Overview
This legislation amends the Higher Education Act of 1965 to condition institutional eligibility for federal student aid funds on compliance with two distinct but related obligations: a prohibition on participating in nonexpressive commercial boycotts of Israel, and a guarantee of unobstructed academic exchange between the certifying institution and Israeli academic programs. The bill operates through the existing title IV program participation framework, leveraging federal funding as the primary enforcement mechanism. Its central objective is to use federal higher education funding as a lever to prevent American colleges and universities from participating in the Boycott, Divestment, and Sanctions (BDS) movement insofar as that movement manifests in commercial conduct, while simultaneously protecting the ability of students and faculty to engage in academic programs in Israel and to host Israeli students and faculty on American campuses.
Key Points
- Prohibits title IV-participating institutions from engaging in nonexpressive commercial boycotts of Israel or Israeli entities
- Requires annual certification of compliance as a condition of federal student aid eligibility
- Mandates that institutions ensure unobstructed academic participation for students and faculty in Israeli programs and for Israeli students and faculty at the certifying institution
- Directs the Secretary of Education to publicly identify non-compliant institutions
Legal References
- Higher Education Act of 1965, 20 U.S.C. 1011 et seq.
- Anti-Boycott Act of 2018, 50 U.S.C. 4842(a)(2)
- Public Law 113-296
Core Provisions
The bill inserts a new Section 124 into Part B of Title I of the Higher Education Act of 1965, establishing the certification and eligibility framework. Under §124(a), any institution participating in a title IV program must submit an annual certification to the Secretary of Education by July 31 of each year affirming that the institution does not and will not engage in a nonexpressive commercial boycott of a major strategic partner of the United States. Failure to submit this certification by the July 31 deadline renders the institution ineligible to receive any title IV funds for the first fiscal year beginning after that deadline. The bill defines 'nonexpressive commercial boycott' under §124(c)(2) as a commercial action intended to limit commercial relations with a major strategic partner that is not based on a valid business reason, drawing directly from the definitional framework of the Anti-Boycott Act of 2018. The term 'major strategic partner' is defined under §124(c)(1) to encompass countries identified in section 4 of Public Law 113-296—which designates Israel—as well as any entity licensed, regulated by, or organized under the laws of such a country. Beyond the anti-boycott certification, §124(b) requires institutions to certify that students and faculty are not unreasonably obstructed from participating in academic programs located in a major strategic partner country, and that students and faculty from major strategic partner countries are not unreasonably obstructed from participating in academic programs offered by the certifying institution. The bill also amends §639 of the Higher Education Act to require the Secretary to maintain and publicly publish a list of institutions that failed to submit the required certification, with direct notification to each listed institution.
Legal References
- Higher Education Act of 1965, §124 (new provision)
- Higher Education Act of 1965, §639(b)
- Higher Education Act of 1965, §487(a)(30)
- Anti-Boycott Act of 2018, 50 U.S.C. 4842(a)(2)
- Public Law 113-296, §4
Implementation
The Department of Education, through the Secretary, bears primary responsibility for implementing and enforcing this legislation. The Secretary's obligations are procedural and administrative: receiving annual certifications from institutions, determining which institutions have failed to certify by the July 31 deadline, publishing a public list of non-compliant institutions, and notifying each non-compliant institution of its listing. The enforcement mechanism is automatic and financial—non-certification triggers ineligibility for title IV funds for the subsequent fiscal year without requiring any additional adjudicatory process. Institutions bear the compliance burden of submitting timely certifications and maintaining internal policies and practices consistent with the certification's substantive requirements, including ensuring that no institutional policies, faculty governance decisions, or administrative actions constitute a nonexpressive commercial boycott or unreasonably obstruct academic exchange with Israeli programs. The annual certification cycle, anchored to the July 31 deadline, creates a recurring compliance obligation that institutions must integrate into their administrative calendars. The bill does not establish a formal appeals or cure process for institutions that miss the certification deadline or are found to have made false certifications, leaving those procedural questions to existing Department of Education administrative frameworks.
Legal References
- Higher Education Act of 1965, §639(b)
- Higher Education Act of 1965, Title IV
Impact
The direct impact falls on the approximately 6,000 institutions of higher education that participate in title IV programs, which collectively administer hundreds of billions of dollars in federal student loans, Pell Grants, and other federal student aid annually. For students at non-compliant institutions, the consequence of their institution's failure to certify would be loss of access to federal financial aid, effectively making attendance financially impossible for the majority of students who depend on title IV funds. This creates an indirect but powerful coercive effect on institutional behavior, as the financial stakes of non-compliance are existential for most institutions. The administrative burden on institutions is ongoing and recurring, requiring annual legal review of institutional commercial relationships, procurement policies, investment decisions, and academic partnership arrangements to ensure none constitute a nonexpressive commercial boycott. Institutions with faculty senates or governance bodies that have passed BDS-related resolutions face particular compliance complexity in determining whether such resolutions, if implemented, would constitute nonexpressive commercial boycotts. The bill's academic exchange provisions create affirmative obligations on institutions to actively facilitate and protect participation in Israeli academic programs, potentially requiring institutions to override faculty or student opposition to such programs.
Key Points
- Approximately 6,000 title IV-participating institutions face annual certification obligations
- Non-compliant institutions lose all title IV funding for the subsequent fiscal year
- Students at non-compliant institutions lose access to federal financial aid
- Institutions must conduct annual legal review of commercial and academic policies for boycott compliance
- Institutions with existing BDS-related governance resolutions face immediate compliance challenges
Legal Framework
The bill rests on Congress's broad spending power under Article I, Section 8 of the Constitution, which permits Congress to attach conditions to the receipt of federal funds provided those conditions are unambiguous, related to the federal interest in the program, and do not coerce recipients into unconstitutional conduct. The statutory foundation is the Higher Education Act of 1965, which already conditions title IV participation on extensive institutional certifications under §487. The bill incorporates the definitional framework of the Anti-Boycott Act of 2018 to define the prohibited conduct, anchoring the new provision to existing federal anti-boycott law. The designation of Israel as a major strategic partner derives from Public Law 113-296, providing a pre-existing statutory basis for the country-specific application. The bill does not contain explicit preemption language, but its operation as a federal funding condition does not directly preempt state or local laws permitting or requiring boycotts of Israel—it instead conditions federal funding on institutional non-participation regardless of state law. The bill does not include a judicial review provision, leaving challenges to existing administrative law and constitutional litigation frameworks. The Secretary's listing and notification functions under §639(b) are ministerial and do not constitute formal adjudication, limiting procedural due process requirements.
Critical Issues
The bill faces substantial First Amendment challenges. The Supreme Court has recognized that boycotts can constitute protected expressive conduct under NAACP v. Claiborne Hardware Co., and critics will argue that even 'nonexpressive commercial boycotts' as defined here retain expressive dimensions that the government cannot condition federal funding on suppressing. The bill's distinction between expressive and nonexpressive boycotts is legally untested and likely to be contested in litigation, as the line between commercial conduct and political expression in the boycott context is inherently blurry. The coercive effect of conditioning institutional survival on suppressing boycott activity raises concerns under the unconstitutional conditions doctrine, particularly given the existential financial stakes for institutions dependent on title IV funds. The academic freedom implications are significant: the bill's requirement that institutions not unreasonably obstruct academic participation in Israeli programs could conflict with faculty governance decisions, accreditation standards, and institutional autonomy principles. Defining what constitutes 'unreasonable obstruction' creates substantial interpretive uncertainty and potential for inconsistent enforcement. Implementation challenges include monitoring the commercial relationships of large, complex institutions with thousands of vendors and partners, determining when a procurement decision reflects a valid business reason versus a boycott, and adjudicating disputes about whether specific institutional actions constitute prohibited conduct. The bill's application to entities 'organized under the laws of' Israel extends the prohibition beyond the country itself to Israeli companies, raising questions about the scope of covered commercial relationships. Opposition arguments center on academic freedom, institutional autonomy, the chilling effect on legitimate political expression, and the disproportionate impact on institutions with active faculty governance on Middle East policy questions.