A Title VI Demand Letter That Itself Violates Title VI (and the Constitution)

David Pozen

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 of 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.