Edu-Chaos: The Civil Rights Regime Turns on Its Own

President Trump's use of civil rights laws to put pressure on colleges and universities is a classic "Rules for Radicals" tactic.

President Donald Trump has pushed colleges and universities across the country into severe consternation and distress with his threats to their federal funding and even their tax-exempt status in response to what the president claims are extensive civil-rights violations such as failures to protect students, staff, and visitors from antisemitic disruptions and the refusal to obey federal laws and Supreme Court rulings against discrimination.

Trump’s blanket removals of government funding from some institutions and his threats to do so at others are suspending much good work in these institutions, along with all the bad things Trump cites. The institutions have responded by arguing that Trump has no legal right to interfere with their operations and that doing so will destroy academic freedom.

Although Trump’s reprisals have been severe and expansive, history indicates that they are legal and will in fact restore academic freedom instead of destroying it.

The conflict is undoubtedly denying dedicated scholars the opportunity to do their work. Writing in The Wall Street Journal, self-described conservative Harvard professor James Hankins argues that the faculty members of his university “for the most part are serious scholars and scientists who just want to get on with their work” and that “the great majority of my colleagues don’t care for campus political activism.”

These scholars are now caught in a political crossfire not of their own making, a crisis “triggered by progressive activists, who are predominantly graduate students or members of the university’s vast diversity bureaucracy,” Hankins writes. This is the real source of the present conflict, says Hankins: “Many faculty wish that the fanatics would just shut up and take the target off Harvard’s back.”

Hankins is probably correct in his overall claim that the professors would prefer to be free of political constraints. The administrators, grad students, and activists, however, have increasingly settled on resistance to government accountability and intensified the conflict, Hankins writes:

[T]he Trump administration’s actions have weakened internal support for reform at Harvard and hardened its resolve to resist White House pressure. On Monday, Harvard announced that it was escalating the conflict by suing the government for violation of its civil rights. Right now, most of the university is hoping that the courts will stop the Trump administration’s threatened funding cuts, until such time as Harvard can reattach its umbilical cord to a federal government under Democratic control.

That, in my view, would be a mistake. Even if the courts do succeed in restoring Harvard’s federal funding, which is by no means certain, the university should think carefully about the hazards of accepting federal funding in an age of populism. My progressive colleagues were fine with federal influence on Harvard so long as it furthered what they saw as just causes, such as diversity and equity. Now that their research budgets are being held hostage to the demands of an unfriendly White House, left-leaning faculty are starting to appreciate anew the value of freedom from government mandates.

The administrators are bluffing, Hankins appears to suggest:

Harvard’s endowment is massive, around $50 billion, but most of it is tied up in donor-restricted funds, and it pays for only 37% of Harvard’s annual operating costs of $6.5 billion. For the rest, the university relies on tuition (20%), federal grants (11%), current gifts from alumni and other donors, and borrowing. Since Harvard’s response to the Hamas attack of October 2023 led to a donor revolt, it has increasingly resorted to the bond market to cover operating costs, and on increasingly unfavorable terms.

With those financial limitations, Harvard can hardly expect to prevail if Trump stays firm in his resolve, Hankins notes: “One inescapable truth in higher education is that he who pays the piper calls the tune.”

Harvard’s hope, and that of other universities in the same situation, is obviously that the courts will step in and block Trump’s actions. What Trump is doing, however, is neither unprecedented nor unconstitutional, notes Blaze News staff writer Joseph MacKinnon at Blaze Media:

Despite the alarmist rhetoric peddled by activists and Democratic lawmakers, the Trump administration's insistence that institutional beneficiaries of federal funding hold up their ends of the bargain—especially in the case of Harvard University—appears to be neither unlawful nor unprecedented.

While the Trump administration is less ambiguous in its language and more confrontational with its actions—which have in a number of cases already borne fruit—it is simply exercising muscles previously flexed by previous governments to ensure federally funded universities comply with federal civil rights law and public policy.

That is what was most clever about Trump’s wording of these communications with the universities: the use of civil rights laws, to which those institutions have had a powerful, longstanding commitment. It puts them on the defensive both in the court of public opinion and in the courts of law. Although these institutions will probably win in their handpicked lower courts, it will be exceedingly difficult for them to prevail once these decisions move up through the appeals courts.

MacKinnon provides multiple examples of the Obama and Biden administrations’ threats against universities’ federal funding and tax-exempt status. MacKinnon summarizes the result as follows:

The previous two Democratic administrations appear to have liberally threatened schools’ funding without the accompaniment of a chorus of doomsdayers warning of the coming peril and civilizational harms. Their threats also paved the way for those issued in recent weeks by the Trump administration.

Under this prompting from assertive Democrats and limp Republicans in Congress and the White House over a span of decades, the administrators of these colleges and universities gleefully transformed their institutions into virtual ideological monopolies while enjoying cover from the media and activist groups. As Northwestern University constitutional law professor John O. McGinnis writes at Law & Liberty,

While many on the left decry the Trump’s administration’s attempt to use its power under the Civil Rights law to reform higher education to its liking, they did not lodge similar complaints against the Obama or Biden administrations’ exertion of power under the same authority.

The use of civil rights laws against these universities has almost four decades of precedent, writes McGinnis:

It seems remarkable that seemingly antisemitic protests by undergraduates, such as those at my own university of Northwestern, could threaten the biomedical research funding of its medical school. But the structure of civil rights laws as applied to universities has long allowed the federal government to cut off funding to the entire university based on the wrongful actions of particular units or departments.

Ironically, the left, now alarmed by the federal government’s intrusive reach, bears direct responsibility for crafting the very legal weapons wielded against the universities it dominates. Almost four decades ago, progressive legislators demanded sweeping amendments to civil rights law, expanding federal oversight over higher education. The sequence of events reveals a cautionary tale of political hubris: progressive confidence that state power would reliably serve their ends overlooked the reality that governmental authority, once unleashed, recognizes no ideological master. Today’s circumstances starkly illustrate how expansive federal control over civil society, originally celebrated by progressives, returns to haunt its architects. The left’s outrage ought to focus not on this particular administration but on its own reckless empowerment of the state.

Congress and the progressive left are solely responsible for this. Two years after the 1984 Supreme Court ruling in Grove City College v. Bell that “Title IX applied only to the specific program that received federal funds,” McGinnis writes, Congress stepped in to give the federal government civil rights leverage over all programs of academic institutions, over President Ronald Reagan’s veto:

As a result of this change in law, all subsequent presidential administrations have enjoyed enormous leverage over universities. Any violation of Title VI or Title IX anywhere within the institution, as defined by an administration, puts a university at the risk of the loss of all federal funds in all its operations. Modern universities receive substantial federal funds. Virtually every university relies significantly on federal student aid. Research universities like my own receive substantial additional federal funding, particularly in biomedical research and in defense contracting.

The consequent transformation of “moral disagreements into winner-takes-all political battles” turned the nation’s institutions of higher education into ideological monoliths under pressure from Democrat presidents and neglect by Republicans. “Bureaucratic mandates by the government require more bureaucrats in the university who gain more power over university life, displacing the more varied perspectives and knowledge of the faculty,” McGinnis writes.

Thus the left created the power they now claim to despise: “Their shortsightedness has delivered into the hands of their opponents the very instruments of coercion they forged, vividly confirming an enduring truth: the power you grant government today will inevitably be wielded tomorrow by your adversaries,” McGinnis writes.

In pushing back against the monolithic higher-education establishment that these laws and policies created, Trump has unleashed chaos, uncertainty, and unrest throughout the nation’s colleges and universities. Trump has turned over a big rock, and what has come wriggling out is unsightly and terrified of the sunlight.

Nevertheless, there is some common ground on which to base an agreement. What does everybody say they want? For Harvard and other universities to do better, to restore academic integrity, the scientific method, and respect for human life as the central purposes of the university. These universities can hardly reject those goals, and if they do, they deserve to lose their taxpayer support.

Hence, any positive resolution will require the universities to recognize that federal funding has corrupted these recipients and emboldened them to turn away from the expressed interests of their customers, especially the students and their families, alumni, and private, voluntary donors. The government money also enables these institutions to pursue the preferences of administrators over those of the people at the heart of academic endeavor: the professors.

These administrators will not embrace fundamental changes, however beneficial, without a serious threat to their very existence. Trump is providing that. Hankins writes,

In the short term, unwinding the university’s dependence on federal funding risks creating a substantial deficit. But that funding itself comes at a steep price, not all of which can be measured in dollars and cents. It changes how the university operates and how power is distributed within it. Federal funding tends to increase the number and power of administrators, to turn faculty into their supplicants and to insulate the university from alumni opinion.

The universities have no leverage, though they may imagine otherwise and hope for rescue by the courts and the media. Declining birth rates since 2007 are about to push them off a fiscal cliff starting this fall, as the first fruits of a rapidly shrinking youth cohort reach college age. “[C]olleges and universities already collectively experienced a 15% decline in enrollment between 2010 and 2021, the most recent year for which figures are available, according to the National Center for Education Statistics,” NPR reports, and the decline is accelerating:

As fresh data emerges, the outlook is getting only worse. An analysis by the higher education consulting firm Ruffalo Noel Levitz, using the latest available census figures, now projects another drop in the number of 18-year-olds beginning in 2033, after a brief uptick. By 2039, this estimate shows, there will likely be 650,000, or 15%, fewer of them per year than there are now.

These findings sync up with another new report, released in December by the Western Interstate Commission for Higher Education (WICHE), which says that the number of 18-year-olds nationwide who graduate from high school each year—and are therefore candidates for college—will erode by 13%, or nearly half a million, by 2041.

On top of that, a smaller percentage of young people is choosing to go to college, NPR reports: “Among high school graduates, the proportion going straight to college has fallen, from a peak of 70% in 2016 to 62% in 2022, the most recent year for which the figure is available.”

That reflects a rapidly growing disenchantment toward the nation’s colleges and universities. “[I]n 2023, a Gallup poll found that only 36% of Americans had a high level of confidence in higher education (either “a great deal” or “quite a lot”),” reports College Consensus. “The number was down significantly since 2018 (48%) and 2015, when a majority (57%) trusted higher education to lead to success.”

Gallup’s chart illustrates the decline in trust:

Source: Gallup

Interestingly, Americans still hold community colleges “in high regard,” College Consensus notes: “51.8% of respondents mostly or highly trusted community college to lead to career and financial satisfaction.” Even online college receives more trust than higher education as a whole, at 41.4 percent.

As the incoming age cohort shrinks and fewer people trust these institutions, smaller and less-prestigious colleges and universities are closing, with more than one such shutdown each week on average in 2023, NPR reports.

It is a sad situation for those who love education. I have nothing but sympathy and concern for the multitude of true scholars in U.S. institutions of higher education. It is unfortunate and unfair that honest, hardworking scholars and professors should have to endure such uncertainty and the reckless destruction of their workplaces. It is not their fault, in the main.

These institutions have a long and luminous history of achievements. Unfortunately, government money has undermined their respect for their core missions, betrayed and reduced the trust of their customers and the American people, and placed them in bondage to politicians. Reversing all that is the only way for these institutions to survive, however distasteful may be the prospect of dancing to the taxpayers’ tune or passing up billions of dollars in funding—or, most likely, both.

Someone is going to have to break the money-forged bond between academia and government. I am convinced that it will be best for the colleges and universities to lead the process. If they don’t, they will have only themselves to blame for the destruction of these valuable institutions and the casting adrift of thousands of decent, hardworking scientists and scholars.