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.
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