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The City University of New York (CUNY) system is facing increasing pressure, both internally and externally, to respond to anti-Semitism on campus—pressure resulting from calls by a pro-Israel organization to banish chapters of FIREfor Justice in Palestine (SJP) from CUNY campuses. In the balance hang CUNY’s finances, as the New York State Senate, angered by “negative rhetoric and intimidation,” has threatened to withhold millions—perhaps as much as —in funding unless CUNY fulfills a vague request for a “plan” to respond to anti-Semitism on campus.

There is more than a passing concern that the funding threats—if not CUNY’s efforts to quickly respond to the criticism—could lead to censorship or have a chilling effect on campus activists. Some thirty-five New York State Assembly members today to CUNY calling for the immediate suspension of SJP from all CUNY campuses, while CUNY conducts an official investigation which may see students (and faculty members) targeted for speech protected by the First Amendment.

CUNY’s predicament is rooted in a conflict over who should fund the CUNY system and increasing calls for campus administrators nationwide to respond to anti-Semitic speech, with some critics conflating anti-Israel political speech with anti-Semitic speech.

Cuomo’s CUNY Cuts Create Chance to Call for Censorship

While the CUNY system is largely funded by New York City, the state of New York provides a substantial amount of the system’s funding. Governor Andrew Cuomo, that New York City should assume responsibility for this funding, submitted a proposed budget cutting $485 million in CUNY funding—or about of its funding—in January. The New York State Assembly Governor Cuomo’s plan and restored funding, passing the matter on to the New York State Senate.

The New York State Senate, in turn, approved a which would restore some funding, but not the $485 million cut from the Governor’s budget, and only on the condition that CUNY assures the Senate it has a plan to “guarantee the safety of students of all faiths” following “negative rhetoric and intimidation” involving “anti-Semitic events[.]” The Senate’s reads, in relevant part:

The Senate accepts the Executive’s proposal to require that New York City provide 30 percent of the operating costs and debt service expenses at CUNY senior colleges. However, it encourages the Executive and the New York City mayor to work together to reach a resolution that will not negatively impact the CUNY system, including the potential development of a plan to increase efficiencies. In light of recent anti-Semitic events at CUNY campuses, the Senate denies additional funding for CUNY senior schools until it is satisfied that the administration has developed a plan to guarantee the safety of students of all faiths. The Senate fully understands the importance of the City University System, and supports the full restoration of State support when this difficult and atrocious situation is adequately addressed. The negative rhetoric and intimidation that has occurred, while not condoned by the majority of the honorable and ethical faculty or student body, is still troubling. On this issue of paramount importance, religious freedom must be protected if the Senate is going to support not only restorations, but any additional funding for operating aid.

The exact funding in dispute here is unclear, ranging from several million dollars to hundreds of millions. In any event, some substantial amount of funding is being conditionally withheld by the Senate, and CUNY administrators are under pressure to come up with “a plan to guarantee the safety” of their students, with explicit reference to “negative rhetoric” being of concern to the Senate. When, exactly, this plan would have to be presented is also unclear; the New York legislature’s funding process on April 1.

The Zionist Organization of America vs. FIREfor Justice in Palestine

But what spurred the Senate’s concern? As the Wall Street Journal , the Senate’s criticism of the CUNY administration was the offspring of a sent by the Zionist Organization of America (ZOA) to CUNY’s Chancellor and Board of Trustees.

The from the ZOA catalogues a lengthy list of incidents on CUNY campuses, ranging from heated rhetoric during demonstrations, where official punishment would have alarming First Amendment ramifications, to conduct not remotely protected by the First Amendment, such as graffiti swastikas and true threats of violence.

In response to the ZOA’s letter, CUNY Chancellor James Milliken prominent outside counsel—one a former federal and the other a former federal —to conduct a probe of the allegations. In addition to the probe, The Jewish Press that CUNY is establishing a “task force on campus climate” which is “composed of members of the administration, faculty and students,” as well as a “working group to develop board policies on speech and expression[.]”

What Is CUNY To Do?

What, exactly, the New York State Senate wants CUNY to accomplish in order to resolve withheld funding is unclear. CUNY and Milliken’s responsive efforts were well underway—and had already been by the Anti-Defamation League—when the New York State Senate issued its demand, as highlighted in CUNY’s public to the Senate the day following the vote. It could be that the Senate was simply unaware that CUNY had already undertaken efforts to address the issues raised by the ZOA, and that the Senate will be satisfied by efforts already undertaken. Or it could be that the Senate was aware of these efforts and wanted to simply reaffirm its concern that these efforts be completed in a timely and reasonable manner.

The ZOA, too, is what will sate the Senate:

Although the ZOA never personally requested a cut in CUNY funding, we understand and share the New York State Senate’s frustration and shock over CUNY’s failure to respond to the FIREfor Justice in Palestine (SJP) group’s vicious, dangerous and frightening anti-Semitism. The State Senate is using this tool as a way to get CUNY to finally respond to protect Jewish students. The ZOA does not want to see budget cuts that could raise student tuition, but there is no question that threatening a loss of funding is a powerful and effective way to compel CUNY to finally pay attention to and address the harassment and intimidation of Jewish students on CUNY campuses. The ZOA defers to the judgment of our elected representatives to fashion the remedies that they deem necessary and appropriate, and we hope that the threat of losing funding will inspire CUNY to finally address this problem on their campuses. Once the CUNY administration takes serious action to protect its Jewish students, we assume that the proposed cut in funding will be withdrawn.

FIRE is worried that the New York State Senate’s vague demands will push CUNY administrators toward punishing speech critical of Israel. Our concerns are shared by Eric Alterman, a professor at CUNY’s Brooklyn College, who the Senate’s acts in the New York Times:

The notion that politicians can demand that a university prohibit certain types of political speech it finds politically distasteful by threatening its funding not only makes martyrs of those whom it seeks to silence, it also bespeaks a lack of confidence both in its own beliefs and in the value of reason itself.

Palestine Legal expressed similar concerns in a statement to ��֭����:

While CUNY should take real instances of anti-Semitism (just like anti-black and anti-Muslim racism) seriously, including through investigations, we have yet to see evidence that such instances are attributable to speech supportive of Palestinian rights. We are concerned that ZOA’s letter will result in censorship of speech supportive of Palestinian rights by falsely conflating anti-Semitism with speech critical of Israeli policy.

The possibility that the Senate’s funding refusal, or CUNY’s efforts to respond to criticism, could lead to campus censorship is not a passing or idle concern. Rather, a number of elected officials—and the ZOA, whose letter set these processes in motion—are explicitly calling upon CUNY to punish SJP chapters. Further, CUNY’s probe—even if well-meaning—may subject students to official investigations for protected speech, or for simply being associated with SJP chapters or members.

The ZOA’s , for example, makes five requests of CUNY, largely focused on SJP. These requests range from calls that CUNY use its own speech to more directly condemn anti-Semitic speech (and SJP in particular), issue a statement condemning anti-Semitism generally, and include anti-Semitism in diversity training, to demands that CUNY conduct an investigation into SJP chapters and their funding. The ZOA also calls for revocation of “the group’s registered status” if it has violated CUNY rules and policies, as “[t]his group does not deserve a place on any CUNY campus until it can demonstrate that it will respect and abide by the rules and standards that apply to everyone else.” ZOA’s position was later succinctly summarized in a :

[CUNY] must publicly condemn the SJP, the perpetrators of the anti-Semitism, by name, so that the SJP will be sent the message that they are a disgrace to CUNY and society’s values. And, since the SJP refuses to comply with the rules and policies that apply to every student group, they must throw the SJP off every CUNY campus.

A number of New York state legislators are taking up the latter demand. As the New York Daily News , Senator Jack Martins pledged that he would attempt to ensure that no government funding is permitted to go to SJP chapters, adding:

The purpose of the group is to harass, intimidate and frankly assault Jews attending schools, and we can’t have the government or the university underwriting a hate group[.]

Martins isn’t alone. Thirty-five members of the New York State Assembly, led by Assemblyman Dov Hikind, today called for the “” of all SJP chapters at CUNY campuses, sending a to that effect to CUNY Chancellor Milliken:

We call for the immediate suspension of the Student [sic] for Justice of Palestine from City University of New York campuses, sending a clear and unequivocal message that hatred and bias have no home at CUNY. No funding should be awarded to a group that engages in incitement and intimidation.

In a , Assemblyman David Weprin, a signatory to the letter, said:

The inciteful speech promoted by SJP and its supporters silences critical and open thought while limiting the free exchange of ideas. Hate Speech is not Free Speech and I call on CUNY to keep their campuses hate-free by taking concrete action on SJP.

Nor are elected officials’ calls limited to the state legislature. New York City Councilman David Greenfield CUNY to punish SJP because “they’re not engaging in free speech, they’re engaging in hate speech.” Other members of the New York City Council took a narrower approach, sending a letter to CUNY that, “given that hate speech, particularly in charged atmospheres, is often a precursor to violence, we insist that you inform us of your system-wide policies on reporting hate-based harassment or violence to the New York Police Department[.]”

Demands That CUNY Target SJP Present May Lead CUNY Into Treacherous First Amendment Issues

To be sure, CUNY has a legal and moral duty to respond to incidents of violence, true threats, and other unlawful conduct perpetrated in service of political ideology, irrespective of which viewpoint or ideology it purportedly serves. CUNY can enforce its content-neutral rules in an even-handed and viewpoint-neutral manner. CUNY may also use its own institutional voice to criticize acts or speech it finds inappropriate, as it .

But CUNY’s path forward is fraught with important and nuanced First Amendment issues that CUNY will have great difficulty navigating thanks to the Senate’s vague request and Assembly members’ explicit demands, particularly when coupled with substantial pressure resulting from threats to withhold funding. If, for example, the New York Senate expects an end to all “negative rhetoric” as part of a plan to “adequately address” anti-Semitism, CUNY may be asked to do what it cannot under the First Amendment: punish protected student speech simply because others find it offensive.

Speech—even offensive, caustic speech, or speech classified by some or even many as “hate speech”—is presumptively protected by the First Amendment, unless it falls into certain well-defined categories, such as incitement, true threats, fighting words, harassment, or obscenity. Each of these categories has been narrowly construed, and the Supreme Court has not softened the First Amendment’s application in the collegiate context. Rather, the Supreme Court has that:

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

Indeed, the ZOA acknowledged to FIREthat “[m]uch if not all of the speech described in the ZOA’s letter may be protected under the First Amendment” and said that concerns about free speech were a “false, strawman characterization” because the ZOA has never called for people to not be able to make anti-Semitic statements. But many of the incidents in the ZOA’s letter involve speech, and the letter calls for investigations into and punishment for what may be protected speech. And while the ZOA’s letter recites some allegations against SJP chapters themselves, it broadly characterizes SJP’s speech as inciting the incidents in question—a theme echoed repeatedly by the press release for the letter from the thirty-five Assembly members calling for SJP’s suspension. For example, the ZOA letter’s discussion of events at Brooklyn College asserts that particular acts were undertaken by students who “may well have been members or supporters of the SJP” and that, even if they were not, the SJP is a “hate group” which has “done a good job of fomenting Jew-hatred on campus without suffering any consequences, which no doubt encouraged the disruptors to do and say what they did.”

But incitement is not so broad an exception to the First Amendment as to render SJP susceptible to punishment for others’ acts in every instance. Incitement, rather, is an exception to instances of speech “directed to inciting or producing imminent lawless action and [...] likely to incite or produce such action.” Speech that, however caustic, does not both ask its listener to act unlawfully and create the reasonable possibility that the listener will shortly act unlawfully (and not at some later point) falls short of this exception. Thus, speech critical of Israel—and even anti-Semitic speech—is unlikely to be unprotected on this basis.

Nor, likewise, can an individual chapter of SJP be punished for acts undertaken by a chapter at another campus. In Healy v. James (1972), the Supreme Court held that a public college could not refuse to recognize a chapter of the left-wing group FIREfor a Democratic Society (SDS), even though other chapters of the organization had been instrumental in fomenting tumultuous, violent acts on campus. This period, the Supreme Court noted, was—to put it mildly—tense:

A climate of unrest prevailed on many college campuses in this country. There had been widespread civil disobedience on some campuses, accompanied by the seizure of buildings, vandalism, and arson. Some colleges had been shut down altogether, while at others files were looted and manuscripts destroyed. SDS chapters on some of those campuses had been a catalytic force during this period.

But the Court held that acts of other SDS chapters were insufficient to deny the group its right of association on campus. “[G]uilt by association alone, without [establishing] that an individual’s association poses the threat feared by the Government, is an impermissible basis upon which to deny First Amendment rights.” Healy v. James, 408 US 169, 186 (1972) (internal quotation marks omitted).

It would be inconsistent with the First Amendment for CUNY to abide by legislators’ demand that every SJP chapter be immediately suspended. Even were there a basis to suspend a particular chapter, suspending every chapter because of one chapter’s activities would certainly run afoul of the First Amendment right to association.

Between CUNY’s working group, tasked with developing policies on “speech and expression,” and the New York Senate’s financial pressure on CUNY to provide assurances that it has a “plan” to combat, in part, “negative rhetoric,” there is ample reason to worry that students’ free speech rights are at risk. In an effort to avoid loss of funding, administrators may feel pressured to curb inflammatory political speech, either through issuing vague speech codes or by disproportionately (or selectively) enforcing existing regulations against student organizations. At ��֭����, we know all too well the immediate and powerful effect that a threat to universities’ funding can have; just look at the collapse of free speech and due process on campus that has been happening since the Department of Education launched an aggressive Title IX enforcement campaign in 2011.

CUNY, for its part, warned the New York State Senate (as well as the ) that, as a public institution, it was :

As a public university, CUNY cannot infringe the constitutional rights of free speech and association of its students, faculty and staff. Further, as an institution of higher education, CUNY is committed to the principles of academic freedom and the free exchange of ideas, which are at the very foundation of American higher education. The ideas and opinions of members of the University community will often conflict, and the University cannot shield individuals from speech they find unwelcome, disagreeable or even at times offensive.

Hopefully, CUNY will keep this commitment notwithstanding calls for it to part ways with its lawful obligations under the First Amendment.

FIRE will continue to keep abreast of the developments at CUNY. If student organizations are threatened by administrators as a result of protected speech, FIRE would like to hear from them.