On September 25, Ross Douthat of The New York Times interviewed May Mailman on his podcast, Interesting Times. Ms. Mailman is a Senior Policy Strategist in the White House. She is the point person behind the Trump Administration’s executive actions against Harvard University, Columbia University, and many other public and private universities. Since Ms. Mailman is the chief architect of this campaign, she can speak directly to its purposes and the administration’s end goals.
I’ve carefully reviewed the transcript. Let me begin with some general impressions and then address Ms. Mailman’s responses to Mr. Douthat’s questions.
First, as Ms. Mailman seems to concede, elite and other universities did not shift leftward owing to any previous “grand strategy” by government to tilt them in that direction. The influences in that respect are diverse and complex, but they are not generally related to official edits as to who would be admitted, who may teach, and what “liberal” content should be taught. The Trump Administration is trying to use the power of the federal government to produce a cultural shift, not a reversal of legal policies. Academic freedom and free expression exist primarily to prevent official interference or control over the culture of institutions, including universities.
Second, I found it noteworthy - and troubling - that there is scant consideration in this interview of academic freedom or the First Amendment. The elision is telling. The administration’s goals are to use federal funding and other regulatory power as leverage to influence who is admitted to study, who will teach, and what substantive programs and research are worthy of the modern university. These are three core concerns of academic freedom. What’s more, the discussion suggests that the Trump Administration wants to alter the ideological culture on university campuses. That goal runs headlong into academic freedom and First Amendment concerns.
Third, based on the interview it struck me that, Ms. Mailman’s occasional protestations notwithstanding, the “grand strategy” is to make the federal government the arbiter of what the modern university ought to be and do. To his credit, Mr. Douthat at times expressed skepticism about the government’s power to implement that strategy.
In the end, the “grand strategy” appears to be to use or abuse the threat of termination of federal funding to change the way universities think and operate. As noted, that strategy is incompatible with longstanding principles of academic freedom and the First Amendment. So far, as least, lower courts have consistently sided with these principles and rejected the “grand strategy.” Whether that situation will change as courts of appeal, perhaps including the Supreme Court, weigh in remains to be seen.
Anyway, these are my top-level takeaways. The interview was long, but I think critically important in terms of better understanding the Trump Administration’s goals regarding American universities. Below I have organized and excerpted the transcript to highlight some of the most significant exchanges bearing on academic freedom and the First Amendment rights of universities, faculty, and students. I enter the conversation in the form of block quote responses to some of the exchanges.
Pushing Cultural Institutions to the Right
As a matter of framing, Mr. Douthat couched the Trump Administration’s campaign regarding universities as one aimed at “changing institutions.”
Douthat: . . . But I really think that you need to understand the conservative cultural strategy much more in terms of institutions than celebrity individuals.
Long before the Charlie Kirk assassination, the Trump White House saw a once-in-a-generation opportunity to try to push America’s cultural institutions, movie studios and TV networks meaningfully to the right.
This week I want to talk about the most significant of these efforts, more important even than the late-night-TV wars. That effort is the administration’s attempt to change elite academia — the way big universities admit students, hire faculty members, handle free-speech debates and much more. My guest, May Mailman, is the perfect person to discuss the Trump administration’s strategy because she’s been in charge of it.
TZ: “Changing” institutions including the press and academic raises significant First Amendment red flags. The institutions have rights. Using the government’s power to push universities “meaningfully to the right” in terms of admissions, hiring, and speech also conflicts with fundamental principles of academic freedom.
What’s Wrong With Universities?
The “Glorification of Victimhood”
Douthat: So I want to start with a big picture question. Tell me: What is wrong with the American university?
Mailman: I don’t think it’s every university, but I would say the biggest one that comes for me is a culture of victimhood — a glorification of victimhood — that is ultimately bad for Western civilization and bad for the country. . . .
And then pieces of it trickle down to racism in admissions, racism in hiring. You’re hiring people to do things based on their identity rather than their ability. But I think, at the end of the day, it all boils down to a glorification of victimhood.
TZ: Ms. Mailman’s comments echo familiar and longstanding criticisms that university students (on the left) are essentially coddled snowflakes and universities are “woke.” When racist comments were directed at Black students, the right insisted that was the price of “free speech” and admonished universities not to regulate derogatory speech on campus. The administration’s efforts to sanction universities for not addressing the concerns of Jewish students are apparently not “glorifying victimhood” but rather ensuring educational opportunities are available to all. It’s also rather rich to hear this administration accusing universities and their students of adopting a culture of victimhood, while at the same time whining about “rigged” elections, “witch hunts,” and discrimination against religion and conservatism.
Universities Are “Too Liberal”
Douthat: But one thing that’s striking about the argument about universities is one that’s been going on since William F. Buckley emerged on the political scene and wrote “God and Man at Yale”: the conservative argument that campuses are too liberal, too ideologically conformist, that they reward victimhood over merit, that they use affirmative action in discriminatory ways. These are arguments that are decades and decades old, but there’s a clear sense, both among conservatives and some liberals, that something substantially changed in the middle of the 2010s that took all of these existing things that conservatives complained about and just made them much worse. It seems like that’s what you think. I’m curious why you think that happened and how much worse it got.
Mailman: Yeah. The why — and maybe everyone was already this liberal. Smarter people than me have blamed social media and the iPhone — you found your community in Facebook groups over campus groups, and you were able to retreat and hold your positions more closely — and I buy into that.
TZ: Even if there are “too many” liberal-minded students and faculty on campus. what power does the federal government have to change that? In any event, if the Trump Administration believes the IPhone and social media created liberal imbalance on campus, how does regulating admissions, classroom pedagogy, and other aspects of university operations solve the problem?
“Protest Culture”
Douthat: And what about protest culture? You clearly had in the mid-2010s the rise of a general new atmosphere of protest culture on campuses. And part of the argument from the Trump administration has been that this led to a culture of overt physical intimidation — for Jewish students, in particular, when the protests were around issues related to Israel and Gaza and so on. But I think, generally, that protests became a means of intimidating speech.
TZ: For starters, protests are a longstanding form or means of expression, not a “means of intimidating speech.” While it’s true that some students shouted down speakers and occupied buildings during recent protests, most campus protests were peaceful. Again, that speech is “intimidating” or uncomfortable to certain students does not remove it from First Amendment protection (for public universities) or inclusion within campus free expression (for private ones). As Mr. Douthat must know, “protest culture” has been alive on campuses since at least the 1950s. It is true that some protests over the past half century were disruptive and maybe even intimidating to some, the federal government never used that as a pretext to clamp down on campus activism.
Mailman: So I somewhat attribute the rise of this protest culture, which I will agree did occur around then, to the same underlying cause that I just mentioned, of people retreating online. As people get lonelier, they want to find groups. So the George Floyd protests, when everybody was locked down and no one could do anything and you couldn’t see anything, and here’s this community. I mean, it was a community. It’s your buddies, it’s your friends, and I can’t actually fault that feeling — that’s a very human feeling that you want to be a part of. And especially if you lose a friend group and you lose some of the things that you otherwise would’ve done, then yeah, protests seem very attractive.
TZ: Ms. Mailman speaks as if social isolation and alienation are new phenomena. But people have been “bowling alone” for many decades. Still, many found affinity groups without the internet. The fact that students and others managed to communicate and organize online seems like a positive thing, as even Ms. Mailman seems to concede.
Responses to “Antisemitic Violence”
Douthat: What you’re describing is a cultural shift. How is it the responsibility, or to what extent is it the responsibility, of universities as institutions to have some kind of reaction? It’s not the university’s fault that all their students were on iPhones, and it’s not the university’s fault that students started protesting. What did the institutions themselves, in your view, do wrong in response to this shift toward political conformism, protest culture and so on?
TZ: I agree with Mr. Douthat that what Ms. Mailman has described are cultural phenomena. But that is what the administration wants to change, in a broad sense. It wants students to be exposed to “acceptable” ideas and to stop protesting.
Mailman: I think the universities were too late on just basic safety issues. So let’s just take the post-Oct. 7 antisemitic violent episodes breaking out across college campuses. If you’re letting tent cities fester on your campus — and we’ve heard a lot from Harvard specifically, that they were concerned about shutting some of those down or citing students, because you can’t just say, “Hey, leave.” The students aren’t going to leave.
TZ: First, movement conservatives had “reforming” universities on their radar long before October 7, 2023. Linda McMahon, the Secretary of Education, acknowledged this publicly when she said what the Trump Administration is doing regarding universities is something “conservatives” have been calling for over time. The administration has been using protests concerning Gaza as a pretext to attack “elite” universities.” It has no evidence that “basic safety” was substantially impaired on American campuses. Tellingly, Ms. Mailman also seems to falsely equate all tent cities with “antisemitic violent episodes.” The administration has never bothered to conduct Title VI civil rights investigations that satisfy federal law. As for the speed with which universities responded to Gaza-related protests, many immediately called in law enforcement to arrest and remove students who had erected tent displays. More than 3,000 students were arrested, and some were injured in the process. Some, like Indiana University, even posted snipers on buildings just in case students did not abandon their tents. A relatively small fraction of all universities had significant protest activities. The narrative that most universities did nothing in response to student protests is false. ]
There has to be “Leave, or I’m going to suspend you” or “I’m going to write you up” or “There’s going to be some consequences here.” But if you’ve got a bunch of international students and such a thing might threaten their visa, then you’re not going to do that.
TZ: Again, many universities did take actions against and sanction students. The crackdown could have been more severe, and the administration has made it clear that it wants to direct how swiftly and harshly universities discipline students for protest-related violations. Normally that is something universities decide for themselves, as an academic community. The bit about international students is an obvious red herring. There is no evidence that "international students” were significantly involved in campus protests, much less that they frequently broke campus free speech rules. Nor is there evidence that universities failed to discipline international students to preserve their legal status. For all the administration’s insistence that international students posed a threat to campus safety and foreign policy, it singled out fewer than 20 lawfully resident students for arrest and detention. Those students were targeted regardless of whether they complied with university free speech policies.
The “Grand Strategy”
Prohibiting “DEI” in Admissions and Hiring
Douthat: Now let’s talk about what the Trump administration is trying to do about it.
Mailman: Yeah, there is an executive order that discusses universities. Specifically, Title VI says that for any federally funded educational institution, they can’t discriminate on the basis of race or national origin. This has been used both on the antisemitism front, which is national origin and race, and then also on what people broadly describe as the D.E.I. front. And so if you’re going to be federally funded, then we’re going to make sure that you don’t discriminate on the basis of race.
TZ: The Trump Administration is authorized to enforce Title VI to prevent various forms of discriminatory conduct. It has taken a broad and aggressive view concerning regarding what constitutes race discrimination in admissions and other contexts. It has even suggested that teaching certain subjects or positions regarding race or gender violates federal law. No executive order or policy document defines “DEI.” That makes it difficult for universities to comply, and easy for the administration to claim they are out of compliance.
“Defunding” Universities Based on Principles of “Good” Education
Douthat: I mean, also, the federal government doesn’t actually have the power to shut down Harvard University.
Mailman: No, but in theory —
Douthat: But you can defund Harvard.
Mailman: Right.
TZ: Well, you can “defund Harvard” if you follow federal law. That part often gets left out when you talk to Trump Administration officials. The executive operates under certain constraints with regard to the termination or withdrawal of funding. The pretense that it doesn’t is both wrong and dangerous.
Douthat: So what are schools supposed to do to prove to the Trump administration that they are being good examples for the rest of higher education?
Mailman: We actually do plan to have a formal way that universities can say, “We’re doing the right things.” The Trump administration does not want to be all Whac-a-Mole or all negative, but these are the principles that universities and the Trump administration and, frankly, private donors can ascribe to to say, “This makes a great university.” Those have not been public yet, but they will be public, and I think we’re going to have a lot of great universities signing up as the forerunners and saying, “We affirm these things.”
But nothing will be shocking. It will be things like merit-based admissions, merit-based hiring. We’d also like to see some attention to the cost of admissions. Things that are going to just very directly benefit students.
Limiting or Excluding Foreign Students
Some look at what your foreign student base looks like — are you importing radicalism? And how are you assessing that? So a commitment to cleaning that up. Foreign funding —
TZ: This sounds pretty innocuous, but if you read the letter the administration sent to Harvard it contains a long list of “demands” that go well beyond “merit-based admissions” and “merit-based hiring.” The devil is in the details, and there are a lot of details the administration probably will not put in its “principles.” “Importing radicalism” also gives the game away. What is “radical” when it comes to student speech? Is it “radical” to say anything negative about the U.S. government? About Charlie Kirk? How are universities supposed to “assess” whether foreign students are engaged in “radical” activities? Is there any concern about how that would affect the university’s relationship with its students or the campus culture?
Douthat: Is that primarily about the ideology of students admitted, or is it a problem with the numbers? Like, does the Trump administration have a problem with how many foreign students are at elite universities?
Mailman: I think there’s a fairness issue that the president has talked about with the numbers. These are universities that have huge amounts of federal funding and are supposed to serve American students, and instead they’ve taken on — I think Columbia’s numbers were roughly 50 percent. Harvard’s are around 30 percent foreign students. And that’s not to say anything bad about foreign students. It’s about: What are the opportunities remaining for American students?
Yes, I think there will be some focus on: What’s the right sizing there? And as a university, are you relying on foreign students for money? Or is your number calculated to having a good student experience?
What I think about with the foreign exchange program is that this was supposed to be a program where students come, and it’s an exchange program. You come to the United States, you learn about the United States, you learn about the U.S. culture, and then you take everything that you’ve learned about how great our country is, and you go back to your home country and you spread those ideas.
TZ: What is the source of the administration’s authority to determine the size of any particular cohort on campus? What is its target “fairness” number? Again, matriculation is a core part of the university’s academic freedom, and here the administration is claiming the power to dictate who is admitted. The foreign exchange program is an exchange program, to be sure, an exchange program. But not all international students study in the U.S. in such programs. Some are here for several years, pursing advanced degrees. It’s not clear where Ms. Mailman derived her understanding of international student studies as a pro-U.S. propaganda program - “you learn about the U.S. culture, and then you take everything that you’ve learned about how great our country is, and you go back to your home country and you spread those ideas” - but it does not surprise me that the administration views it this way.
Controlling and Operating Universities
Douthat: How qualified is the federal government — whether it be the White House, the Education Department or any other unit — to assess some of these things? I think you would concede that it is already tricky, to some degree, to assess how fully in compliance a university is, just with the Supreme Court’s admissions decision.
Mailman: . . . I think nobody in the Trump administration is trying to run a university. It is too taxing.
Douthat: Nobody actually wants to run a university.
Mailman: Nobody ever, yes. I think there’s a line of: How do you ensure compliance with civil rights and that your taxpayer money is going to a good place versus a bad place? Which is broader than a civil rights question, so you need some level of control. But at the end of the day, you want independent entities.
TZ: This is incoherent. “No one” wants to run a university (partly because of the pressures the administration is placing on leadership, I would say), but you have to have “some level of control” beyond what federal law requires, but you also “want independent entities.” Mr. Douthat is right to ask about the government’s competence in these areas.
. . . If you’re going to take the money, then, yeah, there’s going to be strings attached, but you don’t have to take the money.
TZ: Well, again, there are constitutional limits on these “strings.” They can’t, for example, be used to indirectly seek to force universities to change their viewpoints. And the “strings” can’t be unrelated to the grant program. If the federal funds are for cancer research, the administration can’t deny them because of alleged anti-Semitic activities during campus protests.
Douthat: . . . Do you think the federal government should be funding cancer research?
Mailman: Absolutely.
Douthat: OK. . . .There is good research that we want the government funding.
Mailman: There is good research. But your same question of how closely can you actually monitor a university’s ability to just do a good job, be merit-based, not be importing radicalism? These are difficult questions. How are you going to assess that?
It’s the same question, frankly, for all these grants. How are you actually going to monitor where this is being used? What types of research? How great the overhead? When you do have the overhead, is it going to the sports stadium, or is it going to salaries? If it’s going to salaries, then whose? These get to be difficult questions.
The problem is not whether the government should or shouldn’t be funding cancer research — it absolutely should — but the unwieldiness of it has led to basically an unchecked situation. I think it is actually proper to have a right sizing, where universities are relying on the federal government to a certain extent, where these are things that are maybe not close to a breakthrough and that there is an opportunity for the private sector to spend money in ways that are beneficial to society.
Douthat: In effect, you’re saying that Harvard is very good at getting billionaires to give it money and that if some of Harvard’s research funding is threatened, then it’s not a bad thing at all. If Harvard calls up its billionaire donors and says, “Hey, we don’t like what the federal government is asking of us. We want you to fund this cancer research instead,” you’d say, “That’s fine.”
Mailman: Wealthy people funding universities, funding science, funding our future is something that has history in this country.
TZ: There is also a history of the federal government funding scientific research private donors can’t or won’t fund because the profit motive is absent. Having the federal government decide what research is “good” is another unjustifiable intrusion on academic freedom and the production of scientific knowledge.
The Leveraging Effect of “Big” Fines
Douthat: . . . I’m just trying to understand how you get to the concrete ask.
One aspect of this is that the Trump administration has been asking and in some cases has successfully induced elite schools to pay pretty big settlements — fines effectively — to the federal government. How does that fit into the picture? Is this just punishment? Is it revenue for the federal government? What is the purpose of those kinds of settlements?
Mailman: Yeah, these are large numbers. Not to minimize that, but the Brown settlement and the Columbia settlement each represented 1 percent of the endowment. These are things that the universities can afford, and in a sense, it’s giving back a very, very small percentage of money that goes to these schools every year.
So I think there’s a recognition. It’s all — of course, there’s no recognition of fault. These are settlements. But by paying some of this back, I think there is, somewhat for the public, a sense of acknowledgment of wrongdoing. Not a legal sense but sort of a moral sense of “We’ve taken all this money, and we did it in ways that were not merit based, or they weren’t safe for our students, and so we’re paying a small amount of it back.”
TZ: As the university leaders can tell you, yes these are “big” numbers. Mentioning endowments is disingenuous, since leadership will also tell you a lot of endowment money is restricted to certain projects. Whether they can “afford” to pay is not the question, but rather what is the basis for the fine? Ms. Mailman hedges on fault, saying there is no legal admission of it but universities are confessing to some moral wrong. I doubt very much they see it that way.
But then I think, also having that dollar figure, it actually brings attention to the deals in ways people might not otherwise pay attention. So if you see a headline, and it’s “Columbia Sends $200 Million to the Treasury” and “$21 Million, Largest Ever E.E.O.C. Religious Discrimination Settlement,” actually, when you see numbers like that, then you pay attention, and you look, and then you’re able to learn a little bit more, something maybe you wouldn’t normally learn.
Douthat: And are there people paying attention — not just the public but other college presidents?
Mailman: Yeah, you want to get in early, before the fines are too large. But in general, a settlement on its own without a fine might not be taken as seriously by the public or by other universities as when there is a fine — which, like I said, these are small dollar figures compared to the amounts that they are getting every year from the federal government and from their donors — but I think it provides a seriousness and a focus on these in ways that promises only wouldn’t.
TZ: There’s an extortionate aspect to the fines. Get “in line” or the fines will increase, the government says. That doesn’t sound like a fault- or wrong-based sanctions system, but rather a form of financial coercion the Supreme Court has held violates the First Amendment. As a graduate of Harvard Law School, it seems unlike Ms. Mailman does not know this.
Imposing Ideological Diversity
Douthat: I want to ask how ideology and ideological diversity enter into this. Because in one of the publicized letters that the administration sent to Harvard, there was a specific focus on the idea that Harvard should be looking for intellectual diversity in hiring, considering seriously why there are so few conservative and Republican faculty and trying to do something about that.
And the letter took this quite far. It specifically said that Harvard should consider that “each department, field or teaching unit must be individually viewpoint diverse” — I’m quoting from the letter here — and that there should be an audit that goes on a “department-by-department, field-by-field or teaching-unit-by-teaching-unit basis, as appropriate.”
. . . [I]t does seem like, in this ask, you can see the problem with the federal government trying to micromanage this, because it just seems like you get very quickly into an absurd situation where someone in Washington, D.C., is scrutinizing Harvard’s geology department — I don’t even know if Harvard has a geology department, but you take my point — to see if it has enough Trump supporters.
Mailman: This is, I think, the most difficult question, because the answer is, on one hand, obviously I think conservatives want universities to prepare their students — students are going to be, in the real world, confronted with all sorts of thoughts, and they should be prepared for that — so a good university would have some level of intellectual diversity.
Not only that, but to the extent you have universities that are just hotbeds of radicalism, that’s not good for the student. That’s not good for the culture. That’s not good for the campus. That’s bad for the country. So that is all true. And I think the administration believes that intellectual diversity is a key factor to a good university that we would send our kids to.
At the same time, I think we all acknowledge that the federal government’s role in policing that is necessarily limited in the sense that we don’t want the next administration to come in and say: Well, actually, this is the mix that I think is the best.
TZ: Mr. Douthat’s skepticism is well taken. The answer isn’t that mandating intellectual diversity at universities is “difficult,” but rather that the federal government is prohibited from doing so. It cannot define for students and faculty what is “good” for the culture or country, and it certainly cannot use its power to suppress what it views as “radicalism” on campus. As Mr. Douthat’s comments suggest, if a conservative administration can do this so can a liberal one.
Douthat: Well, but I think that that particular example would not happen, but we saw in the Obama administration and, to some degree, in the Biden administration, that Democratic administrations were very comfortable using some of the same levers the Trump administration is using to push college campuses in particular directions on how to handle sexual assault and how to handle transgender issues and so on.
I think one of the critiques from a libertarian perspective of what the Trump administration is doing is that you are taking that model and turbocharging it, and a Democratic administration could say: Hey, all these Catholic hospitals seem to be getting a lot of public health care funding, and yet they won’t perform gender reassignment surgeries. Let’s do something about that.
There’s an endless escalatory spiral once the federal government is providing private institutions that get public money with marching orders, right? I think that’s a reasonable right concern.
Mailman: Right. So civil rights, I think, is easy. Meritocracy is good, and the hope is that if you are actually treating people on the basis of their merit — whether that’s test scores or whether that’s personal successes or whatever — you do tend to handle the intellectual diversity piece by accident, because it’s not going to be the case that every excellent person thinks the same thing. So there’s that.
But then also, that’s why it’s important that this process come underway, where there’s a conversation, with universities and with donors and with the Trump administration all together, about what it actually means to be a great university and to have buy-in. Because I think one of the reasons why some of these universities have made changes without provocation from the Trump administration — or, in the case of Columbia, even though there was provocation and even though it was a deal — it’s because they wanted to. They wanted to, and they thought that this was a good thing, and they were tired of being held hostage by their left wing.
And actually they want intellectual diversity. They don’t want another person who’s just going to have the same, like, “We’ve got another climate change person,” “We’ve got another gender studies person” — I think they want it. And so giving the universities the permission to do this sometimes requires a strong statement from the government that’s almost like a scapegoat. . .
TZ: Mr. Douthat’s engaging in false equivalency and alarmism. No Democratic administration has ever had a “grand strategy” to operate universities and control their admissions, teaching, and knowledge production. The “gender reassignment” Catholic hospitals hypothetical is absurd on a number of fronts. So is the idea that the universities faced with the full force of the executive branch really “wanted” to make the changes the administration is now seeking to compel. Anticipatory compliance is not the same as consensual action. This is like saying the victim of a crime “asked for it.” Harvard University’s resistance shows that universities do not want most of what the administration is compelling. If they want to make changes they should do so without a financial cannon to their heads.
Douthat: Let me throw out another seeming tension here, which is around issues about antisemitism. Clearly there are certain things that universities have tolerated or allowed in protests in the last few years — just overt harassment and intimidation of Jewish students. And I think there, it’s very straightforward what the administration is asking for.
But then there’s a larger, very blurry zone of critiques of the policies of the state of Israel and critiques of Zionism, where the administration has seemed to ask in some cases for something that, again, looks more like micromanaging of particular departments, saying: Well, we’re not going to have radical critics of Israel here and there and so on. That, again, seems like a thumb on the scale in intellectual debates.
Mailman: When you say the Trump administration has asked for them, I acknowledge that there are some letters that were sent by the antisemitism task force, in some way, that either incorporated the I.H.R.A. definition or otherwise were perceived to have been speech codes.
Douthat: Right, these are strong definitions of antisemitism that at least some people on the left would say rule out what should be legitimate critiques of Israel.
Mailman: Right, but when you look at what President Trump and at the senior level, what has actually happened — it’s not that.
The Columbia deal — and I think everyone would acknowledge that Columbia had a major antisemitism problem — but the Columbia deal in no way creates any speech code, whether it be on Israel or anything else. It does not — it specifically says that this is not intended to create any First Amendment conflict or otherwise govern speech on Columbia’s campus.
There’s a concern, and I think there are people in the administration who probably are more in favor of speech constraints and then people who are less in favor of speech constraints, and that’s just the way the Trump administration works, where people have different views of where that line is. And I think it’s a difficult conversation of what’s the line between harassment and being unable to actually function on campus versus fair criticism that people, even if they don’t like it, should hear. That’s not a definable line. That is a difficult line.
In sussing that out, at the end of the day, where the Trump administration landed is on the more free speech side of things, which is evident in the final terms of the Columbia deal.
TZ: Mr. Douthat is right to be concerned about the administration’s designs when it comes to faculty ideology and student speech. That is one reason academic freedom exists - to prevent government from dictating ideological hiring. The requirement that departments be intellectually balanced is a non-started from and academic freedom perspective. The bit about the IHRA definition of anti-Semitism is naive, disingenuous, or both. Once you have the definition, which arguably includes some protected criticisms of Israel’s policies, there is a significant danger it will be used to punish protected expression. That is why its originator does not think it should be used to police expression, on campus or anywhere else. The idea that the administration landed on the “more speech” side of the line is absurd. No definition means no speech code, which means “more speech.” Under current U.S. law,
Following Federal Law: Legality, Shmegality
Douthat: OK. Let’s talk for a minute about the legality of the approach the Trump administration has taken, because I think you have conceded, to some degree, that in all of these zones, there are gray areas and blurry lines.
However, the administration has also moved pre-emptively to cut funding to — correct me if I’m wrong, but my understanding is that what has happened repeatedly is that critiques have been lodged, investigations have been opened, and then funding has been cut before the investigation is complete. And this is where the Trump administration has been rebuked in court for this, most recently in a case involving Harvard itself, that you are essentially assuming the violation before the negotiation is actually finished. Is that a fair critique?
Mailman: That is certainly what Harvard says.
Douthat: Yes.
Mailman: I think it’s different than that, though. So, yes, Title VI, which says you can’t discriminate on the basis of race, is a bar on funding. If you are found to violate Title VI, that’s not grants that are at issue. That’s your student loans. That’s Pell Grants. I mean, that’s a big deal.
Douthat: If you are found to have violated it.
Mailman: If you are found. Now, what the Trump administration has done is not find a Title VI violation prior to the process. I mean, the Title VI violation was found — H.H.S. did find them in violation of Title VI and referred that case over to D.O.J. to litigate and informed the accreditor for Harvard. But this is an entity that doesn’t share the values, basically, of the administration, and there are various statutes and various regulations that give the administration that sort of discretion over how it can spend its own money.
TZ: No. Ms. Mailman is admitting to violating Title VI, which requires an investigation and findings before the funds are terminated. The administration either does not know the law or does not think it has to follow it. Courts have so far rejected the latter proposition.
Leveraging Federal Funding
Douthat: It does seem, in fairness, from our entire conversation, that the goal of the Trump administration’s strategy is not to micromanage how Harvard does cancer research or whatever; it is to change university policy on hiring and discrimination and antisemitism. So doesn’t it seem like that’s true, that you are picking these grants as a lever to affect something unrelated to them?
Mailman: Having Harvard change its policies would be great. But at the same time, if they don’t, that’s fine; we’re just not going to fund it.
It’s not like it’s taking over Harvard. They sued us. We didn’t sue them. It’s not a forced change. It is actually just that there’s a portion — not even all, there is a portion — of Harvard’s grants that we just decide should go to somewhere else, maybe another university, maybe Brown, maybe Princeton, maybe Yale.
TZ: This answer is non-responsive and disingenuous. It’s almost as if Ms. Mailman does not know that the First Amendment restricts the administration’s funding decisions. Mr. Douthat seems to understand that one such limit is that the government can’t leverage its funding power to regulate expression outside the grant program. The administration didn’t sue Harvard - it alleged, without proving, that it engaged in discriminatory action. Harvard sued to preserve its academic freedom and First Amendment rights.
Douthat: I’m just going to express some skepticism that the Trump administration has sat down and said: We really think that the University of Kansas’ cancer research program is just way better than Harvard’s, and we’re just going to cut that funding.
It seems like the administration is going after the areas where Harvard is, by general agreement, most effective and successful, because that seems like a useful lever to change other areas of administration policy.
Mailman: Yeah, but at the end of the day —
Douthat: Isn’t that a naïve reading? A simple reading, right?
Mailman: It’s not a full comparison of all universities across the nation. But at the end of the day, Harvard reacted to a letter that asked for a few simple changes with a lawsuit that basically said: Instead of us showing any amount of good faith effort to commit ourselves to the policies that are important to the United States, we’re going to instead say we refuse to even answer you.
These are billions of federal dollars, and I think that the funder of that can ask for a basic relationship.
TZ: See my previous comment. Also/ a “few simple changes” hardly describes the letter Harvard received from the administration. The point of Harvard’s suit is that “the funder” can’t demand what the administration seeks.
Douthat: All right, well let’s end by looking at the future. Imagine it is 2030, and I guess we can imagine it’s either a Democratic or a Republican administration. Give me a definition of success in higher-ed policy. In five years, in seven years or eight years, what does the landscape look like if your negotiations with and pressure on universities are successful?
Mailman: I think universities will return to a merit mission, and that’ll be in admissions, hiring and research, and that’ll be with its relationship to the federal government, that the federal government will be funding institutions that can be perceived as excellent.
I think policy’s larger than that. Policy is: What’s its effect in the world, and how does it change our culture? And my hope is that the people who are graduating from our universities carry values that will uplift Western civilization and our country.
TZ: This is the “grand strategy” in a nutshell - to change the mission of universities and to direct that they pursue goals the government demands. That was and is precisely the same “grand strategy” adopted by governments in Hungary and Turkey, which have closed universities or taken them over.
Turning Universities Rightward
Douthat: From my perspective — you can probably sense this from some of the questions I’ve asked — the core weakness, to me, of university culture is a kind of stifling intellectual conformism. But it also seems to me, just from watching the Trump administration in its battles with universities, the hardest for government policy to address without either falling afoul of the First Amendment or getting into impossible micromanaging.
. . . Universities did not become liberal because the federal government told them to become liberal. They became liberal because academic culture moved substantially to the left in an organic way. The same with student culture. Can you imagine a shift in the culture that would create greater intellectual diversity on college campuses?
Mailman: If we’re talking about federal and nonfederal levers, a couple of things. One, I think the same change that the Federalist Society has brought for law schools could be focused on.
. . .You can see a Turning Point-type organization try and figure out how to make professors and how to bring that energy into leadership levels. I think you could do some conservative organizing around already successful groups.
And then, I think, just competition. . . . I think the general idea there is you can have a robust intellectual environment in a lot of different places, and it doesn’t have to be the traditional university model.
TZ: Douthat finally hits the nail on the head. In general, what the administration claims ails universities was not caused or directed by government. And yet it is the federal government now trying to dictate broad changes in university expression and policies. Tellingly, Ms. Mailman does not seem to disagree, or at least provides no answer. Organic change is not the same as imposition of official orthodoxy. We should stop pretending the administration is generally trying to reverse prior administrations’ policies and recognize the “grand strategy” is broader and far more pernicious.