Weakening Government Coercion by Strengthening Government Regulation

Weakening Government Coercion by Strengthening Government Regulation

On March 7, 2025, four federal agencies announced that they would be cancelling $400 million in federal grants and contracts to Columbia University due, the agencies said, to the school’s “continued inaction in the face of persistent harassment of Jewish students.” The government statement indicated that the cancellation grew out of a “comprehensive review” of the school’s grants the agencies had initiated earlier that same week based on “potential violations of Title VI of the Civil Rights Act.” Less than a week later, the agencies sent a letter to the university detailing a series of steps the Trump administration described as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.” Those steps included changes to the university’s disciplinary and security policies and procedures, its definition of antisemitism, its admissions process, and its internal academic governance. Famously, this demand letter induced the university to enter into an agreement with the government to end these investigations and reinstate not only the $400 million in cancelled grants, but also to ensure Columbia’s access to billions of dollars in current and future grants. The administration’s actions against Columbia were but the first salvo in a sustained campaign to coerce higher education institutions—including Harvard University, the University of Pennsylvania, Brown University, Cornell University, Northwestern University, UCLA, and the University of Virginia—into conforming their internal governance to the administration’s political priorities. In each instance, an essential source of leverage was the potential withdrawal of federal money under the auspices of Title VI, a federal civil rights statute that prohibits discrimination based on “race, color, or national origin” in “any program or activity receiving Federal financial assistance.” For many years prior to the Trump administration, many observers complained of federal intrusions into university governance under the auspices of Title IX, a cognate civil rights law that applies to sex discrimination in federally funded education programs and activities. An irony of Title VI and Title IX is that, in a formal sense, these laws are weaker than many other federal civil rights statutes. Their prohibitions on race and sex discrimination operate, not through direct government regulation, but through contract. Neither law strictly mandates that any institution comply with its prohibitions—a recipient may instead choose to forego federal funding and thereby escape the obligations these laws otherwise impose. This enforcement structure distinguishes Title VI and Title IX from, for example, Title VII, an outright prohibition on employment discrimination based on race, sex, religion, or national origin, or the Americans with Disabilities Act, which directly prohibits discrimination on the basis of disability. Under our legal fictions, this direct effect makes the law stronger: a government obligation is more coercive than a choice. The double irony, then, is that the way to make Title VI and Title IX less able to serve as instruments of authoritarianism would be to change them from choices into commands, at least when it comes to higher education institutions. Rather than tying limits on race or sex discrimination to federal funding, Congress could simply amend the law to say that no institution of higher education may lawfully discriminate on these grounds. Potential infractions could be enforced in just the same way they are now—through private rights of action and government enforcement via the Department of Education or the Department of Justice. The difference would be that, instead of a potential remedy of loss of all government financial assistance—a number that runs into the billions of dollars for large research universities such as Columbia and Harvard, but also, under Grove City College v. Bell,1 1. 465 U.S. 555 (1984). could potentially affect any school whose students receive federal financial aid2 2. Congress clarified in 1987 that the anti-discrimination coverage of Title VI and Title IX is institution-wide, but the remedy of funding withdrawal remains “limited in its effect to the particular program, or part thereof” found to be out of compliance. 42 U.S.C. § 2000d-1; 20 U.S.C. § 1682. Given the historical lack of actual funding withdrawals, the precise application of this targeting provision remains ambiguous.—the available remedy would be actual (or statutory) damages or a tailored injunction, just as law usually works. Congress could also create a table of administrative fines tailored to the severity of the violation, which would enable administrative enforcement to continue, but in a far more proportionate way than it does now. There is no legal obstacle to Title VI and Title IX being structured in this way. The constitutional authority for doing so would be based on the Commerce Clause (and, for public institutions, section five of the Fourteenth Amendment) rather than, as now, on the General Welfare Clause. To bring colleges and universities safely within Congress’s constitutional power, it would be prudent to add a “jurisdictional hook” that applied the prohibition only to institutions with educational programs “affecting interstate commerce,” the same caveat that attaches to the Civil Rights Act’s outright prohibitions on discrimination in public accommodations (Title II) and employment (Title VII). Since higher educational institutions typically pull students and faculty from across state and national borders and send their graduates around the country, this qualification would be easily satisfied in all but the most unusual of cases. The original structure of Title VI may well have been a concession to federalism. The law was designed to create a federal remedy, beyond litigation, to combat school segregation in the Deep South. So far as I can determine, direct statutory regulation of Southern schools wasn’t even on the table; it would have been widely considered an intrusion on local political control and would have made passage of the Civil Rights Act of 1964 even more difficult than it was. Title IX was modeled on Title VI. This federalism concern is far less acute, and the coercive effect of federal funding withdrawal far greater, in the context of modern universities. Such universities are often selective, have voluntary enrollments, and operate largely autonomous of local political control over their governance. And as we have seen, the threat of a funding withdrawal can mean, not just the loss of a budget line or a threat to a single program, but a death sentence for much of the university’s scientific research and a serious blow to its affordability, and thus to its livelihood. More money, The Notorious B.I.G. reminds us, more problems. There is little reason to think converting Title VI and Title IX into direct prohibitions policed through damages, tailored injunctions, and more proportionate administrative enforcement would make colleges and universities any more or less discriminatory, or indifferent to peer-to-peer discrimination, than they are now. Until the second Trump administration, withdrawal of federal financial assistance was not used as an actual remedy in Title VI or Title IX enforcement. The main difference would be that the federal government would no longer be able to use the downstream possibility of this draconian and disproportionate remedy as an in terrorem device to coerce institutions into conformity with a particular administration’s broader political agenda. President Kennedy anticipated this concern. In rejecting the recommendation of the U.S. Commission on Civil Rights that federal funds be denied statewide to states that did not desegregate their schools (a far worse offense than the typical modern Title VI complaint), he said, “I would think it would probably be unwise to give the president of the United States that kind of power.”3 3. See Stephen C. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act 25 (1995). Title VI and Title IX are not, of course, the only sources of leverage governments exert over universities. An administration may threaten current or future funding streams on other statutory or contractual grounds, each of which must be addressed on their own terms. But ending the vague and unnecessary tying of the salutary prohibition on race and sex discrimination in higher education to the receipt of federal funding would go a long way toward removing a loaded gun from the hands of a wayward government.