By Erwin Chemerinsky
President Trump’s cutoff of funds to universities, such as Columbia and Harvard, is blatantly illegal and unconstitutional. Although it purportedly is about the failure of the universities to adequately address antisemitism on their campuses, that is a pretext being used to attack elite educational institutions. It is following the playbook of authoritarian rulers in other countries and attempting, in the words of Christoper Rufo who is advising President Trump, to cause universities to “feel existential terror” and put them in “recession.”
It began with President Trump announcing that the federal government was cutting off $400 million of funding to Columbia. Then there was the announcement of the University of Pennsylvania losing $175 million because several years ago it allowed a transgender woman on its swim team. This was followed by the Trump administration announcing that it was cutting off $2 billion of funds to Harvard unless it agreed to federal oversight of its admissions, faculty hiring, and governance. Subsequently, Secretary of Education Linda McMahon announced that the United States government would give no more grants to Harvard. Other universities, including Princeton, Cornell, and Northwestern, also have been subjected to fund cutoffs. Many other schools, including mine, are on lists of those under investigation which could lead to terminating federal monies.
The primary justification given by the Trump administration is that these institutions have violated Title VI of the Civil Rights Act of 1964, which requires that recipients of federal funds not discriminate based on race and ethnicity. The claim is that they have tolerated a hostile environment to Jewish students in violation of Title VI.
But Title VI and the Constitution impose many requirements that have been completely ignored by the Trump administration. First, federal law requires that before a cutoff of funds, there must be “an express finding on the record, after opportunity for hearing,” of any failure to comply with the statute, as well as “a full written report” submitted to House and Senate committees at least 30 days before the cutoff takes effect. This obviously has not been done for any of the universities.
Indeed, the Constitution requires that there be due process – notice, a hearing, findings of fact – when government benefits are withdrawn. None has been provided.
Second, a university is liable only if it is found to be “deliberately indifferent” to the hostile environment. Although universities certainly could have done better in dealing with antisemitism on their campuses, it would be difficult to say they were deliberately indifferent. Some believe that Columbia was too aggressive in responding to pro-Palestinian demonstrations. Moreover, universities cannot be punished for allowing speech that is protected by the First Amendment.
Third, a university must be given the opportunity to correct the problem and if it fails, Title VI requires any cutoff of funds be “limited in its effect to the particular program, or part thereof, in which noncompliance has been so found.” The Trump administration has broadly cut off funds to these universities, including for programs for scientific and medical research, that are not implicated in the pro-Palestinian protests in any way.
The Trump administration has simply totally ignored the law in its effort to punish and intimidate universities. Columbia capitulated and agreed to a settlement, but still has not seen any resumption of the lost federal funds. Harvard, by contrast, chose to litigate and filed a suit, which is now pending, in federal district court in Boston.
The Trump administration’s letter to Harvard left it no choice but to fight back. The demands were ones that no university could accept. They included changes in how the university is governed, including “reducing the power held by students and untenured faculty; reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship.”
It required changes in faculty hiring and student admissions, including mandating “viewpoint diversity in admissions and hiring.” This included that Harvard “shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse.” The letter states, “Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity.”
Although viewpoint diversity, like all efforts at diversity, is laudable, the government requiring that faculty be hired or students be admitted based on their views, clearly violates the First Amendment. It also would give the federal government astounding control over critical aspects of the university that are legally protected by the First Amendment and seriously compromise – if not destroy entirely – bedrock principles of academic freedom. The demand letter from the Trump administration also requires the elimination of DEI programs, a new system of student discipline, and directs the punishment of students who had participated in particular demonstrations.
Virtually none of this is about alleged antisemitism on campus. It is about the Trump administration using the enormous power of the federal government to try and devastate one of the most prestigious universities in the country. It is to send a message to all other schools about what they face if they do not cower to what Trump wants.
To be clear, there never has been anything like this in the United States. In the McCarthy era, there was pressure on universities to identify and fire faculty who were thought to be communists. Many careers and lives were ruined. Academic freedom suffered greatly. But there was not then, or ever before now, the systematic effort to control and to harm universities.
The response must be loud and widespread; it must condemn what the Trump administration is doing to higher education. Although there are certainly flaws and problems, the United States has the greatest university system in the world. Donald Trump must not be allowed to destroy it. Congress must speak emphatically against this. Courts must stop the illegal acts.
And all universities must fight back as Harvard has done. We all learned long ago on the playground that giving into a bully only makes things worse. If every targeted school fights back, the assault on higher education can be stopped.
