On Wednesday, according to The New York Times, the Trump Administration sent letters to nine universities offering them financial benefits and relief from investigations if they agree (among other things) to “freeze tuition for five years,” provide “free tuition to students studying math, biology, or other ‘hard sciences’ if endowments exceed $2 million per undergraduate,” “cap the enrollment of international students,” “commit to strict definitions of gender,” and “change their governance structures to prohibit anything that would ‘punish, belittle and even spark violence against conservative ideas.'”

I have not seen the letter itself, but it refers to a “compact” document that the universities are asked to sign, and that is here. It includes, among other things, a provision that “all university employees, in their capacity as university representatives, will 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.” (Does that mean I may not publish an article about Ukraine and identify myself as a Tufts professor?) Erwin Chemerinsky says, “It would be hard to come up with a more explicit attempt to restrict freedom of speech.”

Failure to sign evidently means risking federal support, or at least facing investigations and litigation. “This Compact for Academic Excellence in Higher Education represents the priorities of the U.S. government in its engagements with universities …. Institutions of higher education are free to develop models and values other than those below, if the institution elects to forego federal benefits.”

Trump won the election, and elections have consequences. The Administration may write regulations governing higher education. So why doesn’t the Department of Education publish this “compact” as a regulation applying to all universities? One rule would then apply to all, and it would be transparent and predictable.

A rule would also be subject to judicial review, and colleges and higher ed. associations would have incentives to sue, arguing that the regulations exceed the statutory authorization of the Department of Education, violate the First Amendment, or both. Some or all of the regulations might survive judicial review. In any case, everyone would know the results and would have to comply with the courts’ rulings. Because the rules would apply to the entire sector of higher education in all 50 states, there might be considerable backlash from voters.

All of this–publicity, consistency, predictability, judicial review, and review by voters–constitutes the rule of law. These letters violate it.

Some institutions may willingly take the deal, and others may decide to settle even if they believe that it undermines their rights because it is cheaper to negotiate than to fight back. Already, the chair of the University of Texas Board of Regents has said that UT is “honored” to have been “named as one of only nine institutions in the U.S. selected by the Trump administration for potential funding advantages.”

The result will be a de facto policy, applied one institution at a time, with no judicial review. Colleges may accept deals that trade away their Constitutional rights. Possibly, students and faculty will have standing to sue their own institutions (as Jimmy Kimmel could have sued ABC), but it will be hard for third parties to challenge these “voluntary” agreements. And institutions that the Administration decides not to target will be left alone, thus reducing any backlash.

It is very important that students, faculty, and alumni of these communities advocate for their institutions not to sign the compact: University of Arizona, Brown, Dartmouth, MIT, the University of Pennsylvania, USC, the University of Texas, Vanderbilt University, and UVa.

See also: primer on free speech and academic freedom; AAUP v Rubio; Holding two ideas at once: the attack on universities is authoritarian, and viewpoint diversity is important

On March 25, Tufts student Rümeysa Öztürk was abducted by masked ICE agents because she had co-authored a clearly legal op-ed in our campus newspaper, not directly about Israel but about how the university had responded to our student government. According to Andre Watson, the Assistant Director of the National Security Division of ICE, this op-ed could “undermine U.S. foreign policy by creating a hostile environment for Jewish students and indicating support for a designated terrorist organization.”

After an unconscionably long period of detainment in inhumane circumstances, Rümeysa was ordered released. Subsequently, the American Association of University Professors and the Middle Eastern Studies Association sued Donald Trump and members of his administration, seeking an injunction against the policy that had ensnared Rümeysa and other defendants.

Yesterday, federal District Court judge William G. Young, an appointee of Ronald Reagan, issued a 161-page decision in favor of the plaintiffs that is a blistering denunciation of the Administration. It makes quite a read.

It starts with the image that I reproduce above. (I have never seen a judicial decision with a front-page illustration.)

The judge’s main finding comes early:

Secretary of Homeland Security Kristi Noem and the Secretary of State Marco Rubio, together with the subordinate officials and agents of each of them, deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations (pp. 4-5).

Judge Young does not mince words in the many pages that follow. For example, “the facts prove that the President himself approves truly scandalous and unconstitutional suppression of free speech on the part of two of his senior cabinet secretaries” (p. 96).

After considering the arguments in favor of masking ICE agents, the court “rejects this testimony as disingenuous, squalid and dishonorable” (p. 98).

The judge explains:

It was never the Secretaries’ immediate intention to deport all pro- Palestinian non-citizens[.] for that obvious First Amendment violation … could have raised a major outcry. Rather, the intent of the Secretaries was more invidious — to target a few for speaking out and then use the full rigor of the Immigration and Nationality Act (in ways it had never been used before) to have them publicly deported with the goal of tamping down pro-Palestinian student protests and terrorizing similarly situated non-citizen (and other) pro-Palestinians into silence because their views were unwelcome.

The Secretaries have succeeded, apparently well beyond their immediate intentions” (p. 95).

I have been saying that we in academia should enhance ideological pluralism because it’s the right thing to do. It makes our thinking and teaching more rigorous. However, the Trump’s Administration’s attacks on higher education have nothing to do with that goal, except that intellectual diversity is occasionally and inconsistently used as a pretext. The Administration is trying to crush pluralism by applying a set of tools popular among modern authoritarians of the left, center, and right. The Administration’s policies make it considerably more difficult to promote reasonable dialogue across ideological differences on campuses. But more importantly, the government is “terrorizing” vulnerable people into silence.

Near the end of the decision, Judge Young quotes the president who appointed him, Ronald Reagan: “Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people.” The judge concludes:

As I’ve read and re-read the record in this case, listened widely, and reflected extensively, I’ve come to believe that President Trump truly understands and appreciates the full import of President Reagan’s inspiring message –- yet I fear he has drawn from it a darker, more cynical message. I fear President Trump believes the American people are so divided that today they will not stand up, fight for, and defend our most precious constitutional values so long as they are lulled into thinking their own personal interests are not affected.

Is he correct?

See also: primer on free speech and academic freedom; academic freedom for individuals and for groups; Holding two ideas at once: the attack on universities is authoritarian, and viewpoint diversity is important