Compacts, Credentials, and Capitulation
Some institutions are standing up to the Trump Administration to preserve their autonomy and First Amendment freedoms. What are the implications of this new resistance?
During Trump 2.0 many law firms, universities, broadcasters, and corporations have caved and capitulated in the face of threats to First Amendment and academic freedoms. Confronted with abuses of executive power, prominent law firms, universities, and broadcasters blinked and entered into one-sided “deals.” Universities agreed to pay massive fines and undermined their institutional autonomy, law firms committed to perform pro bono and other work on behalf of the President, and broadcasters settled meritless lawsuits and allowed the administration to chip away at their editorial rights. These institutions have been widely and, I think, on balance justifiably, criticized for their obeisance.
Not all institutions blinked. Some law firms and Harvard University filed lawsuits. Lately there have been some additional signs of resistance. Presented with a “compact” under which they would have to forfeit significant aspects of their institutional autonomy in exchange for preferential treatment from the executive branch, nearly all invited universities politely declined. At the same time, the Pentagon press corps rejected new restrictions on newsgathering relating to national defense and security.
These signs of budding resistance are encouraging. However, for several reasons, we ought to temper expectations.
The Compact
The Trump Administration recently sent nine universities a document entitled “Compact for Academic Excellence in Higher Education.” Although the administration has said it is open to feedback and discussion about the Compact’s terms, the Secretary of Education indicated it was essentially in its “final form.” Among other things, the proposed Compact offered “benefits,” including access to research funding and preferential treatment under the federal tax code, if universities agreed to do the following:
“Revise governance structures” to ensure viewpoint diversity on campus, including among faculty in all departments.
Agree to institutional neutrality for all of the university’s academic units, “including all colleges, faculties, schools, departments, programs, centers and institutes,” which means all units must refrain “from actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university.”
Shut down departments that “punish, belittle” or “spark violence against conservative [but not other] ideas.”
“Screen out [foreign] students who demonstrate hostility to the United States, its allies, or its values.”
“Commit to defining and otherwise interpreting ‘male,’ ‘female,’ ‘woman,’ and ‘man’ according to reproductive function and biological processes.”
There is a lot more in the Compact, including limits on the admission of international students, tuition freezes, and a commitment to standardized testing.
For any university to agree to these conditions would amount to a surrender of its institutional autonomy. Academic freedom includes, at a minimum, the right of universities to decide whom to admit, whom to hire, and what students will study. The Compact yields these and other fundamental functions to the federal government in exchange for “benefits.”
Of the nine universities to which the Compact was initially tendered, seven unequivocally, but politely, declined to become the federal government’s friend with special benefits. Leaders at MIT, Brown, U.S.C., University of Pennsylvania, Dartmouth College, University of Virginia, and University of Arizona all rejected the “Compact” as inconsistent with their core values - including making decisions based on merit. Four other universities have since issued public statements indicating that they would reject the Compact.
Washington University sent a more mixed message, and Vanderbilt University committed only to offering feedback on the proposal. The University of Texas at Austin, through the chairman of the university system’s board, expressed some interest in the Compact.
The rejections are based, as one would expect, on institutional autonomy, academic freedom, and freedom of speech principles. As the University of Arizona’s President wrote in an open letter responding to the terms of the Compact, “Principles like academic freedom, merit-based research funding and institutional independence are foundational and must be preserved.”
For the first time since Trump unveiled his plan to overhaul American universities, the targets of the roadmap have (mostly) spoken in unison to defend their institutional autonomy. In contrast, Harvard University stands alone in its effort to challenge the Trump administration’s effort to coerce the institutional to bend by terminating all of its federal funding.
The Pentagon and the Press
Meanwhile, another institution - the press - was being offered its own compact. The Department of Defense (War) recently issued new rules that conditioned reporters’ access to the Pentagon on their signing an agreement not to gather or use any information that had not been formally authorized for release, or risk losing their credential to cover the military. According to the rules, “information must be approved for public release by an appropriate authorizing official before it is released, even if it is unclassified.” The new rules also restricted reporters’ access to large areas of the Pentagon without an official escort.
After the Pentagon press corps objected, the Defense Department clarified that members of the news media would not be required to submit their writings to the Department prior to publication, but they could be deemed “security risks” and have their credentials revoked if they solicited or obtained certain information from Pentagon sources they were not entitled to access.
Criticism of the new policy from the institutional press was swift. In a statement, the National Press Club called the policy “a direct assault on independent journalism” and called for it to be immediately rescinded. One concern was that at a time when the administration’s actions, including killing alleged drug traffickers, were under scrutiny the restrictions could significantly restrict the free flow of information about Defense policies and actions.
The Washington Post, New York Times, Newsmax and CNN all refused to sign the agreement, as did many other media orgainizations. Only One America News, a right-wing outlet, agreed to sign. In a statement, the Washington Post’s executive editor said:
The proposed restrictions undercut First Amendment protections by placing unnecessary constraints on gathering and publishing information. We will continue to vigorously and fairly report on the policies and positions of the Pentagon and officials across the government.
Members of the Pentagon press corps, which consists of around 90 reporters, turned in their credentials rather than sign the agreement. In a show of defiance, thirty of them walked out of the Pentagon together.
The End of Capitulation?
As I said, let’s give credit where it is due. Universities and members of the press stood up to the administration, They did not agree to compacts or agreements they believed infringed on their core institutional values and rights. This defiance is something we have seen far too little of in the first ten months of Trump 2.0.
But we should not get too far ahead of ourselves in concluding these demonstrations of resistance have turned the tide. As many universities were rejecting the Compact, the University of Virginia was entering a deal with the Trump administration concerning the use of race and other characteristics in admissions. Brown University, the University of Pennsylvania, and other universities have also entered deals in the hope that it would save them from further menacing by the administration. Reports have even suggested that Harvard University, thus far a class-of-one in terms of resistance in higher education, may be open to doing the same.
Note that Brown and Penn were presented with a new set of demands in the Compact, which demonstrates that entering one deal with only open a university up to future “negotiations” over new terms. This shows that the Trump administration will not simply go quietly into the night because a few elite universities stood their ground and rejected a proposal to waive their institutional autonomy. In fact, after Penn announced that it would not sign the Compact, a White House spokeswoman said that “any higher education institution unwilling to assume accountability and confront these overdue and necessary reforms will find itself without future government and taxpayers support.”
While even a hint of university resistance to the administration’s agenda is welcome, the Trump 2.0 stress test for these and other institutions is far from over. Having said a polite “no” to the Compact or waffling on an answer, universities will likely face more coercive tests in the future. The administration has hinted that it will present the Compact, in some form, to many other universities. Some of them will likely want to sign on, if only to demonstrate fealty to the administration. Maintaining a uniform resistance will be very difficult, particularly given the “benefits” the administration is dangling.
As for the institutional press and media, we have already seen many shameful acts of capitulation to the Trump administration’s agenda. The Pentagon press corps is small, but it demonstrated a united front in its rejection of the Defense Department’s new restrictions on reporting. Reporters who tendered their credentials had the backing of their employers, who for once decided it was worth resisting the administration.
As readers likely know, Donald Trump has long been at war with the institutional press and individual reporters. He has sued newspapers and broadcasters, excluded news outlets from events based on their coverage, and suggested that news outlets should be punished for negative coverage of his presidency. He has long maintained that the press is “the enemy of the American people” and continues to vilify reporters who ask questions he does not like or does not know the answer to. The campaign against the institutional press will not end with the departure of a relatively small number of Pentagon reporters. Will reporters, news outlets and broadcasters have the courage to resist future acts of coercion?
The form of resistance also matters. Walking out of the Pentagon was a show of defiance. But suing the Defense Department for imposing the new restrictions would be a far more effective form of resistance. One might even see exiting the Pentagon and surrendering credentials as a form of capitulation. Rather than forcing the administration to defend restrictions the press claims amount to prior restraints on speech, they walked out.
There are significant costs associated with this strategic choice. When they exited the Pentagon, reporters left behind decades of experience in covering national defense and security matters. To be sure, they will still be able to publish stories about the Defense Department and military exercises. But they will no longer have physical access to sources or locations that has been vitally important to reporting.
More troubling is who will replace these journalists. After the walkout, the Defense Department quickly announced that a “new generation” of journalists would be given access to the Pentagon once they signed the new restrictions. Among this “new generation” is LindellTV, an online streaming site operated by Mike Lindell. Lindell, as readers likely know, is an outspoken supporter of President Trump and a prominent proponent of bogus election fraud conspiracies. In the end, the Defense Department will install reporters and outlets that will gladly peddle misinformation and otherwise do the administration’s bidding. One doubts LindellTV reporters will be asking many pointed questions, if any at all, about the administration’s reliance on targeting killing rather than interdiction in narcotics operations.
Suing to enforce press rights, or university rights for that matter, is more time- and resource-consuming than issuing public statements or walking off the job. Further, litigation is no panacea. It takes time and the result is not guaranteed. However, if we have learned one thing during Trump 2.0, it is that polite declinations and walk-outs will not be enough to deter the administration from targeting institutions further. Weak forms of resistance are better than no resistance at all. But given what they are up against, American institutions should be prepared to devote whatever resources it takes to fight for their autonomy and rights.