Reid Setzer EdTrust
This is just the latest attempt to force universities to accept the Trump administration’s point of view on how college and society should work. It’s a clear threat to colleges who do not bend the knee: your research funding will be discontinued; and if you continue to displease us, investigations will be forthcoming and your students’ ability to access essential federal aid is forfeit, regardless of the impact on those students and the country as a whole.
There is a certain efficiency in how the administration is approaching these institutions via the compact and has approached — and successfully extorted — other universities, like Columbia this summer. The Civil Rights Act and other federal laws by which universities are held accountable for alleged violations, require findings of fact, include the right to appeal for the accused, and limit punishments to those that fit the alleged crime. They also generally take time and effort — and yet, these universities have less than a month to take this “bargain” that goes far beyond any remedy to alleged legal misconduct. In essence, the Trump administration want universities to sign over their academic freedom and institutional governance structures all at once — and hold themselves preemptively accountable for hypothetical future misdeeds.
Reviewing the terms of the compact lays bare its illegality and internal incoherence. The admissions process it prescribes would remove any consideration of the personal experience shared by the student should their written statement touch on any category of protected class, their political beliefs, or undefined “proxies.” The ambiguous language is designed to chill consideration of students’ experiences and opinions, despite this practice being authorized by the Supreme Court. These extralegal restrictions would also make it impermissible to deny entry to a student whose stated political views that endorse the legal and physical subordination of people of color or their political opponents through state violence. This is nonsensical and unconstitutional. There are also new data reporting requirements that colleges are unlikely to be able to comply with due to a simple lack of current data collection. The administration has already begun ignoring this reality,via a rushed and incoherent, and likely unlawful, process regarding their order that schools collect and publish new enrollment data.
Furthermore, the universities are instructed to commit to “transforming or abolishing institutional units that purposefully punish, belittle, and even spark violence against conservative ideas.” This is ludicrous. What is an “institutional unit” defined as? And what would constitute it as belittling conservative ideas? Even if it is, how is that not unprotected by the First Amendment? How does one spark violence against an idea, conservative or otherwise?
The document also argues for merit-based faculty hiring but conspicuously leaves off the political views disqualifier that is mandated for students. Despite their opposition to affirmative action and professed commitment to merit, the administration wants universities to hire a quota of conservative faculty, explicitly listed under the lens of “ideological diversity,” whereby every field, department, school, and teaching unit must pass a purity test. How this is squared with the “merit-based” hiring process the compact endorses is left unsaid; nor does it expound on why it would be logical to condition funding for student aid or cutting-edge research to have astronomy professors who have conservative beliefs. In another light, the “ideological diversity” provision would also allow universities to hire a quota of Marxists, of which only 3% of professors identify. But that’s clearly not what the administration is going for.
A section on institutional neutrality would muzzle professors from speaking about societal and political events in their capacity as professors, despite their recognized expertise. Another reading would be they cannot opine on anything of the sort, full stop. Not only is the document unclear, it’s an obvious violation of the First Amendment. This compact lives in a world where someone cannot teach a subject without sharing their personal political beliefs and discriminating against students. It is a world without good faith, nuance, or professionalism.
The compact also requires schools to discriminate based on gender identity, which is unconstitutional per recent Supreme Court precedent; caps the enrollment of international students and requires vetting them to ensure they support “American and Western values;” and require annual renewal by university leadership, subject to revocation and investigation of a school’s failure to adequately discipline themselves and the potential pursuit of legal charges against those individuals for falsely certifying compliance, even unknowingly.
The Columbia University “deal” is an example of the administration’s ideal relationship between themselves and all universities. It requires $221 million in payments over three years; Columbia must bear the cost of a jointly selected representative of the administration, who will ensure the university’s regional studies programs are “comprehensive and balanced,” (i.e., scrubbed of non-approved courses); submit admissions and hiring data that likely will have to show the numbers of non-white students and faculty declining to avoid an investigation into their “illegal DEI” practices; adhere to the administration’s extreme views on gender identity and diversity, equity, and inclusion; screen international applicants for opinions deemed undesirable by the administration; and chill on-campus protests via identification requirements, mask restrictions, and ensuring at least 36 cops with the power to arrest.
Taken individually, any one of these pieces would be problematic, and likely to be subject to a lengthy court proceeding due to their lack of constitutionality and compliance with federal law. For example, the General Education Provisions Act, very clearly prohibits the government from dictating the hiring, admission decisions, or the content of academic speech. A line of Supreme Court Constitutional law jurisprudence, the anti-coercion doctrine, would also be implicated by holding back billions in federal funding for public universities unless adopting the compact terms. But if these provisions are adopted “voluntarily,” they apparently are all just fine and dandy.
It’s also worth noting the incoherency of an administration that ran on “returning education to the states” and eliminating the Department of Education—the same agency that would be responsible for creating possibly hundreds, if not thousands, of “voluntary” agreements; then explicitly charge two different offices within the Department of Education to enforce the dozens of provisions, all taking place at both state-funded and private higher education institutions. It is even more irrational when the Office of Civil Rights, whose staff has already been decimated and is subject to ongoing arbitrary and illegal firings at the time of this writing, would specifically be charged with investigating and enforcing the vast number of agreements.
Even more illogical is the fact that federal research funding, as noted in part above, is supposed to be determined by merit as a part of a legally defined process, not loyalty oaths to conservative policy positions. This is the type of corrupt practice seen in authoritarian states whereby the quality or cost-efficiency of a certain medical research proposal is wholly secondary to whether the person or institution has demonstrated sufficient loyalty to, and/or delivered enough bribes to, the autocratic regime. It erodes the meritocracy that the administration claims they’d like to enforce throughout society and is not compatible with freedom and liberty; it also violates the law.
To be sure, the institutions that have not stood up for their legal rights, and the rights of their students, are worth criticizing. But the administration’s autocratic behavior toward higher education has somehow gone unchecked. Furthermore, no one is considering the current and prospective students of varied races, ethnicities, and religions who are watching as their “dream schools” cave to political pressure, eroding access to the higher education they were promised. Students and faculty, and the diversity of beliefs and backgrounds, should be valued on campus. Those students should have every opportunity available to them at a vaunted institution of higher learning — and those institutions should be staunchly committed to their students’ well-being, freedom and opportunity. That commitment cannot include eliminating courses because the government said so and reversing legal diverse recruitment and support practices. Even setting aside the legality or morality of institutional acquiescence, these agreements can be reversed at any time by a moody and vindictive administration that can deem any institution out of compliance for any reason. Put simply, the compact is forcing college to sell out their students and institutional integrity for an unenforceable, unpredictable future promise of federal research dollars. A classic Faustian bargain; but at least Faust got 24 years of magical knowledge out of selling his soul. Every college offered this “deal” should follow M.I.T.’s lead and wholly reject this compact — before America’s higher education system is irrevocably upended and students across America sacrificed in the bargain.
_______
Reid Setzer is director of government affairs at EdTrust
