Balkinization: The Art of Replacing the Law with the Deal

The Art of Replacing the Law with the Deal

Joseph Fishkin

This week, the Trump Administration attempted to make universities an offer we can’t refuse. With great fanfare, the administration announced that a short list of prestigious universities were being invited to adopt a “compact” with the entire federal government. An extremely credulous mainstream press quickly reported that this was a new tactic: instead of the heavy stick of suspending and terminating federal grants in the guise of enforcing Title VI, the new approach was all carrot, “offering a competitive advantage to those that sign on.” “[T]he biggest difference” with the new approach, NPR opined, “is instead of threats, if you agree to these demands, it would provide a reward.”

Any lawyer—really, any careful reader—who makes it through even the first paragraph of the document can see that this is incorrect. The “compact” is quite explicit: Universities that do not sign on to this thing thereby “elect[] to forego federal benefits.” What benefits? Well, that same first paragraph lists quite a few specific “benefits”: “(i) access to student loans, grant programs, and federal contracts; (ii) funding for research directly or indirectly; (iii) approval of student and other visas in connection with university matriculation and instruction; and (iv) preferential treatment under the tax code,” which means 501(c)(3) status. This compact is a “reward” in exactly the same sense that it is “rewarding” to purchase protection from the Mafia. The compact is an open, explicit threat.

It nonetheless does represent a tactical shift on the part of the Trump Administration. The Trump team’s goal has not changed. They want an unprecedented—and flagrantly unconstitutional—degree of government oversight and control over American universities. So far they are having some trouble obtaining it. Their initial strategy, to roll up the sector from the top, starting with Harvard, through bespoke negotiated dealmaking with individual schools, has turned out to be slower going—and I suspect, simply more labor-intensive—than I am guessing they expected. (I use the rollup metaphor to evoke how a monopolist takes over a sector by buying out one firm after another, gaining more leverage over holdouts as they go. So far it has not worked.) Meanwhile, federal district courts have dealt a series of significant blows to the government’s ability to, for example, arbitrarily withdraw federal scientific research grants. So the administration is pivoting to a new tactic, which seems to be to roll up the higher ed sector from what you might call the upper middle. Instead of starting at the very top with the high-stakes confrontation with Harvard and working their way down, the new tactical approach is to start with whichever prestigious schools seem likeliest—for various reasons—to be amenable to the government’s overtures. It is no accident that many of the schools May Mailman’s team first approached about this “compact” have interim presidents, who are inherently weak, sometimes because a prior president was successfully forced out through political agitation by the right.

In the remainder of this blog post I’ll do two things at once. First, for the benefit of any journalists who read this, I think it’s important to lay out in a few simple bullet points what this “compact” does, and why the spin adopted by so many mainstream reporters is incorrect. In reality, the “compact” is a maximalist document, demanding a near-complete surrender of core academic freedoms of the university. It purports to give vast new leverage to the DOJ—if it sours on the university for almost any reason—to take away federal “benefits” to which the university and its faculty and students are entitled under federal law. Second, along the way, and at the end, I want to situate this “compact” in this administration’s overall approach to law. That approach is to try to sideline law itself—its regularity, predictability, transparency, and treating likes alike—and replace the law with “the deal.” By “the deal,” I do not mean what might come to mind to lawyers who read that phrase—a contract by which both sides are equally bound. Instead I mean a “deal” in the special Donald Trump sense: an agreement you and I sign that binds you to do what I want, grants me new leverage over you to demand more in the future, and does very little to bind me. That is what this compact is. It’s an offer all universities must refuse—and I will go out on a limb and predict, one that almost all will in fact refuse. Because unlike some of these credulous journalists, universities can read the fine print.

By far the most important text in the compact is its final paragraph, which reads:

Adherence to this agreement shall be subject to review by the Department of Justice. Universities found to have willfully or negligently violated this agreement shall lose access to the benefits of this agreement for a period of no less than 1 year. Subsequent violations of this agreement shall result in a loss of access to the benefits of this agreement for no less than 2 years. Further, upon determination of any violations, all monies advanced by the U.S. government during the year of any violation shall be returned to the U.S. government. Finally, any private contributions to the university during the year(s) in which such violation occurred shall be returned to the grantor upon the request of the grantor.

The effect of the agreement is to hang a sword of Damocles over any compact-signing university that is not there today. The “benefits of this agreement,” quoted above, consist almost entirely of things that the administration does not have the power to arbitrarily withdraw under federal law. The government has run into that problem repeatedly in recent weeks as federal trial courts enjoined the administration’s efforts to revoke visas on the basis of political speech and its efforts to “suspend” federal scientific research grants on the pretext of enforcing Title VI. The government cannot easily take away a university’s “preferential treatment under the tax code” (its 501(c)(3) status) without meeting a heavy burden of proof that clearly cannot be met with regard to any serious university. The government cannot even take away NIH or NSF funds a university has been granted—let alone student loans—without significant due process, unless perhaps it is lucky enough to find a federal court much more compliant than most have been so far.

The main function of the compact is to replace such provisions of law with “the deal”—that is, a piece of paper, signed by the university, that purports to entitle the Department of Justice, on the basis of its own “finding,” to take away all of these “benefits.” The point here is to turn “benefits” to which universities are now entitled under federal law into “benefits of this agreement” which the university agrees in writing to give the Justice Department the power to suspend for a period of a year or two years, on the basis of a DOJ “finding” of insufficient compliance—“willful[]” or merely “negligent[]”!—with any one of the myriad terms of “the deal,” all of which bind the university and none of which bind the federal government. (It is hardly necessary, but just to really sharpen that hanging sword, the paragraph above provides that if and when the Justice Department ever issues such a finding of noncompliance, the university is subject to the wild and ruinous demand that they “return[] to the U.S. government” of “all monies advanced by the U.S. government” (!) during that whole year, and must also return any money to private donors who would like their money back.) Any university that makes the grave mistake of signing the “compact” will obviously be extremely motivated to avoid such a DOJ “finding,” and will likely do whatever the government wants in regard to each area the compact covers, most of which are core areas of First Amendment-protected activity. In other words, this is the most sweeping pile of unconstitutional conditions that any American constitutional lawyer has ever seen in the wild.

That’s the point of the compact. No journalist should say anything about the compact without offering their readers, viewers, or listeners a clear account of what the point of it is. It is about control. Specifically it is about turning existing federal law, over which the administration has limited control, into terms of a “deal” that offers the government much more control.

The other point of the compact, of course, is to try to divide and conquer the university sector. To gain the leverage it wants, the administration desperately needs multiple universities to say yes. It would be a disaster for May Mailman and her team if no one joined this thing, the way no news organization took the Pentagon up on its similar “offer” of continued access to the Pentagon if and only if reporters would agree to say only what the Pentagon approves. To roll up the sector, the administration needs the agreeing universities to be ones that other universities would feel comfortable joining. It’s no good if you get, say, Liberty University to join. That would actually help those in academia who hope to persuade their schools to refuse to sign this or any similar “compact” by arguing that if you do, you are Liberty University. Similarly, if small, defenseless institutions such as community colleges joined, that would not be an especially persuasive starting point for rolling up the whole sector. You can see this calculation in the set of schools the university in fact chose to approach this week—Arizona, Brown, Dartmouth, MIT, Penn, USC, Texas, Vanderbilt, and UVA. These clearly represent an effort to find the intersection on the Venn diagram between schools with a good amount of prestige and schools that might be softer targets, sometimes because their strong leaders have already been deposed as a result of right-wing activism and replaced with figures who are weaker, more beholden to conservative donors or politicians, or both. Or so the government hopes.

Substantively, it is worth examining the various provisions of the deal apart from the main provision I just described—the “enforcement” provision—to see exactly what demands the administration intends to hold over any university it can get to sign. The important thing to understand about this document, which has apparently eluded many journalists, is that it is written deliberately to sound reasonable on a quick skim, by mixing the major demands with various anodyne requests for universities to do things that, in many cases, we already do (and which in many cases federal law already requires). That’s deliberate obfuscation. Here are some of the provisions of the deal that actually matter, beyond the most important one described above:

The compact demands that universities set about “transforming or abolishing institutional units” that “belittle” “conservative ideas.” I found it surprising that this was phrased as baldly as it was, with no fig leaf of parallel protection for liberal or progressive or any other kind of ideas—only “conservative ideas.” This provision is wrapped up with no trace of irony in a paragraph about promoting “academic freedom” and the word “belittle” is nestled next to the dark possibility that institutional units—that is, academic departments and schools—might “spark violence against conservative ideas.” I think we can all agree that that would be bad. Even to quote these words is to begin to descend into a hall-of-mirrors narrative of partisan grievance.

The compact demands that universities prohibit and punish “support for entities designated by the U.S. government as terrorist organizations.” This has two purposes, I think. First, it is about “Hamas.” But not the actual organization in the Middle East. As the recent district court decision by Judge Young in AAUP v Rubio explains in compelling and granular detail, the Trump administration has a distinctive pattern of falsely characterizing ordinary political speech of a pro-Palestinian kind as “support for Hamas.” This provision of the compact would ensure that if May Mailman and the DOJ deem pro-Palestinian activists “Hamas supporters” (a claim that Republican politicians, as well as the DOJ, make constantly), then a university allowing those activists to speak violates the compact. Second, it is about “antifa.” Notice that the sentence does not specify whether the “terrorist organizations” are international or domestic. President Trump recently “designated” “antifa” a “domestic terrorist organization”—a proclamation whose abject lack of any legal effect was painfully obvious to lawyers. Well, this compact would give that designation a legal effect: universities would be required to suppress speech that the DOJ deems “support” for “antifa.” And of course, since “antifa” is more of an idea than an organization, universities will have to proceed under a cloud of uncertainty about exactly what May Mailman or some other DOJ lawyer will deem “support” for “antifa.”

The compact demands that universities adopt the government’s definition of “male,” “female,” “woman,” and “man.” This part is surrounded by other sentences about women’s locker rooms and sports, which is a political smokescreen that succeeded in convincing many journalists that those areas—the parts of anti-trans politics where the GOP and the Supreme Court majority feel they have the political upper hand—are the topic here. But read carefully: the scope of the imposed definition is unbounded. The DOJ could certainly “find” a university noncompliant because of health care provided in its hospital system to transgender patients, speech in the classroom by faculty members about transgender topics, failure to contradict or discipline student groups asserting a different view of gender, or much else.

The compact makes an extremely intrusive demand about faculty hiring: universities must obtain, to the DOJ’s satisfaction, “a broad spectrum of viewpoints” not only in the university as a whole, but “within every field, department, school, and teaching unit.” It does not take much imagination to understand that this means aggressive affirmative action for conservatives (and only for conservatives) in fields where the DOJ might view them as underrepresented, from African-American Studies and anthropology and art through the rest of the alphabet.

Universities must “screen out” foreign students on the basis of viewpoint, specifically screening out those “who demonstrate hostility to the United States, its allies, or its values.” This may prompt some gallows humor regarding the unusually tricky question of who America’s “allies” are these days (when the President himself demonstrates hostility to many of the countries one might have named over the past 75 years). However, there is obviously one specific ally in particular that this provision is about. This provision is an additional lever by which DOJ can demand crackdowns on speech “hostil[e]” to Israel. With respect to foreign students, this provision of the compact dramatically moves the goalposts for crackdowns on pro-Palestinian speech. Instead of needing to claim that such speech is antisemitic (which is often a stretch, particularly given the large number of Jewish students among the pro-Palestinian speakers), once a university signs this compact, the DOJ could find it noncompliant for not punishing or insufficiently aggressively punishing speech that is merely “hostile to Israel.” (The compact also would require universities to engage in the viewpoint discrimination at an earlier stage, when admitting students in the first place, in addition to on campus.)

Universities must anonymously poll their students, faculty and staff each year about compliance with the compact. Given that most faculty, staff, and students at almost any university will vigorously oppose the entire compact, this might seem a bit odd. But I suspect that the point is to create the possibility of anonymous accusers among subgroups within the students, faculty, and staff. For instance: are conservative students telling the anonymous survey that the university is shirking its obligations under the compact? If so, the DOJ could issue a finding that the school out of compliance. Thus, the point here is to put university administrators in fear of not pleasing and obeying an anonymous but highly empowered favored subset of their students.

In a section labeled institutional “neutrality,” universities must put policies in place 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.” There is an ambiguous but real degree of wiggle room in the compact, allowing university employees to speak in a “personal capacity” about public matters. But the clear point of this provision is to muzzle the First Amendment rights of any university “representative,” blocking university leaders in particular from participating in any debate in the public sphere. That is part of a broader project of forcing universities to retreat from the public sphere.

Universities must agree to financial conditions that might appear on the surface to a credulous reader or reporter to improve college affordability, but in reality amount to defunding the work of the university, especially the humanities and social sciences. To see this, you have to situate the “compact” within the rest of the administration’s higher education policies. Tuition everywhere is high. To freeze tuition while reducing Pell grants, student loans, and loan repayment assistance, does not make college more affordable—quite the opposite—but it does deal a blow to universities’ finances. At the very wealthiest universities (>$2 million per student endowment), the extra requirement that the university make tuition free for “hard science” majors makes it particularly obvious that the goal here is to defund universities overall while depopulating the humanities and social sciences in favor of the natural sciences. (Luckily for the future of academic freedom, this requirement also makes it completely unworkable for the wealthiest universities to sign the compact.)

With regard to affirmative action, which the Supreme Court has outlawed, universities signing the compact must agree to hand over granular data to the federal government that would allow the DOJ to punish any university that appears to show any disparity in SAT/ACT scores between students on the basis of race. This opens the door to potentially crushing sanctions—the full set of them—for a university that engages in even the forms of purely class-based affirmative action that are legal under Supreme Court caselaw, but under threat from this government. The reason is that any time a college reaches out to find disadvantaged students with substantial potential but limited educational opportunities, that group of students will differ from the overall college population in two ways: they will have somewhat lower SAT/ACT scores and they will be somewhat more demographically diverse. (This doesn’t deserve a separate bullet point but the compact also aims to casually elevate the right-wing-activist driven Classical Learning Test (CLT) as an equal alternative to the SAT and ACT.)

Universities must agree to do a lot of other things that are in most cases already required by federal law. In addition to not engaging in affirmative action, for example, universities must be fair in their disciplinary procedures with respect to students’ race and sex. Such provisions requiring universities to do things law already requires are partly a ruse, aimed at producing the kind of journalistic coverage the rollout of this compact in fact got, which was that much of the document looked pretty anodyne and mainstream. But there is also a second, deeper purpose. By bringing these existing obligations inside “the deal,” the government attempts to gain new power to enforce these existing obligations through unilateral DOJ findings—by threatening the full suite of far-reaching sanctions outlined in the compact. Violating “the deal” is potentially a lot more consequential for a university than violating the law.

This post is long enough, and at this point I think the distinction between the law and “the deal” is clear enough. The proposed “compact” for universities is similar in a key respect to this government’s actions across many areas of law and policy: it is replacing the regularity and fairness of law with highly discretionary systems that ensure all sorts of entities and institutions will face the government from a subservient position, as supplicants in need of largesse. A small example is what the Trump administration recently did with H-1B visas: suddenly introduce a $100,000 fee, but also, the power to waive that fee based on standards that are as vague and unreviewable as possible, creating a huge and unbounded sphere of discretion. Instead of legal rules, business who wish to hire H-1B workers will now need to supplicate themselves to President Trump and hope they can close a deal. A much larger example is the administration’s approach to tariffs, which is not simply to raise tariffs, but to create large new systems of discretion and exemption that maximize the government’s potential ability to command and control both foreign countries and individual firms and tariff-payers who might wish for exemptions and favorable treatment.

Under law, the President’s friends and his enemies are equal; not so under “the deal.” Thus, when this administration wants to control institutions whose independence it finds troublesome, its go-to strategy is to attempt to move the interaction between those institutions and the government out of the realm of the law and into the realm of “the deal,” where normal rules do not apply. This is why, for all the interesting comparisons to various European authoritarian rulers of the past, I have always found the most important critical comparison for Trump’s vision of American government to be the present-day Middle Eastern emirs and kings for whom Trump personally has such obvious admiration and affinity. Universities and other independent institutions whose core functions depend on freedom of speech and association generally sit very uneasily in such regimes.

Universities’ only proper response to this “compact”—and to May Mailman’s dangerous invitation to negotiate further, by way of providing “feedback” on the initial draft—is to offer absolutely nothing. There is no revised version of this compact that retains its core enforcement mechanism that would be even remotely compatible with the independence of universities and their continuing vitality as venues for free speech and free inquiry.

However, I do see some significant signs of hope in the fact that the administration had to pivot to the compact strategy. I think it is becoming clear that the first effort—start with Harvard and work down from there—has run into some roadblocks. Harvard must continue to stall and hold the line.

The key thing to understand about the underlying power dynamics of the present moment is that the government does not actually have the capacity in personnel or time to successfully negotiate a bespoke “deal” with every university in the country. It will not happen. And so all universities have to do now is do nothing—no accepting the compact, no counter-offers, nothing—and the government will be left with no more power to coerce and control the First Amendment-protected activities of major American universities than it has today.

Posted 6:30 PM by Joseph Fishkin [link]