching, collaborating, and competing to produce better ideas. It’s a critical part of the way we come by new knowledge, creative solutions, and novel perspectives. The idea that a college might ban its scholars from working with scholars of a particular nationality or who work in a particular country in the name of opposing that country’s government is incompatible with this open, liberal system. It’s also foolhardy on any number of levels, including the fact that individual professors’ opinions often in no way reflect or even oppose the policies of their own governments.

Cuomo’s order is unacceptably vague and, as a result, threatens to chill speech critical of Israel on state campuses. If the order is not clarified, FIRE will continue to monitor how the state of New York implements its blacklist. If your organization is threatened, please get in touch with us.