House passes bill banning federal funds to universities that boycott Israel

U.S. courts have generally held that boycotts are an economic activity that is not protected by the First Amendment and have upheld similar laws at the state level.

By Andrew Bernard, JNS

The U.S. House of Representatives passed a bill on Thursday that would bar federal funding to universities that boycott Israel.

The Protect Economic and Academic Freedom Act, sponsored by Reps. Virginia Foxx (R-N.C.) and Josh Gottheimer (D-N.J.), passed on a bipartisan basis, 237-169.

The measure prohibits universities that receive federal student aid funds from engaging in a commercial boycott of a “major strategic partner” of the United States and requires universities to certify that they are not obstructing academic engagement with any such partners as a condition for receiving federal funding for international studies programs.

Israel is the only “major strategic partner” of the United States designated in the law that the bill cites.

Nearly every Republican voted for the measure, with only Reps. Thomas Massie (R-Ky.) and Warren Davidson (R-Ohio) voting against it. Massie routinely votes against measures involving foreign policy. (JNS sought comment from Davidson.)

Democrats, including the entire Democratic House leadership, largely opposed the measure.

The 33 Democrats who backed the bill included a mix of pro-Israel, Jewish and moderate congressmen, including Reps. Ritchie Torres (D-N.Y.), Brad Sherman (D-Calif.) and Jared Golden (D-Maine).

Opponents of the measure said that it would infringe on the right to free expression.

Rep. Jerry Nadler (D-N.Y.) said before the vote that he was opposed to the boycott, divestment and sanctions movement against Israel, but believed that the act was “a direct and gross violation of the First Amendment” and objected to its treating “the entire West Bank as part of Israel.”

“The United States and Congress must recognize the difference between the State of Israel and the territory it occupies beyond the Green Line,” Nadler said.

“Imposing penalties on institutions of higher education for opposing activities that advance annexation, blur that crucially important distinction and undermine prospects for a two-state solution would establish a deeply troubling precedent.”

U.S. courts have generally held that boycotts are an economic activity that is not protected by the First Amendment and have upheld similar laws at the state level.

Anti-Israel and pro-First Amendment groups have disputed that legal analysis, and the U.S. Supreme Court has not taken up any cases challenging state laws that bar anti-Israel boycotts.

Speaking on the House floor before the vote, Gottheimer, the bill’s co-sponsor, said the measure was designed to protect First Amendment rights.

“It doesn’t touch anyone’s speech, protest or academic debate,” Gottheimer said. “It simply says that if your university takes federal taxpayer dollars, it can’t discriminate against academic partnerships or investments with one country. That’s it.”

The Louis D. Brandeis Center for Human Rights Under Law, a group that advocates for the civil rights of Jews, welcomed the House’s passage of the bill.

“American higher education institutions should not participate in discriminatory boycotts targeting Israel or any other American ally, its academic institutions or those who choose to engage with them,” said Kenneth Marcus, chairman and CEO of the Brandeis Center.

“Discriminatory boycotts fuel antisemitism, create toxic environments, and undermine civil rights. We are encouraged by this important first step toward preventing discrimination.”

The bill will now proceed to the Senate.