For more than 80 years, the system of higher education in the United States has partnered with the federal government to produce the best science, technology and scholarship in the world. Competing for federal research support on the basis of merit, universities have produced countless innovations and spurred enormous economic growth. The Trump administration has now proposed a “Compact for Academic Excellence in Higher Education” that threatens to destroy this partnership.
Holding hostage federal loans and grants, the “compact” is essentially a unilateral executive decree that cannot be refused. Although it sounds in high and unobjectionable ideals, it is in fact designed to undermine the traditional academic independence and freedom that have sustained the greatness of American universities. The compact should be immediately and forcefully rejected by all self-respecting institutions of higher education.
Universities and colleges have two essential missions. They serve to increase our knowledge of the world and to educate our young. Knowledge cannot be increased if it is assessed by political criteria, as distinguished from standards of intellectual merit. But the compact requires that institutions of higher education abolish “institutional units that … belittle … conservative ideas.” What exactly counts as conservative is unstated and left in the control of the administration. The compact seeks to supplant intellectual competence with explicitly political criteria, to be determined by a political agency. This demand violates not only academic freedom, but also free speech. It imposes government orthodoxy on private entities.
The compact demands that universities offer empirical verification that each institutional field, department and unit represent a “broad spectrum of viewpoints.” It thus invites government to overrule scientific consensus on the range of acceptable inquiry. Most colleges of environmental sciences, for example, teach that global climate change is accelerated by human conduct. But Trump himself, speaking before the United Nations, branded this view the “greatest con job.” Most medical schools teach that vaccines are important to health. But Trump’s secretary of health and human services “has been crusading against vaccines for decades.” Under the compact, government might insist that every biology department house a vaccine denier, or that every environmental science program contain a climate change skeptic. Political control of this kind would quickly degrade the intellectual integrity of university scholarship.
Early in the 20th century, American universities were managed by laypersons who attempted to censor and control the scholarship of professors. But in 1915, the newly established American Association of University Professors defined and defended academic freedom in the canonical Declaration of Principles on Academic Freedom and Academic Tenure. The declaration set forth principles that are now enshrined in contracts at virtually every American college and university. These principles protect academic freedom, which rests on the axiom that scholarly excellence is to be determined by academic rather than political standards. Trump’s proposed compact wantonly violates this essential principle, even as it purports to protect academic freedom.
The declaration also makes clear the educational goal of American colleges and universities, which is to equip students to think for themselves. The compact, in contrast, requires universities to suppress “support for entities designated by the U.S. Government as terrorist organizations.” Government may of course create such designations, but unfortunately they may also be problematic, overbroad or erroneous. Students and professors should be allowed to criticize such errors, but the compact would prevent this. It would require American colleges and universities to become instruments of official thought control. This is what happened in the United States during World War I, when professors were fired for opposing the war. We have spent a century repenting those mistakes, and now the Trump administration demands that we repeat them.
Some provisions in the compact are unobjectionable because they merely restate existing law. The Supreme Court has outlawed the use of race in admissions. Congress has laid out procedures for enforcing antidiscrimination law under Title VI and Title IX. These tools are adequate to enforce the law. But the compact has a larger goal: It seeks to break the independence of American higher education, an independence that has fueled the ascent of American colleges and universities to greatness. The compact goes far beyond the Supreme Court’s ruling on affirmative action to require that all admissions decisions “be based upon and evaluated against objective criteria.” It also requires “grade integrity,” freezing tuition rates for five years, disclosure of postgraduate earnings and free tuition for students in the hard sciences at universities with large endowments. It limits the percentage of foreign students and requires screening for anti-American bias.
The diversity of American institutions of higher education is commonly understood to be a source of its enormous strength. Competing against each other for students, American colleges and universities admit students based on their own distinct and legal criteria. But the administration seeks to end that heterogeneity. For many institutions what matters is the creativity of a student’s essay, the qualitative assessment of recommendations and the resilience of an applicant’s personality as revealed in a résumé. The administration would have universities ignore all that. It would turn our colleges and universities into drab, bureaucratic and uniform institutions, under the shadow of the continuous threat of government interference.
Under the compact, universities also must commit to institutional neutrality, the idea that university leaders and departments will not officially comment on social and political issues of the day that do not affect the university. This is an ideal embodied in the 1967 Kalven report at the University of Chicago, but its adoption and interpretation is a very local matter, and it should not be required as a condition for receipt of federal funds.
Institutional neutrality is important because it protects the maximum freedom of students and faculty to vigorously inquire, without battling the pall of official ideas. But some institutions might have specific missions that they deem essential. For example, a religious institution of higher learning might have a certain set of principles that require leaders to speak out. If government gets to decide what counts as a social or political issue, a medical school might not be able to opine on the safety of vaccines, an environmental department on the impacts of climate change or a law school on violations of the rule of law. Of course, universities may choose not to opine on these matters, but for the administration to impose this silence is truly inimical to a marketplace of ideas.
The compact insists that universities “commit to defining” gender roles “according to reproductive function and biological processes.” Gender troubles certainly abound in universities, and prior administrations may have contributed to these difficulties. But these quandaries are for universities to settle. The diversity of approaches taken by American colleges and universities is our greatest strength. The compact unaccountably seeks to impose its own ideology on all institutions of higher education. It seeks to replace a pluralist market with a single orientation set by Washington, D.C.
The architect of America’s public-private research partnership, Vannevar Bush, asserted that “scientific progress” required “the free play of free intellects, working on subjects of their own choice, in the manner dictated by their curiosity for exploration of the unknown.” The Trump administration would do well to recognize that a genuine marketplace of ideas requires academic freedom for scholars and a competitive environment for institutions.
For the administration to attempt to use federal funds to force colleges and universities to toe a conservative line is to create what our constitutional law calls unconstitutional conditions. No university that is committed to independently searching for the truth, or to producing students who can think for themselves, should submit to the deliberate and possibly illegal humiliations contained in the compact. Institutions that do so may very well cease being universities in the full sense of the term. They should just say no.
Robert Post is the Sterling Professor of Law at Yale Law School, where he served as dean from 2009 to 2017. His research specialties include issues of free speech and academic freedom.
Tom Ginsburg is the Leo Spitz Distinguished Service Professor of International Law at the University of Chicago Law School and director of Chicago’s Forum for Free Inquiry and Expression.
