GOP officials say states could punish colleges that divest from Israel. Could they?

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As they return to college campuses this fall, pro-Palestinian student activists are encountering a new foe: lawyers for conservative states.

Last month, two dozen Republican attorneys general sent a harsh letter to Brown University ahead of the Ivy League school’s planned vote to consider dropping its investments in companies with ties to the Israeli military. If that proposal is adopted, the officials warned, it would have “immediate and profound legal consequences” for staff and students.

“Adopting that proposal may require our States – and others – to terminate any existing relationships with Brown and those associated with it,” they wrote, citing antiboycott laws on the books in their states.

The threat suggested the school could lose money if those state governments stopped doing business with them. But the attorneys general didn't spell out exactly how that could happen. In a statement to USA TODAY, Steve Marshall, Alabama's attorney general, said the repercussions could come in the form of severed investments and contracts, but didn't provide further details.

The actual impact antiboycott laws could have on colleges like Brown is debatable. Two weeks ago the Muslim Legal Fund of America shrugged off the warning, saying the letter amounted to a fruitless attempt to force the Rhode Island school to comply with laws outside its jurisdiction. In a separate letter to Brown’s administrators, lawyers for the fund called on the university to reject the “baseless threats of legal repercussions.”

The debate marks a new phase in the campus divestment movement, as the few colleges where administrators considered protesters' demands start a new school year. Though most schools ultimately dismissed requests to disentangle their investment portfolios from companies with connections to Israel, some seemed to entertain those asks more earnestly. In late August, for instance, San Francisco State University said its foundation would stop investing in companies that make money from weapons manufacturing. Other schools also took steps to assuage student activists.

SFSU spokesperson Kent Bravo said via email the university has not received any warnings about antiboycott laws. Bravo also noted the foundation's divestment policy is solely based on the amount of money coming from weapons makers and not the geography of those companies

The letter to Brown also highlights the degree to which politicians, even at the state level, continue to see political opportunity in wading into the dynamics of campus protests about the Israel-Hamas war. Amid promises from some students that another surge of activism is imminent, the legal arguments over antiboycott laws highlight how much resistance there still is to divestment.

Divestment, explained: Pro-Palestinian protesters urge universities to divest from Israel. What does that mean?

At a dinner earlier this month with reporters in Washington, D.C., several prominent college presidents commented on the difficult task of handling the anti-war protests in the spring. Some student activists, they suggested, were making requests that were unrealistic.

Carmen Twillie Ambar, the president of Oberlin College in Ohio, said she encouraged students on her campus to think about alternate avenues to push for change in the Middle East. Some of their demands surrounding divestment, she said, were “like trying to take cheese out of baked lasagna.”

Antiboycott laws: What are they? Roughly 40 states have enacted laws, executive orders or resolutions meant to discourage the boycott, divestment and sanctions – or BDS – movement, according to the Jewish Virtual Library. In 2017, the Arkansas Legislature passed a law prohibiting public entities from contracting with and investing in companies that boycott Israel, arguing that companies that refuse to deal with the Israeli government for political reasons are engaging in discrimination. The law came at a time when pro-Israel lobbyists were successfully pushing through dozens of policies in state capitals across the country.

USA TODAY investigation: One way to silence Israel boycotts? Get lawmakers to pass anti-BDS bills

In the recent warning letter to Brown, Arkansas’ attorney general, Tim Griffin, said if Brown were to adopt the divestment proposal set for a vote in October, his state and others would be forced to consider terminating “any existing relationships with Brown.” Many of the states mentioned in the letter said they’re already reviewing their pension investments and contracts to determine if the university had done anything to violate their laws.

But Brown likely doesn’t have much reason to worry, said Chris Marsicano, an education professor at Davidson College in North Carolina.

“It’s not like the state of Arkansas is doing much business with Brown University,” he said.

However, antiboycott laws may pose a greater financial problem at public universities considering divestment, according to Adam Gjesdal, a fellow at the Heterodox Academy, a nonprofit group advocating diverse viewpoints on college campuses. He has argued that divestment at those schools could raise tuition prices.

"University administrators are facing all sort of obstacles to divestment that the students are not really considering," he said in an interview. "It’s a difficult thing for everyone involved."

Brian Clark, a spokesperson for Brown, said in an email the university has a longstanding process of examining any proposals for divestment and is committed to a fair and thorough review of students’ requests.

A free speech issue? Supporters of state antiboycott laws say they protect against discrimination. Shira Goodman, the vice president for advocacy at the Anti-Defamation League, a Jewish civil rights group, said it’s hard to predict how a school’s decision to divest from Israel could impact students.

“The fiduciary responsibilities that these investment managers have are really serious,” she said. “What does this do to our campus and what does it mean going forward?”

Opponents of antiboycott laws, meanwhile, have argued they violate the First Amendment, which protects the rights to free speech and peaceful protest. Gadeir Abbas, a senior litigation attorney with the Council on American-Islamic Relations, a Muslim advocacy group, said the letter is part of an antiboycott “hysteria.”

“In this climate, any university should take that letter as a threat,” he said. “Brown University has constitutional rights as well.”

Student activists unfazed In May, the National Lawyers Guild wrote to Brown, assuring the university it could boycott Israel in a legal way. A 1982 Supreme Court decision established that political boycotts are protected under the First Amendment, the group said.

Yet in the decades since that ruling, other court cases have created confusion about the legal merit of boycotts in specific circumstances. In 2018, a college in Arkansas tried to force a local newspaper to sign an antiboycott pledge before it would agree to continue advertising with the outlet. The paper in Arkansas, a state which has played an outsized role in the antiboycott discourse, sued the school. A circuit court sided with the college, and the Supreme Court last year declined to take up the case.

Students at Emerson College supporting Palestine sleep in tents in an encampment in Boston on April 22, 2024. President Joe Biden condemned any anti-Semitism on college campuses on April 21, 2024, as pro-Palestinian protesters at Columbia University spent their fifth day demanding the school sever financial ties with U.S. ally Israel.

Those cases, of course, did not involve the complexities of college endowments. Because investments in the U.S. are already strictly regulated, some courts may be more favorable to lawsuits that challenge campus divestment.

At Brown, student activists said they remain cautiously optimistic. Rafi Ash, a junior student leader among those calling for divestment, said he wasn't fazed by the letter from Republican officials.

“These are pretty clearly extremist politicians using the law as they make it up,” he said.

Zachary Schermele covers education and breaking news for USA TODAY. You can reach him by email at zschermele@usatoday.com. Follow him on X at @ZachSchermele.

This article originally appeared on USA TODAY: Could state laws complicate calls for Israel divestment on campuses?

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