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House Passes Bill Barring Universities From Federal Funding For Boycotting Israel

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by blueapples
Friday, Sep 04, 2026 - 12:30

blueapples on X | ashesofacacia.substack.com

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It wouldn't be another day in the United States without the government putting the interests of Israel ahead of American citizens. Despite seeming as if it has already exhausted every avenue at its disposal to submit to its masters in Tel Aviv, Congress managed to find another way to show the American people who is actually in charge of their country. Members of the United States House of Representatives leaving Washington, D.C., to head back to their respective districts for a work period running until September 13th, 2026, used their last legislative day on Capitol Hill to pass a piece of legislation that once again shows the American people where their government's priorities truly lie.

The House passed H.R. 4795: The Protect Economic and Academic Freedom Act ("PEAFA") by a 237-169 vote. The legislation is designed to undermine the boycott, divest, and sanctions ("BDS") movement by barring colleges and universities across the U.S. from receiving federal funding if they participate in boycotts against Israel. The bill passed the House largely along party lines. Only 33 Democrats broke rank with their party in voting in favor of the legislation. Representatives Warren Davidson of the 8th congressional district of Ohio and Thomas Massie of the 4th congressional district of Kentucky were the only 2 Republicans to vote against the bill. The monumental piece of anti-BDS legislation is now slated to head to the Senate for a vote in the upper chamber of Congress.

In typical congressional fashion, members of the House of Representatives managed to work across the aisle when it came to voting in favor of Israel.

In what appears to be a fait accompli, the passage of the PEAFA by the Senate and its signature into law by President Donald J. Trump would implement wide-sweeping anti-BDS measures aimed at preventing colleges and universities from boycotting the State of Israel. The legislation makes funding distributed to colleges and universities under Title IV federal student-aid programs contingent upon certification from those institutions of higher learning that they are not engaged in any non-expressive commercial boycotts of the nation of Israel or any entities organized, licensed, or regulated under Israeli law. Failure to comply with that certification would mean that any universities involved in boycotts of Israel would be ineligible to receive federal student aid, including both Pell Grants and student loans. Colleges and universities would still be able to receive federally funded GI Bill benefits, which lie outside of Title IV as well as private student loans and state-funded financial aid under the provisions of the bill.

Signing of the PEAFA into law would also add an additional institutional certification for colleges and universities to receive federal funding for Title VI international education programs. Those institutions of higher learning would have to certify that they do not restrict their students or faculty from participating in academic programs with Israel. They would also be prohibited from restricting students or faculty from Israel from participating in academic programs at their institutions. Programs covered by this provision include study-abroad programs, joint research programs, conferences, teaching exchanges, and other academic initiatives.

Tim Walberg, the Republican representative for the 5th congressional district of Michigan and chair of the House Education Committee, described the motives driving the passage of the PEAFA . “This legislation is about a simple principle: our colleges and universities should not discriminate against Israel, Israeli institutions, or Israeli students, and federal taxpayer dollars should never support institutions that engage in such discrimination,” he said. Bobby Scott, the highest-ranking Democrat on the House Education Committee, pushed back against the legislation by highlighting how no colleges or universities have officially entered into the BDS movement. In his rebuke of the PEAFA, Scott raised concerns over how it could infringe upon constitutional protections under the First Amendment.

Chief among the constitutional concerns raised over the PEAFA is how boycotts have been recognized as constitutionally protected under the First Amendment. The Supreme Court of the United States ("SCOTUS") has held that politically motivated boycotts similar to the BDS movement are constitutionally protected exercises of the rights to free speech, protest, association, and petition activity. This precedent was set in 1982 following the landmark decision by the SCOTUS in the case of National Association for the Advancement of Colored People v. Claiborne Hardware Co. ("NAACP"). In NAACP, the SCOTUS held that the broad power of states to regulate economic activities does not include prohibiting peaceful advocacy of a politically motivated boycott because those non-violent elements are entitled to protection under the First Amendment. 

The gravity of the precedent of NAACP is evident from the language of how the PEAFA was written. Operatively, the legislation specifically targets "nonexpressive commercial boycotts" as opposed to active ones. In essence, the bill is not prohibiting any college or university from advocating for a boycott on Israel. Instead, its intent is to target the exclusionary practice promoted by the BDS movement of refusing to enter into any contracts or academic programs associated with Israel. On that basis, proponents of the legislation argue that the law is not a prohibition on any exercise of rights protected by the First Amendment but rather that it merely sets conditions for federal funding.

That argument is fortified by the 2006 SCOTUS decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. ("FAIR"). In FAIR, the SCOTUS upheld the right of the Secretary of Defense to deny federal grants for colleges and universities under the 1996 Solomon Amendment if they denied military recruitment on their campuses. The court held that the funding conditions implemented by the Secretary of Defense did not infringe upon any college or university's right to express its viewpoints under the First Amendment. Instead, it found that the Solomon Amendment regulated conduct, not free speech, because providing the access of military recruiters to their campuses was not tantamount to an endorsement of their activities. This determination distinguished the conditional funding enforced by the Solomon Amendment contingent upon allowing military recruiters on campus from compelled speech by the government. Due to the exclusionary nature of policies barring military recruiters from campuses, the SCOTUS deemed the practice was not inherently expressive conduct because it did not sufficiently communicate a clear message without additional speech. Thus, the nonexpressive nature of the policy did not meet a threshold that implicated concerns over infringement of the First Amendment.

However, unlike the issues raised in FAIR, arguments against the PEAFA wade into the waters of viewpoint discrimination. Unlike the Solomon Amendment, the PEAFA is not viewpoint-neutral legislation because the provisions of the bill exclude funding to institutions of higher learning solely for boycotting Israel. Under the legislation, a college or university that entered into a boycott against any other country would not similarly be excluded from receiving federal funding for Title IV or Title VI programs. The asymmetrical exclusion from federal funding is strictly determined by whether or not an institution of higher learning boycotts Israel. This opens the door to the argument that the conditions for federal funding enforced by the PEAFA are not made in the interest of regulating the broad commercial practices of colleges and universities but target a specific viewpoint those practices are an active expression of.

Since boycotting Israel is not solely a commercial decision but one that is an act of political expression in-and-of-itself, colleges and universities involved in BDS activity could argue that the purpose of their boycotts makes them expressive. Therefore, First Amendment concerns over the expressive nature of the boycotts make the precedent set by NAACP more relevant than the one set by FAIR. Furthermore, that determination would mean that BDS activity engaged by colleges and universities lies outside of the scope of the PEAFA altogether, because the scope of the statutory language of the legislation only applies to nonexpressive commercial boycotts.

The magnitude of the First Amendment concerns over the PEAFA is evident from them even being recognized by some of the most ardent opponents of the BDS movement in Congress. Jerry Nadler, the Democratic representative for the 12th congressional district of New York, characterized the PEAFA as a "direct and gross violation of the First Amendment." A press release issued a day before Nadler voted against the legislation addressed how the bill mischaracterized the nature of boycotts against Israel as nonexpressive commercial acts. “Many of those engaged in boycotts of Israel do so not for commercial reasons, but because they wish to express their political opposition to the policies of the Israeli government — matters of overwhelming public concern and debate in the present moment. HR 4795’s labeling such boycotts as 'non-expressive' does nothing to change this reality," the press release read.

Democratic representative for the 46th congressional district of California, Lou Correa, also issued a press release explaining why he opposed the legislation despite not supporting the BDS movement. “I don’t support boycotts. Never have. But I won’t hamstring the First Amendment to jeopardize federal student aid. This bill punishes universities and students for exercising their freedom of speech. Once we condition student aid on what people believe, that door doesn’t close," the press release read, addressing the First Amendment concerns highlighted by opponents of the PEAFA .

Representative Thomas Massie from Kentucky, one of just two Republicans to vote against the legislation, took his criticism of the bill even further in explaining his opposition to it. “Congress did one and only one thing today. The House passed a bill to withhold money from universities if they don’t play nice with Israel. I voted no. It’s not proper for our federal government to coerce universities into engaging with any particular foreign country," he stated. Massie's remarks condemned the political motives he saw driving the PEAFA, in line with his long record of opposing Israel-first legislation and policymaking, which has made him a target of the pro-Israel lobby that spent tens millions of dollars to unseat him from Congress in May.

Any doubt surrounding the ulterior political motives Massie condemned as being the impetus for the passage of the PEAFA by the House was erased by proponents of the legislation with how they defended their decision to vote in favor of it. Republican representative Chris Smith of the 4th congressional district of New Jersey, who also serves as the co-chair of the House Bipartisan Task Force for Combating Antisemitism, issued a press release explaining his support for the legislation after voting in favor of it. Smith's rationale conveyed how the legislation was designed to subvert the growing sentiment against Israel that students at colleges and universities across the nation have come to express more overtly in recent years. “This critical legislation stands up for Jewish and Israeli-American students, sending a strong message that the United States will no longer subsidize colleges or universities that engage in antisemitic or discriminatory practices against a leading strategic partner, Israel,” Smith stated.

Republican representative Virginia Foxx of the 5th congressional district of North Carolina, who sponsored the bill, explained her vote to pass the legislation by evoking a pathological argument against antisemitism that failed to address any of the constitutional concerns the bill has raised. “The antisemitic rot that has corroded college campuses must be eradicated — enough is enough,' she stated. Democratic representative Josh Gottheimer of the 5th congressional district of New Jersey, who co-sponsored Foxx's bill, did briefly address the implications the legislation has on the First Amendment, albeit by impetuously dismissing them. “Universities have no First Amendment right to engage in BDS," he stated.

As of the time of the House's passage of the PEAFA, 38 states in the U.S. have implemented some kind of anti-BDS law or policy, whether through executive order or state legislation designed to penalize or discourage boycotts of Israel. However, the act passed by the House marks an unprecedented escalation in the fight against boycotts against Israel, as it is poised to become the first federal anti-BDS legislation enacted into law.

Initiatives enacted at the state level that have been challenged in court have been met with mixed results. In Arizona, Kansas, and Texas, challenges to anti-BDS measures have led to the states amending the scope of the laws enacting them, as the rigorous challenges of defending them in the courts have proven to be too difficult to navigate. In Arkansas, the anti-BDS movement saw its greatest legal victory in the case of Arkansas Times LP v. Waldrip (2022). In Arkansas Times, the U.S. Court of Appeals for the Eighth Circuit ultimately upheld Act 710 enacted into law by the State of Arkansas. The law prohibited state entities from entering into contracts with private companies unless they certified they were not currently boycotting Israel nor would they in the future. The Eighth Circuit ultimately ruled that the law did not prohibit free speech, as it only applied to purely commercial, nonexpressive conduct.

The decision by the Eighth Circuit in Arkansas Times is an ominous omen for opponents of anti-BDS legislation. The case law it created conforms to the arguments proponents of the PEAFA have made in the legislation's favor, asserting that the legislation narrowly regulates nonexpressive commercial boycotts. An even more foreboding portent that lies ahead in the challenges to anti-BDS legislation is that the SCOTUS denied a petition for a writ of certiorari filed by the Arkansas Times to have review the decision by the Eighth Circuit, leaving the ruling as the most significant case law on the specificity of the issue as to whether BDS initiatives constitute an expressive or nonexpressive form of commercial boycott.

However, given the federal level of the legislation opposed to the narrower state law reviewed by the Eighth Circuit in Arkansas Times, the impact of the PEAFA on Americans' rights under the First Amendment poses distinct legal questions that remain unanswered. Those questions set the stage for legal challenges that seem preordained to arrive at the feet of the SCOTUS if the PEAFA is indeed signed into law.

While legal questions over the constitutionality of the PEAFA have yet to be brought before the courts as the legislation has yet to be passed by the Senate and subsequently signed into law, the passage of it by the House answers another question all too relevant to the concerns of Americans: where they fall in the order of priorities of their elected representatives. The House's passage of the PEAFA is another damning instance of Congress treating its constituents as second-class citizens when it comes to weighing their interests against those of Israel's. That dynamic demonstrates how the fight for the BDS movement has become about much more than opposing Israel. It is a battle being waged to uphold the foundational values of the American ethos: the freedoms of speech, association, and protest. While the outcome of that battle is crucial for the future of the U.S., the fact that the federal government is fighting in favor of restricting those rights of its citizens to advance the interests of Israel may already prove all too well that the republic was lost long ago.

Contributor posts published on Zero Hedge do not necessarily represent the views and opinions of Zero Hedge, and are not selected, edited or screened by Zero Hedge editors.
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