US News and World Report just published an op ed I coauthored with four other legal scholars entitled “Colleges Must Reject Trump’s ‘Compact’ To Protect Our Democracy.” The four other authors are Rick Garnett (Notre Dame), Serena Mayeri (University of Pennsylvania), Amanda Shanor (University of Pennsylvania), and Alexander “Sasha” Volokh (Emory, also my co-blogger here at the Volokh Conspiracy).
To put it mildly, the five of us have widely divergent views on political and legal issues. Serena Mayeri and Amanda Shanor are prominent progressive constitutional law scholars. Rick Garnett is a leading conservative constitutional law and law and religion specialist. Sasha Volokh and I are libertarians (him perhaps somewhat more radical than me).
But we all agree colleges should reject the “compact” for both constitutional and other reasons. Here’s an excerpt from the article:
We teach law at four different U.S. universities and come from a range of political and legal perspectives. But we all agree that universities should vehemently and unanimously reject the Trump administration’s “Compact for Academic Excellence in Higher Education.”
The federal Department of Education first sent this compact to nine universities in October, stating that signatories would receive preferential consideration for federal grants. The compact itself conditions benefits such as federal contracts, tax-exempt status, student loans and student visas on the adoption of various government prescriptions for admissions, hiring, tuition, curriculum, discipline, international student enrollment, grading and free speech….
Universities that have balked at – or outright rejected – the compact are correct to do so. The administration’s proposal contains five fundamental causes for alarm:
First, the compact tramples upon the constitutional rights that allow us to debate and disagree without fearing reprisals from our universities or from the government….
Second, the compact amounts to a federal takeover of private institutions and state entities. It threatens to withdraw federal benefits from any university that does not submit to the federal government’s demands. Such imposed ideological uniformity would undermine the competition that spurs innovation and empowers students and faculty to “vote with their feet” for the schools that best meet their needs.
Moreover, the compact’s approach to federal funding is unlawful and unconstitutional: Conditions on federal grants to state governments, including state universities, must be clearly stated in advance, related to the funds’ purposes and not unduly coercive….
Third, the compact violates the constitutional separation of powers. Under the Constitution, Congress, not the executive, wields the power of the purse. An executive agency – here, the Department of Education – cannot withhold funds or place new conditions on monies Congress has allocated without clear and explicit legislative authorization….
Fourth, the compact places universities in a dangerous financial position, facing draconian penalties without due process – or any process at all. The compact authorizes the government and private donors to claw back federal dollars whenever federal officials are displeased with a university’s actions. Signatories to this agreement would forfeit their autonomy and the fundamental freedoms of their community members….
Finally, the compact is riddled with internal inconsistencies that render it both incoherent and dangerous. The agreement claims to value “merit” in higher education, but offers preferential consideration for federal grant money based on universities’ adherence to government-mandated ideology rather than scientific excellence. It prohibits discrimination based on “political ideology” while requiring special protection for “conservative ideas,” and exclusion of foreign students based on their speech and political views.
Some of the issues raised in the US News article are addressed more fully in my forthcoming book chapter, “How Speech-Based Immigration Restrictions Threaten Academic Freedom,” Academic Freedom in the Era of Trump, Lee Bollinger and Geoffrey Stone, eds. (Oxford University Press, forthcoming). Ideological and speech restrictions on foreign students are a major element of Trump’s Compact.
As we note in the US News article, many prominent schools have already rejected the Compact, including eight of the nine to whom it was initially offered. But a few less well-known institutions have expressed willingness to join it. We hope no more do so.
For those keeping score, I have, in the past, extensively criticized constitutionally dubious higher education policies advanced by Democratic administrations, such as racial preferences in admissions and Biden’s massive (and illegal) student loan forgiveness program.