Columbia Caves

The "deal" with the Trump Administration is a significant blow to academic freedom and university independence.

Columbia University has agreed to “settle” its dispute with the Trump Administration by paying a $200 million fine and agreeing to make Among many other concessions, Columbia agreed to Columbia University agreed to (1) overhaul its disciplinary process to reduce faculty authority, (2) ban masks on campus, (3) add three dozen security officers authorized to arrest students and others, and (4) appoint a new Senior Vice Provost to oversee academic programs on the Middle East. You can read the whole “settlement” agreement here.

I’m using scare quotes regarding “settlement” because the fact is the University agreed to all these things without any evidence it had violated Title VI, the federal law the Trump Administration has used as a cudgel to shake down universities. Title VI obligates universities that receive federal funds to respond to instances of racial and other discrimination on campus. It has been interpreted to extend to discrimination against Jewish students. Yes, there is anti-Semitism on American campuses, including Columbia’s, just as there is anti-Semitism in American culture - and American political institutions for that matter.

For those who loudly insist on “law and order” and “following the rules,” understand there is a legal process for investigating and sanctioning universities under Title VI. The Trump Administration didn’t pretend to follow that process. It simply asserted a violation and then put a financial gun to the head of the university, terminating a billion dollars in funding based on unproven allegations that Columbia was indifferent to anti-Semitism. Much of that funding, which goes to critical research on diseases and other public goods, has nothing to do with alleged acts of anti-Semitism. The termination of hundreds of millions of dollars in funding for cancer research and other vital programs is wildly disproportionate to the alleged ills the Administration claims it is addressing. The Administration never engaged in anything other than a pro forma investigation of anti-Semitic discrimination at Columbia. It certainly did not come close to proving the University violated Title VI, and it never gave the University a chance to respond to the charges in a real Title VI proceeding. Even if it had followed the law, the threat of loss in this case was unprecedented.

Despite the lawlessness of the Administration’s actions, Columbia, like many law firms and surely like other universities after it, has now decided to enter a “deal” with the Trump Administration. Its president claims that the deal preserves the university’s values. While it may preserve its budget and prevent additional layoffs and cuts, the deal cuts at the heart of the university’s values and mission. Columbia’s concessions include trading away some degree of authority regarding admissions, educational programming, faculty governance, student discipline and speech rights, and other internal operations. To be sure, the agreement states that its provisions do not give the federal government “the authority to dictate faculty hiring, university hiring, admissions decisions or the content of academic speech.” No, but it authorizes continual federal oversight and monitoring of all these matters and many, many more, that traditionally have been the province of the university - all under the threat of future governmental actions. Jawboning a university into altering how it governs, including policies about student discipline, campus protests, security, and viewpoint diversity does indeed undermine the values of the academic community.

Academic freedom, which the Supreme Court has described as a “special concern of the First Amendment,” is designed to protect the independence of universities from just this kind of governmental strong-arming. However, if universities are willing to bargain away their own freedoms - and those of their faculty and students in the process - than what good are these longstanding principles?

Columbia has chosen its course. It seems confident its “deal” will be honored by an Administration that so far has not acted in good faith toward universities, law firms, political opponents, and others. But this will not be the end. “Nothing in this Agreement prohibits the United States from bringing actions against Columbia for future violations of Title VI or Columbia's violations of any other provision of federal law on the same basis it would bring similar actions against other institutions.” That’s cold comfort indeed, since “similar actions” have been based on even flimsier factual records. Paramount and CBS probably thought that “donating” $16 million to Donald Trump’s presidential library to settle an utterly bogus lawsuit would be the end of things. Stephen Colbert might beg to differ. As law firms and broadcast stations have already discovered, there is always a catch. Like Tony Soprano, Donald Trump will honor the agreement with Columbia until he doesn’t.

What Columbia has done will resonate far beyond its own campus. This “deal” will be a template for shaking down other universities and insisting they too must alter their internal operations to satisfy a federal benefactor. Future Republic Administrations, wistful over the power the Trump Administration exercised over “elite” universities, will dust off this playbook.

Yes, there is a time to bargain and compromise. It’s not fair or just that universities should be put to this kind of existential and unlawful choice. But if we’ve learned anything from the first seven months of Trump 2.0, capitulation and acquiescence are not an appropriate response to the Administration’s persistent attacks on civic institutions. It’s not just universities but also the Bar, libraries, and the media that are being leveraged into submission.

Harvard University, so far alone among the institutions of higher learning to stand up to Trump, may decide it can live with the terms of a Columbia “deal.” For the sake of academic freedom, freedom of speech, and our commitment to law and order, let’s hope not.