By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson,
Jeremy Kessler, Gillian Metzger, and David Pozen
On Thursday, the president of
Columbia University received a remarkable letter
from the General Services Administration, the Department of Health and Human
Services, and the Department of Education. The letter states that the
university must meet numerous requirements by March 20, 2025, “as a
precondition for formal negotiations regarding Columbia University’s continued
financial relationship with the United States government.” These requirements
include changes to student disciplinary policies and procedures; changes to
rules on university governance, campus security, and campus life; placing the
Middle Eastern, South Asian, and African Studies department “under academic
receivership”; and “comprehensive” reform of admissions to various schools
within the university.
As scholars of constitutional law,
administrative law, and antidiscrimination law who teach at Columbia, we feel
compelled to point out some of the most glaring legal problems with this
letter.
- Title
VI Standards. As
the basis for the funding cutoff, the letter cites the university’s
failure to protect students and faculty from “antisemitic violence and
harassment in addition to other alleged violations of Title VI and Title
VII of the Civil Rights Act of 1964.” The letter offers no explanation of
the alleged violations, no mention of a completed investigation, and no
account of how Columbia has been deliberately indifferent to ongoing
antisemitic discrimination or harassment on its campus—perhaps because any
such account would be implausible
at this time. There is therefore no apparent statutory basis for a funding
cutoff.
- Title
VI Procedures. Prior
to a funding cutoff, Title VI requires “an
express finding on the record, after opportunity for hearing,” of any
failure to comply with the statute, as well as “a full written report”
submitted to House and Senate committees at least 30 days before the cutoff takes effect. In defiance of these requirements (among others), the agencies are
purporting to immediately freeze federal funds and to impose preconditions
that the university must satisfy in advance of “negotiations.” The statute does
not allow this approach.
- Title
VI Remedies. Even
if proper notice had been given, a hearing had occurred, and a statutory
violation had been found, Title VI does not permit blanket funding
removals. Rather, it requires
that any removal be “limited in its effect to the particular program, or
part thereof, in which noncompliance has been so found.” There has been no
allegation—much less a finding—of noncompliance in the many parts of
Columbia from which funding has been cut, including from urgent
medical and scientific research. Moreover, any permissible remedy would have
to be tailored to addressing unlawful discrimination. The agencies’ demands
exhibit no such tailoring and, on the contrary, effectively tell Columbia
to rewrite its policies on free speech, student discipline, public safety,
undergraduate admissions, and more. Indeed, the remedies demanded in the
letter not only far exceed the power of the agencies under Title VI; they
also raise serious constitutional concerns.
- Academic
Freedom and the First Amendment.
The federal government enjoys broad discretion to provide funds to private
institutions, including universities. The Supreme Court has made clear, however, that the government “may not deny a benefit to a
person on a basis that infringes his constitutionally protected … freedom
of speech even if he has no entitlement to that benefit.” Simply put,
funding conditions may not impose unconstitutional burdens on First
Amendment rights. Many of the agencies’ demands risk compromising academic
freedom, which the Supreme Court has recognized
as “a special concern of the First Amendment.” The Court has emphasized
the importance of academic freedom at universities in particular, stating
that “[t]he essentiality of freedom in the community of American
universities is almost self-evident.” In light of these core First
Amendment principles, Title VI has never been understood to allow agencies
to insist that a university restructure academic departments or abolish
internal governance bodies, for example, as a condition of receiving
federal funds.
- Unconstitutional
Vagueness. The
Supreme Court has further emphasized
that “[b]road prophylactic rules in the area of free expression are
suspect” and that “[p]recision of regulation must be the touchstone in an
area so closely touching our most precious freedoms.” Yet for several of
the agencies’ demands implicating freedom of expression, it is unclear
what the university must do to comply. For example, the letter offers no
details as to what “federal law” or “policy” the university’s admissions
practices contravene, and it offers no guidance as to why the university’s
existing “time, place, and manner” rules are inadequate. The vagueness of
the agencies’ demands compounds the threat to academic freedom and rule by
law.
- Due
Process. A withdrawal of federal funding without adequate procedural
safeguards likely violates the Due Process Clause of the Fifth Amendment
as well as Title VI. The Supreme Court has stated that, in determining
what constitutes adequate process, this clause requires an assessment of “the
private interest that will be affected by the official action”; “the risk
of an erroneous deprivation of such interest through the procedures used”;
“the probable value, if any, of additional or substitute procedural
safeguards”; and “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” The fact that Congress
established the statutory procedures described above speaks to its own assessment
of these factors. In any event, immediate withdrawal of funds without
reference to a completed investigation—and in the absence of an
opportunity for an administrative hearing or voluntary compliance with
legitimate Title VI requirements—is not consistent with the Fifth Amendment.
This is a preliminary analysis. We
do not mean to suggest that it is an exhaustive list of problems with the
demand letter, nor do we mean to elevate our concerns about this matter over
concerns about other recent actions taken by the executive branch. We focus on
the legal infirmities of the letter’s Title-VI-related demands because they
have received relatively little attention to date. While we are in no position
to dictate the university’s response, we hope that this analysis
helps show how these demands threaten not only Columbia’s funding for critical
academic research but also fundamental legal principles and the mission of
colleges and universities across the country.