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

David Pozen

By Kate Andrias, Jessica Bulman-Pozen, Suzanne Goldberg, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen

In March, the American Association of University Professors and the American Federation of Teachers sued the Trump administration for terminating $400 million in federal grants and contracts and freezing hundreds of millions in additional funds to Columbia University. According to the complaint, at least some portion of those grants and contracts supported the research of AAUP/AFT members at Columbia. The complaint further alleged that the administration’s campaign of intimidation against universities has chilled the speech of AAUP/AFT members. The plaintiffs argued that the funding withdrawals contravened Title VI of the Civil Rights Act of 1964 as well as the Administrative Procedure Act, the First Amendment, the Spending Clause, the Due Process Clause, and the constitutional separation of powers. They sought a preliminary and permanent injunction.

Last week, U.S. District Judge Mary Kay Vyskocil, who was appointed to the bench in 2019 by President Trump, issued an opinion denying the motion for a preliminary injunction and dismissing the case for lack of standing. Judge Vyskocil acknowledged that she could not reach the merits given her standing conclusion. She nonetheless went on to suggest that the funding cutoff did not implicate the First Amendment and was unrelated to Title VI, so that the statute’s elaborate procedural requirements did not apply.

Before this litigation commenced, seven of us coauthored a blog post describing what we believed, and continue to believe, were blatant violations of Title VI and the Constitution in the federal government’s suspension of funding to Columbia. Our firm conviction that the government’s actions were unlawful does not depend on whether the plaintiffs in this case can successfully prosecute their suit. We are also well aware that Columbia itself has not chosen to sue the Trump administration, that a “deal” to restore the university’s funding could be announced any day now, and that this entire episode raises many questions that law alone cannot answer. Still, it seems to us that Judge Vyskocil’s astonishing opinion warrants a reply.

Standing

Under longstanding doctrine, plaintiffs in federal court must show that they have been injured by the defendant’s actions and that the relief they are seeking will provide redress for the injury. An organization may sue on behalf of its members through “representative” standing if the individual members would have standing in their own right. Crucially, in evaluating standing, a federal court must assume that the plaintiff’s factual allegations and legal arguments on the merits are correct.

Here, the plaintiff organizations argued that the Trump administration’s funding cuts—which the court must, at this stage, assume to be unlawful—disrupted their members’ research and infringed their rights of free speech and academic freedom. Judge Vyskocil rejected this argument as follows:

Plaintiffs have not demonstrated that it makes a difference to their members whether the funding for their research and salaries comes from American taxpayers, non-party Columbia’s multi-billion-dollar endowment, the largess of Columbia’s donors, or the eye-popping tuition bills paid by Columbia students, including the Jewish students who apparently paid for the privilege of being threatened with violence on their way to class. See Rosenthal Decl., Ex. 51 at 2.

Indeed, Plaintiffs’ own evidence demonstrates that “Columbia has committed to providing salary coverage during this immediate period of uncertainty for personnel whose grants have been terminated.” Hirsch ¶ 12. Plaintiffs’ own evidence also demonstrates that Columbia has relied on “generous alumni” to alleviate certain “unanticipated expenses” [ECF No. 99-5 at 3]. Insofar as Columbia elects not to use its various private resources to fund specific research and personnel, Plaintiffs’ members’ quarrel is with Columbia.

Plaintiffs likewise fail to establish representational standing based on the alleged chilling of their members’ speech and academic freedom. The numerous declarations in which Plaintiffs’ members (and other individuals affiliated with Columbia with whom Plaintiffs appear to have no relationship whatsoever) attest to their “subjective” feelings of being chilled are not sufficient for standing. Laird v. Tatum, 408 U.S. 1, 13 (1972). Plaintiffs have not demonstrated that Defendants have harmed them because of their protected First Amendment activities or threatened a specific, imminent future harm for such protected activities. See id.

This analysis fails to engage with the plaintiffs’ allegations, much less to draw all reasonable inferences in their favor. The complaint (¶¶ 92–113, 185–265) contends that the government funding cutoff has harmed, and in some cases halted altogether, specific research, teaching, and other academic activities by AAUP/AFT members. That Columbia committed to covering the salaries of certain personnel for an unspecified period hardly solves the problem. Not only is the duration and extent of such coverage uncertain—as reflected in the university’s announcement last month that it would be laying off nearly 180 researchers funded by the canceled grants—but the lost wages of Columbia employees make up only a portion of the harm. As detailed in several declarations submitted in the case, federal grants often support researchers across multiple institutions, and a wide array of research projects are in imminent danger of collapse on account of the funding cuts. Uncertain funding also hinders planning, recruiting staff, and enrolling subjects in human trials. Judge Vyskocil’s suggestion that Columbia has the means to cure all these harms with its own resources is not based on any record evidence and, on the contrary, is flatly inconsistent with the complaint. There is, therefore, no basis for holding that the plaintiffs lack constitutional standing.

The broader issue that appears to have motivated Judge Vyskocil is that the immediately injured party is Columbia and not its researchers. As she writes:

[Plaintiffs] are inserting themselves into a quarrel between the Executive Branch and non-party Columbia, which, Plaintiffs’ own submissions make clear, Columbia wishes to resolve cooperatively, and perhaps through administrative appeals, without resorting to litigation that might further imperil Columbia’s resources and reputation. See supra n.1; CGC Email; Pl. Mem. at 6. Indeed, Plaintiffs’ and Columbia’s different assessments of the litigation risks simply underscores that non-party Columbia is the party with “the personal stake in the litigation.” Klein on behalf of Qlik Techs., Inc. v. Qlik Techs., Inc., 906 F.3d 215, 221 (2d Cir. 2018). This Court has no authority to opine on the legality of Executive Branch actions against an entity that is not a party to this case. See TransUnion, 594 U.S. at 423–424; Murthy, 603 U.S. at 57.

In other words, because the grants at issue were awarded to Columbia, the researchers who applied for the grants and run the funded projects are interlopers in a dispute that the main party in interest hopes to resolve out of court.

There are circumstances in which, even when a plaintiff has constitutional standing, a court has discretion to deny standing for “prudential” reasons, including that there are other parties who are more directly harmed and better suited to litigate the matter. Although Judge Vyskocil emphasizes the constitutional concepts of injury and redressability, her standing holding is most charitably understood as prudential.

We agree that the litigation would be aided by Columbia’s participation. But the fact that the university has refrained from litigating should not foreclose other injured parties with a cause of action from having their day in court. Judge Vyskocil suggests that Columbia has no desire to vindicate its statutory and constitutional rights, but a more plausible inference is that the federal government has coerced the university into negotiating with it. Just consider the Trump administration’s public pledges to crush universities that don’t “play ball,” its openly retaliatory actions against Harvard, and its announcement of a criminal investigation into Columbia the day after sending Columbia’s leadership a list of demands. Under these conditions, electing to deny standing to others who are also materially affected by unprecedented funding cuts strikes us as far from prudent—and as an invitation to government lawlessness.

The Merits

Judge Vyskocil’s opinion goes beyond standing. She makes what she describes as a factual finding that the reason the funding was terminated was because it was inconsistent with the administration’s policy priorities, not because of any alleged violation of Title VI or retaliation for failure to conform to the administration’s preferred campus ideological climate. From this premise, she concludes that the administration was and is under no obligation to follow Title VI procedures before cutting off Columbia’s funding. This conclusion is inappropriate given the posture of the case. It is also demonstrably incorrect. 

In each of its relevant communications, all contained in the record, the Trump administration invoked Title VI. On March 3, the administration announced a “comprehensive review” of federal funding to Columbia “in light of ongoing investigations for potential violations of Title VI.” Four days later, it declared the “immediate cancellation of approximately $400 million in federal grants and contracts to Columbia University,” citing only Title VI as legal authority. On March 13, it demanded that Columbia make changes to various policies and governance bodies and again linked the funding cutoff to Columbia’s failure to protect “students and faculty from antisemitic violence and harassment in addition to other alleged violations of Title VI and Title VII.” A foundational principle of administrative law requires that agencies defend their actions based on the grounds contemporaneously presented in their decisions.

It is especially surprising that one reason Judge Vyskocil offers for her finding that the cutoff was not based on Title VI is that “Title VI does not mention religion.” Her suggestion that Title VI does not apply to antisemitism is deeply contested, including by the Biden and Trump administrations. In both its letters to Columbia and its own findings of fact regarding Columbia’s response to campus protests, the Trump administration maintains that Title VI protects Jewish students from discrimination and harassment.

In any event, even if the government could establish that its funding withdrawal was not subject to Title VI procedures, that would not dispose of the plaintiffs’ legal arguments. The plaintiffs, supported by numerous amici, additionally argue that the funding withdrawal is arbitrary and capricious under the APA, impounds congressionally appropriated money in contravention of the separation of powers, violates the First Amendment, violates the Due Process Clause, and violates the Spending Clause. These are all serious legal arguments. And each is independently sufficient for the plaintiffs to win.

Judge Vyskocil appears to believe that the appropriate forum, if any, for these arguments is the Federal Court of Claims, based on the Supreme Court’s emergency docket opinion in Department of Education v. California. There, the Court said that the APA’s waiver of sovereign immunity did not apply to the enforcement of a contractual obligation to spend money, and therefore could not be used to attack the cancellation of various education-related grants in a regular Article III court. Instead, under the Tucker Act, jurisdiction over those grant cancellation claims lay in the Court of Claims.

But the Tucker Act only applies to claims based on an “express or implied contract with the United States.” And as Judge Vyskocil repeatedly asserts in her standing analysis, the plaintiffs are not parties to any contracts at issue in this case. More to the point, the substance of the plaintiffs’ complaint is that the government’s actions violate the Constitution and federal statutes, not the terms of a contract. Although there is some disagreement, a number of lower courts have already distinguished California and found jurisdiction on a similar basis. The Ninth Circuit, for example, recently agreed with a district court holding that the Tucker Act is inapplicable when the “plaintiffs have no contract with the Government” and are suing, instead, “to enforce compliance with statutes and regulations” or with the Constitution.

Tone

Finally, it is worth noting the derisive tone of Judge Vyskocil’s opinion. This tone is established as early as the opinion’s second paragraph, which says the following about the NGO representing the plaintiffs:

With no apparent sense of irony, lawyers for an organization called “Protect Democracy” insist that a district court judge should order the Executive Branch immediately to restore the flow of taxpayer dollars to an elite university, which funding Defendants represent is inconsistent with the priorities of the duly elected President of the United States.

Later, Judge Vyskocil questions whether the AFT is appropriately representing its members. (“Query how many of the ‘1.8 million’ dues-paying members of the AFT, including nurses and paraprofessionals, believe its core functions include paying a cavalry of lawyers to argue the ‘transcendent’ importance of taxpayer funding for an elite university.”) She refers, as noted above, to the “eye-popping tuition bills paid by Columbia students, including the Jewish students who apparently paid for the privilege of being threatened with violence on their way to class.” Scoffing at the plaintiffs’ First Amendment claims near the end of the opinion, she declares:

Plaintiffs apparently fail to grasp that one possible inference from this state of affairs is that funding cuts were made and maintained not to punish speech but because, for example, it is not consistent with the priorities of the NIH under the current, democratically-elected President, to continue to fund Columbia’s research into the impact of climate change on the mental health of women in East Africa. See Witte Decl. ¶ 9. Declining to fund such research is not a First Amendment injury.

Passages like these would not be out of place on the White House X feed. Although we have focused on the opinion’s substance rather than its style, such rhetoric from a federal court—and the attitude it suggests toward parties seeking judicial review—is worrisome in its own right.

There are a great many human lives and livelihoods at stake in the funding withdrawals at issue in this case, and the plaintiffs have put forward more than enough evidence to show that the withdrawals violate both federal statutes and constitutional guarantees. Even if Judge Vyskocil would prefer not to reach the merits of this dispute, the litigants deserve far better than what she gave them. And even if Columbia manages to reach an agreement with the Trump administration to restore funding, it will not change the fact that the administration’s actions have been unlawful from the start.