Trump’s ‘Compact’ With Universities Is Just Extortion

Opinion|Trump’s ‘Compact’ With Universities Is Just Extortion

On Wednesday, the Trump administration sent letters to nine major universities proposing a “compact.” As The Times reports, the agreement would, among other things, require these universities to freeze tuition rates for five years, limit the enrollment of foreign students and be bound to specific definitions of gender. It would also require them to prohibit anything that would “punish, belittle and even spark violence against conservative ideas.”

In exchange, these universities would receive “multiple positive benefits,” including “substantial and meaningful federal grants.” The schools were warned that they were free to go a different route if any of them “elects to forgo federal benefits.” A senior White House adviser indicated that the administration wants to extend this compact to all institutions of higher education.

This is extortion, plain and simple.

It is not hyperbole to say that the future of higher education in America requires that every university reject it. If any schools capitulate, the pressure will be enormous on all to fold. The only solution is solidarity and collective action against this effort at federal control over higher education.

President Trump is trying to circumvent the legislative and judicial branches of our government by presenting this as a deal with schools. Nothing in the Constitution or federal law authorizes the president to do this unilaterally. The Supreme Court has been clear that Congress can set conditions on federal funds so long as the requirements are constitutional, clearly stated, related to the purpose of the program and not unduly coercive. Mr. Trump’s compact fails every part of that test.

A Supreme Court decision in 2012 about the Affordable Care Act explains why Mr. Trump’s proposal is unduly coercive and thus unconstitutional. In that case, the Supreme Court ruled that the A.C.A., also known as Obamacare, was substantially constitutional. But it declared unconstitutional a provision of the law that required states to expand their Medicaid programs or lose all federal Medicaid funds.

No state is required to take federal Medicaid money (just as no university has to take federal funds for its research and its programs). Nonetheless, the Supreme Court said that forcing states to make that choice was unconstitutional. Writing for the majority, Chief Justice John Roberts described this as a “gun to the head” and “dragooning” the states. The administration’s proposed compact is similarly impermissibly coercive.

Moreover, there is a basic principle of constitutional law — the unconstitutional conditions doctrine — that the government cannot condition a benefit on a recipient having to give up a constitutional right. But that is exactly what the compact would do. When it calls for universities to effectively ban anything deemed to punish or belittle conservative ideas, it tramples the right to freedom of speech.

The core of the First Amendment is that the government cannot use its power to discriminate on the basis of the viewpoint expressed. But this provision would do just that in treating conservative ideas differently from liberal ones. And any restriction on belittling an idea is obviously unconstitutional; there always is a right to disagree with an idea, even in strong language. (As with “belittle,” the meaning of “conservative” is vague, leaving the definition up to the whims of members of the administration.)

I’ve seen a copy of the compact and note that it would violate the First Amendment in another way: requiring universities to have policies prohibiting “all university employees, in their capacity as university representatives,” to abstain from “actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university.” It would be hard to come up with a more explicit attempt to restrict freedom of speech.

Requiring adherence to the administration’s definitions of gender is clearly another effort to further marginalize transgender students. It also very likely would be illegal, as the Supreme Court has held that the prohibition of sex discrimination in federal laws, such as employment discrimination statutes, forbids discrimination based on gender identity.

Beyond the unconstitutional aspects of the compact, there is its odious demand to intrude on the autonomy of these schools. Every aspect of it seeks to dictate decisions that have traditionally been left to each university — a degree of control over higher education that is characteristic of authoritarian countries. As someone who has spent his career as a professor and as a dean, it is chilling to contemplate universities relinquishing their freedom in this way. Indeed, if any of these universities cave, it’s hard to imagine any limit to what the administration might try to demand next.

We all learned long ago on the playground that trying to appease a bully only makes things worse. It’s equally hard to imagine how higher education will recover if colleges and universities begin conceding to Mr. Trump’s illegal compact.

Erwin Chemerinsky is the dean of the law school and the Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley. His books include “No Democracy Lasts Forever: How the Constitution Threatens the United States.”

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