MSU’s Big Ten peer, The Ohio State University, on the other hand, was able to cite Ohio’s "Anti-Boycott, Divestment and Sanctions" law directly, following a series of divestment-related campus protests in April where several were arrested. 

"Ohio Revised Code Section 9.76 prohibits the university from divesting any interests in Israel and prohibits adopting or adhering to a policy that requires divestment from Israel or with persons or entities associated with it," a university spokesperson said at the time. (OSU’s justification was corroborated soon after by a spokesperson for Ohio’s attorney general, who told The Columbus Dispatch that the university would, in fact, be in violation of the law if it were to divest.)

Michigan passed its own version of that law in 2017, under former Republican Gov. Rick Snyder. But experts tell The State News the law’s precise language, compounded with a unique provision in the state’s constitution granting public universities autonomy over their investments, means MSU would likely be within its legal right to divest, if it wanted to.

Still, the exact implications that Michigan’s Anti-BDS law would have on divestment are murky; one observer argues the law could provide grounds for the state government to cut its funding to MSU if it divested.

In August, a group of 24 Republican state attorneys general sent a letter to Brown University threatening "profound legal consequences" if it were to adopt a divestment resolution, citing Anti-BDS laws in their states. (That specific threat has been largely disregarded by divestment advocates who have called it "baseless.")

But the political predicament in Michigan appears to be more precarious. Reached by The State News, a spokesperson for Michigan’s attorney general declined to comment on how, if at all, Michigan’s Anti-BDS law would be applied to the state’s public universities. 

For its part, MSU officials told The State News earlier this month that the state’s Anti-BDS law had not factored into any decisions regarding the university’s investments. 

A definitional discrepancy

The Anti-BDS law in question is a 2017 amendment to the state’s Management and Budget Act, and specifically governs the procurement and financial processes of "state agencies."

But Mia Murphy, the chief policy officer at the Michigan Association of State Universities, says public universities don’t typically fit under the definition of "state agencies" under Michigan law. 

In fact, Michigan’s Anti-BDS law specifically lays out that state agencies do "not include an institution of higher education."

"I would not expect (Michigan universities) to be covered under this section of the (Management and Budget Act)," Murphy said in a statement to The State News. 

By contrast, Ohio amended its Anti-BDS law in 2022 to specifically bring higher education institutions under the definition of state agencies, thus making them a clearer target of the state’s legislation. Furthermore, a spokesperson for Ohio’s attorney general said in a Columbus Dispatch report from April that Ohio’s Anti-BDS law would, in fact, apply to universities if they were to divest. 

Danny Wimmer, a spokesperson for Michigan’s attorney general’s office, declined to comment on the effect Michigan’s Anti-BDS law would have on universities if they were to divest, saying there would be "little upon which to base" such a comment.

"We are not aware that our department has ever invoked this law in a case, and to my knowledge this law has never been enforced in any case in the State," Wimmer said in an email to The State News. 

State funding

While Michigan’s Anti-BDS law would not seem to legally prevent MSU from divesting, one observer suggests it might provide grounds for the state government to withhold funding to MSU if it were to divest. (MSU receives both a state constitutionally mandated appropriation from the state government used to cover operating expenses, as well as a smaller allotment of discretionary funding for various initiatives). 

The observer is Adam Gjesdal, a fellow at the Heterodox Academy, which is a nonprofit thinktank advocating viewpoint diversity on college campuses. He has argued that divestment, particularly at public universities, could hinder state funding, thus necessitating tuition hikes to cover the shortfall. 

Specifically, Michigan’s Anti-BDS law says state agencies may not "enter into a contract" with any organization "to acquire or dispose of supplies, services, or information technology," unless the contract stipulates that said organization is not engaged in any BDS efforts against Israel. (The law says organizations subject to the law include corporations, trusts, and "any other nongovernmental entity," but does not single out public universities.)

In simpler terms, the law says the state government may not do business with organizations that are actively engaged in BDS efforts.     

Gjesdal argues that means that if a public university in Michigan were to divest from Israel, the state government would no longer be within its legal right to provide funding to the university. 

A Michigan public university "can divest from Israel, but it would still face consequences," Gjesdal said in an email to The State News. 

During media availability after a Sept. 6 board meeting, MSU board Chair Dan Kelly said the potential implications on state funding if MSU were to divest from Israel had not come up in any conversations about MSU’s endowment. 

"That has not come up in any of our conversations with the board, and if that’s the case, this is the first I’ve heard of it," Kelly said. 

President Kevin Guskiewicz added he was aware, though, that Anti-BDS laws’ potential implications on state funding had "come into play" at other universities. 

Constitutional autonomy

Experts say Michigan’s public universities have historically had a relatively high degree of autonomy over their endowments in comparison to other states. 

Dwayne Wright, a professor at George Washington University who researches higher education law, says that’s because of a unique provision in Michigan’s constitution, granting "constitutional autonomy" to the state’s public universities. 

That clause provides that each board of Michigan’s public universities "shall have the general supervision of its institution and the control and direction of all expenditures from the institution funds."

Wright said he believes that clause would make it difficult for the government to legally withhold its state appropriation from MSU if it were to divest. 

"I do think that this sort of setup … is rather unique and makes this situation unique," Wright said in an interview with The State News. 

Aside from the state appropriation, though, Wright said some state legislators may be inclined to cut discretionary spending to MSU if it were to divest. 

Murphy, the chief policy officer at the Michigan Association of State Universities, points to a specific case that established legal precedent for Michigan public universities being shielded from government regulation of their investments. 

That case was the University of Michigan’s 1982 challenge of a law recently passed by the Michigan legislature requiring universities to divest from the Soviet Union and apartheid South Africa. 

Though a circuit court initially sided with the state legislature, a court of appeals later reversed the decision, arguing forced divestment was a violation of UM’s constitutionally-mandated autonomy. 

Murphy says that precedent is a positive one. 

"It’s important for university governing boards to be independent from potential state political interference, including in administering endowment funds," Murphy said in an email to The State News. "You could imagine how different political factions, if in power, might be interested in mandating university divestment in many different things that would suit their political base."

A moot point?

But student activist for divestment Jesse Estrada White tells The State News that, for him, what the law does, and doesn’t, say about MSU’s investments is mostly moot. 

In fact, he said the relative autonomy MSU appears to have over its investment decisions doesn’t provide a substantial reason for optimism that MSU might actually divest, or make it uniquely positioned to do so.  

"I don’t think any of these universities' main problem with divestment is a legal challenge to it," he said. 

While Estrada White said he does believe there are legitimate legal reasons why some institutions in some states can’t divest, he thinks those reasons are often employed as an excuse not to do something universities wouldn’t consider doing anyway.

The true reasons why MSU, and other universities, don’t want to divest from Israel are "material" and "ideological" ones, Estrada White said. It’s because universities have come to see themselves as, first and foremost, participants in, and protectors of, the free market. 

"We’ve seen this total neoliberal process take place in the university where humanities programs are being cut, more funding is put into things that would — heavy air quotes —  'benefit the economy,' like finance and supply chain management," Estrada White said. "The clear shift in the university is one that looks at the free market as a natural phenomenon that needs to be protected."

"That’s why we pay tens of thousands of dollars to go here instead of it being subsidized by the state … that’s why the endowments have grown."