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Keith E. Whittington & Charles Fain Lehman: Does Federal Involvement Safeguard or Endanger Free Speech on College Campuses?
00:33:51
On this episode of Future of Freedom, host Scot Bertram is joined by two guests with different viewpoints about whether federal involvement safeguards or endangers free speech on college campuses. First on the show is Keith E. Whittington, is the David Boies Professor of Law at Yale Law School and founding chair of the Academic Freedom Alliance. Later, we hear from Charles Fain Lehman, fellow at the Manhattan Institute and senior editor of City Journal. You can find Keith on X @kewhittington and Charles at @CharlesFLehman. Both have written essays at The Dispatch on this topic. Whittington’s can be found here while Lehman’s can be found here.
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- [00:09]
Scott Bertram
Welcome to FUTURE of Freedom. I'm your host, Scott Bertram. Future of Freedom is a production of Franklin News Foundation. To support this show, go to franklinnews.org donate. We bring you interviews today from different sides of the debate over whether federal involvement safeguards or endangers free speech on college campuses. In a little bit, we'll be joined by Charles Fain, layman fellow at the Manhattan Institute and senior editor at City Journal. First, we talk with Keith Whittington, David Boies professor of law at Yale Law School, founding chair at the Academic Freedom Alliance. You can also find him on X Ewittington, and also has recently written an essay over at the Dispatch on the topic we'll discuss today. Keith, thanks so much for joining us.
- [00:58]
Keith Whittington
Thanks for having me.
- [00:59]
Scott Bertram
On the topic of what's happening on our college campuses, specifically Columbia, in the essay that you write over at the Dispatch and the federal and Trump administration response to it. So you begin by outlining what's been happening at Columbia. A poor job, upholding its core mission of advancing and inculcating knowledge, allowing the political commitments of campus members to overshadow its imperative of welcoming individuals with diverse perspectives. So far, sounds like a Colombia problem. The second paragraph, though, says that Colombia's own internal investigations have revealed serious anti Semitism problems and that they've been inconsistent in its application of free speech policies and principles and implementation of anti discrimination and harassment rules. All right. Is there a difference between paragraph one and paragraph two, meaning when is it Colombia's problem and when should others outside of Colombia become concerned?
- [01:54]
Keith Whittington
Well, I mean, I think there's both going on. There are problems that ought to concern Columbia itself. They've had some internal problems. Columbia certainly is not unique, I think, and having some real challenges on their campuses. But it's also true that the federal government has an interest in what happens at universities. Most notably, the federal government many decades ago decided to extend civil rights laws to apply to higher education and universities. And that has consequences both for how students are treated on university campuses, but also how employees are treated on university campuses. And so there's some legitimate interest of the federal government making sure the legal obligations under the civil rights laws are actually complied with by universities. And that's at least the hook that the university that the Trump administration has mostly used when dealing with Columbia and some other universities, although sometimes there are suggestions that the government is worried about what's happening on these universities for more than just civil rights violations reasons.
- [03:08]
Scott Bertram
So the Trump administration has threatened to withhold 400 millionaires, withholding $400 million in federal funds. There is a March 13 letter that demands immediate compliance. Demands include the expulsion of students involved in anti Israel encampments, centralization of student discipline into the president's office. There were others listed in your essay at the Dispatch. So what's wrong with these demands? What's the problem with what the Trump administration is demanding of Columbia University?
- [03:36]
Keith Whittington
Well, notably, the Trump administration says this is the first list of demands, so it's not necessarily the entire list. But it is true that the initial letter that went to the university with the opening bid of negotiations included demands for quite a few changes, not only the ones you mentioned relating to student discipline, but also things ranging to changing the admissions process, putting a specific department into university receivership so that it will be more centrally managed and supervised by the administration, non title to usual departmental activities, increased concern over the admission of foreign students to Columbia University and like. So it's a pretty wide ranging letter with a wide ranging set of demands, many of which extend well beyond things that are closely connected to the kinds of protest activities we saw in the aftermath of October 7, although some of them have some connection at least to those activities. The concern is that these go far beyond what the federal government has traditionally regarded as necessary remedies for civil rights violations. There's a process that civil rights laws require for the federal government to go through in order to demonstrate that there are actually civil rights violations, in order to establish the necessity of certain kinds of remedies to those violations. The Trump administration is trying to circumvent all of that by threatening funding and then trying to get the university to simply negotiate with it for making reforms outside the normal process that the Civil Rights act might otherwise require. And as part of the consequence of that, they have not demonstrated the kinds of violations that law would normally require. But also it sort of, it's opened the door for the administration to say, well, there's a lot of reforms that we'd like to see take place under university campus, and we're not going to go through the process of demonstrating any of those are necessary to remedy the actual civil rights violations. But we are going to leverage the threat to funds in order to get you to do things like change your undergraduate admissions policy.
- [05:58]
Scott Bertram
You write that the ability to withhold federal funds from educational institutions found to have violated civil rights is an extraordinarily powerful tool. Do you think that what we've seen at Columbia meets that threshold?
- [06:14]
Keith Whittington
Well, I don't think that the way in which the Trump administration is approaching this has met the legal requirements is possible. The administration, if it went through the procedures that the federal government is normally expected to go through of actually engaging in investigation, having hearings, getting a response from the university and the like, that they could demonstrate that there are some violations, even if they could demonstrate that there are actual civil rights violations in place, connecting the dots between those violations and the kinds of proposals the administration wants in terms of reforms, I think would be very difficult under existing law. But part of what we've seen in Columbia's situation, and we're seeing at other universities as well at this point, is that these universities are extremely dependent on the receipt of federal funds for their current operations. They make up a significant portion of the university's operating budgets. And so if the administration is successful in being able to say, we can just cut you off entirely at a moment's notice, universities are extremely incentivized to do whatever it is the administration wants them to do in order to turn on the access, again, to federal funds. And that may include doing things that are pretty reasonable to do. But it also can do all kinds of things they're not very reasonable to do. They're actually contrary to the interest of the university in the long run and may be well beyond the legal authority of the administration to demand. And yet universities are going to want to do it simply in order to get the federal funds flowing again.
- [07:52]
Scott Bertram
You write, too, about Supreme Court rulings that strings on federal grants must be unambiguous so the recipient can exercise their choice knowingly. I know it's not necessarily your job to do so. Could you potentially, though, craft these strings that the Trump administration wants to attach in a way that would abide with Supreme Court precedent?
- [08:16]
Keith Whittington
Oh, I think you definitely could. I mean, which is true of a lot of the activities of the Trump administration in general. I think if they were a little more patient about it, a little more careful about it, they could accomplish a lot of what they're trying to accomplish through means that are more likely to stand up to judicial scrutiny. That's not true of everything the Trump administration wants to do, but certainly it's true of some things the Trump administration wants to do. Likewise, it is the case that the federal government has a lot of authority over what kinds of funds go into universities, how those funds are spent and the like. And if there's some things the administration could do through its own activities, simply through administrative action, that could constrain those expenditure funds a little more substantially, there's a lot the administration could do if it can get the votes in Congress to include greater statutory constraints on how these funds are used. And it's part, I think, of what universities have really been worried about. So while Columbia and now Harvard and other universities look at these sorts of demand letters and think, well, if we sued you, we might be able to win in court on the basis of the current demands, the universities also can look down the game tree and realize, but a year from now, if you were to actually follow through more carefully in developing these policies and maybe get Congress into the game, you could accomplish a lot of this anyway. And so maybe what we really need to do is negotiate with you and try to figure out how do we make you happy enough that you're not going to go through that more elaborate process and then try to accomplish what you're trying to accomplish now, but do it through more legally viable means.
- [10:01]
Scott Bertram
You write in this piece at the Dispatch about private universities and their First Amendment and academic freedom interests, setting up their own policies and priorities about scholarly and educational activities on their campuses. You mentioned earlier, though, just how much money is accepted by these universities from the federal government. To what extent should a private university that accepts such significant public funding still be considered private in the realm of academic freedom?
- [10:31]
Keith Whittington
So I think that's an interesting, important question, and one the courts may find themselves having to figure out to a greater degree. We have not really reconciled these competing sets of concerns. Universities have continued to insist that they have both an institutional interest in academic freedom as well as having individual scholars on their institutions with an interest in academic freedom. The federal government has continued to think of universities like Harvard and Columbia as private universities, and as a consequence, subject to a lot less regulatory oversight than might be true of public universities. Nonetheless, there's clearly some things the federal government can reasonably be engaged in. Part of what we're seeing now, though, is the administration is looking at a place like Columbia and recognizing that the medical research and scientific research at Columbia relies heavily on federal funding. And as a consequence, that's where all the leverage is. And so Columbia needs federal dollars to flow in order to do the kind of very expensive big science research that they do on one side of campus. On the other hand, the administration is very unhappy with what's happening in the humanities at Columbia University and lots of other universities. And the humanities don't rely very heavily on federal funding. So one of the open questions in the law and under federal policy is to what degree can you leverage the money that's going into the medical school in order to try to get the university to influence what's happening in the humanities. And it's not obvious that the federal government has any legitimate interest in trying to influence the humanities through this leverage. And it certainly impinges on what we've traditionally regarded as academic freedom principles of saying that scholars at universities should be able to pursue the lines of inquiry, of research and teaching that makes sense to them and that are consistent with their disciplinary missions, without politicians or the federal government or state governments coming in and saying, well, we don't like the conclusions you're reaching, we don't like the kinds of questions you're asking. You need to shut that stuff down. And the Trump administration now is trying to figure out to what degree can they use the university's dependence on federal funds to try to influence what kinds of research and teaching is being done on those university campuses.
- [13:04]
Scott Bertram
To what extent should conservatives, libertarians, be concerned, if the Trump administration is successful, about a potential future Democratic administration using this precedent to attack more conservative minded organizations across the country?
- [13:21]
Keith Whittington
Oh, I think they ought to be extraordinarily concerned. And this is a weapon that can be easily used for all kinds of different ideological and partisan ends and can be used at all kinds of targets. So it is true that conservatives feel less invested in higher education in particular these days. And so the particular targets the Trump administration is going after are not ones that Republicans and conservatives normally are all that concerned about. But you could certainly aim these same tools at other targets. And as the administration now is talking about doing things like stripping Harvard of its tax exempt status. And like you could easily imagine a Democratic administration saying, well, you know, we've got some conservative leaning organizations that receive federal funds in one form or another or that rely on certain tax benefits to one degree or another. And we would just like to cut all that off, either to try to eliminate those kinds of organizations entirely, or to make them more pliant and make them do things that we would like them to do. And so a sufficiently creative Democratic administration that was willing to be as aggressive as the Trump administration is being now could do an extraordinary amount of damage to institutions that conservatives and Republicans care a lot about as well.
- [14:53]
Scott Bertram
We've talked a lot about funding. That's where the conversation has led to this point. If we take the funding question out of the equation, and we still feel that there is a necessity for someone outside Columbia or these other colleges and universities to take action to protect Jewish students on campus, to protect order on campus, are there other tools that can be used?
- [15:17]
Keith Whittington
You can. And that is part of the interesting question about how important the funding issue really is. So these universities, as I said, are extremely dependent on federal funds just because now they make up a lot of the operating budget of universities that engage in significant scientific research. Universities that don't engage in significant scientific research tend to be much less dependent on federal funds. But that kind of science research is very expensive. And so universities that want to embark on it have found themselves in a situation where they're very reliant on federal funds. And as a consequence, there's just this extraordinary leverage that the government, at least in principle, has over universities, but even over institutions that don't have that kind of federal funding. It's entirely possible for the government to say, we still have an interest in your compliance with civil rights laws, for example. The tools are just a little more clumsy, a little less effective, ultimately. But universities and other institutions can still be sued for civil rights violations. You can get court orders against those institutions. One reason why congress tied federal funds to civil rights compliance was precisely because it was such an effective tool. And so part of the lesson of the 1960s in trying to desegregate the old Jim crow institutions in the south was precisely that it was very hard to get institutions, whether universities or.
- [16:56]
Scott Bertram
K.
- [16:56]
Keith Whittington
Through 12 schools, for example, to comply with court judicial desegregation orders. And so congress eventually said, well, we'll tie this to federal funds. And then, lo and behold, a lot of these resistant segregationist institutions very quickly changed their policies and practices in response to this threat to funding, because funding is just such a big stick. So that's true of not only private universities like Columbia, but it's also true of public entities like public schools. But we've also seen that play out in other kinds of contexts as well. So, for example, convincing state governments to reduce their to increase their drinking age to 21, for example, that was a function of the federal government threatening state highway funds going to states. And states were very quick to say, oh, well, you want us to change our turkey gauge in order to keep the funds flowing? Let us do that for you. And it was in that context that the courts weighed in and talked about, well, what are the limits here about how much the federal government can leverage its federal funds to try to put pressure on state governments, for example, in order to get state governments to do what they want to do. Courts haven't really been asked yet to weigh in very heavily on how that might play out in the context of universities. But we may soon see to what degree our courts want to take some logic of what they've elaborated in the context of thinking about state governments, for example, and now extend that to the context of, for example, private universities.
- [18:33]
Scott Bertram
Keith Whittington is David Boyce professor of Law at Yale Law School, founding chair of the Academic Freedom alliance. And you can find his recent essay over at the Dispatch. You can find him on X as Wellington. Keith, thanks so much for joining us here on Future of Freedom.
- [18:49]
Keith Whittington
Thank you.
- [18:50]
Scott Bertram
Now, to hear another side of the argument about federal involvement in free speech on college campuses, we talk with Charles Fane, Layman fellow at the Manhattan Institute and senior editor at City Journal. And you can read his recent essay on the topic we're about to discuss over at the Dispatch. He's on Acts 2. Charlesflam Charles, thanks so much for joining us.
- [19:12]
Charles Fain
Absolutely. Happy to be here.
- [19:14]
Scott Bertram
As I mentioned, you wrote over at the Dispatch about what's been happening at Columbia University and the Trump administration trying to hold back funds, $400 million or so. As we look at what's happened at Columbia, specifically maybe college campuses more generally across the country and areas, why has what you've seen met the threshold for some type of federal action from the Trump administration? Why is it not just say, an institutional problem for these universities?
- [19:46]
Charles Fain
Well, you know, I think if you look at a school like Columbia and Columbia is sort of an outlier, although you can find examples at many of the other universities being targeted by the administration. The short answer is that the administrations of these universities have totally abdicated their responsibility to enforce basic rules of civil conduct on campus. Columbia, again, is illustrative. What we are talking about with the rogue Gaza protests that happened at Columbia over the past couple of years is not just sort of students peaceably assembling and protesting. They were engaged often in illegal encampments, in trespassing, in vandalism. There's a high profile lawsuit now ongoing by several janitors who are trapped in the building that students took over on Columbia's campus, Hamilton Hall. They alleged that they were refuted, that the students would not allow them to leave and called them Jew lovers. So, you know, I think that there is a pervasive air of anarchy on campus and that if you publicly funded universities cannot provide basic expectations of civil order on their campuses, it's perfectly legitimate for the federal government that holds the purse strings to do something about it.
- [21:07]
Scott Bertram
You write in this essay that the Trump administration's actions are prudent, careful and look to be on solid legal ground. That last aspect is something that's in conversation. What makes you so confident that the Trump administration's demands are on solid legal ground.
- [21:25]
Charles Fain
So I think that there is some question about, in subsequent litigation, particularly with Harvard, about whether they're following the letter of the law in title six in revoking funding. That said, the fact that Columbia at least initially capitulated in writing made that kind of moot point, which is say that Columbia was pretty happy to go along with the story. The administration's argument was really that Colombia had created a hostile environment for people in national origin groups, which is to say Jews who are national origin group and Israelis who are national origin group that prohibited by civil, federal civil rights law. And I think that that is just sort of like demonstrably true that there are many statements made by Columbia students that cross the line from, you know, protesting the actions of the Israeli government to being openly hostile to people on the basis of their identity. That said, you know, I think that the deeper concern here for me is not so much those norms as the way in which Colombia allowed student groups to run rampant on campus in a way that transgressed from speech into actual substantive action that they did nothing about. But that also creates a hostile environment.
- [22:40]
Scott Bertram
Right. You call it, in fact, civil terrorism. Inside this essay, some things we've seen at various college campuses and includes the anti Semitism we've also seen on these campuses. What should be the consequences for a university allowing something that meets your threshold of what's called civil terrorism?
- [23:00]
Charles Fain
Yeah, and that's a, that's a phrase my colleague Tal Fort Gang has coined. He wrote about it in City Journal. And civil terrorism evokes this idea of people who try to make social change by inconveniencing, disrupting, or otherwise upsetting the social order. People who block bridges, as the categorical example, where these are very unpopular actions, but they try to accomplish change by being unpopular. They're trying to inconvenience everyone so much that to stop the behavior, people capitulate to their demands. And you can't tolerate that kind of behavior. Right. You cannot actually negotiate with terrorists. And so part of, you know, part of the problem with what Colombia has done, with what other universities have done, is, is set up an infrastructure designed to capitulate to these students, to give them infinite free passes, to let them continue to engage in disruptive behavior, to allow them get out of jail free. Cards bring no consequences. And if you do that, if you reward the behavior, if, like some universities, you say, yes, these kids have a good point, let's divest, then you are saying this strategy will work again in future and you cannot actually have successful civil discourse if you do that. And so as a result, what you have to do is the opposite thing. You have to fully deter the behavior and that means imposing consequences when it happens. You have to, you have to suspend or expel the students. You have to criminally prosecute, arrest and criminally prosecute the students who break the law. And you have to say, we are going to do this every single time until you cut it out. And I think that not only will work, but will work extremely quickly because students are actually highly rational and forward looking. Once you stop making it costly to disrupt the lives of your fellow students, once you start making it costly, they will cut it out real quick.
- [24:52]
Scott Bertram
Looking specifically at this letter sent from the Trump administration to Columbia, for example, there are demands included to change those activities and amend activities at Columbia before funding might continue with the United States government. But included in there is something like the centralization of student discipline in into the president's office. There is a mask ban that is included into those demands from the Trump administration. Even if you're on solid legal ground, when do these matters or do these matters cross past the line where the federal government should be concerned about these things? Are they beyond the scope of the interest of the federal government?
- [25:32]
Charles Fain
Oh, I mean, I think this gets back to the point that I made earlier about the federal government has to step in because the administration has failed. Look, the most recently installed president of Columbia, who is, I think the fourth in two, three years, has in fact moved to concentrate the disciplinary power in the president's office. I can, you know, New York State had a mask ban six years ago. They got rid of it during COVID So this is like the law. The point is, like, these are policies that ought to have existed. I don't think the feds should be intervening in governance even when, certainly when governance is going well, even when governance is going sort of poorly, but ultimately sort of within the bounds of reason. But like, there is a deep connection between these institutions and the federal government. They receive hundreds of millions of dollars. Many of their students are being paid for either directly or indirectly through the student loan program by the federal government. And so the feds have a legitimate interest in saying, like, there are certain baseline expectations of civil order that you have to impose on campuses and it is a failure of governmental function. That's not happening. You could say the state should be doing it, but A, the state isn't doing it. New York State is not interested, New York City is not interested, and B, the federal government has leverage that the city and state do not have. So I guess, you know, my view is like, it is possible to sort of do this abstract theory where it's like, do the feds have a role in regulating education? We could very easily say, no. I might prefer a universe in which there's basically no federal funding of higher education at all. We don't live in that universe. Right. The connection is already there. And if it's true, then there is no mandate to say, given that that connection is there, we're not going to do anything about it.
- [27:27]
Scott Bertram
I want to ask what might be a somewhat simplistic question, but why does the government even need these excuses if they don't wish to fund these universities? They don't want to give 400 million to Columbia. Okay, don't do it. Why is it not as simple as that?
- [27:43]
Charles Fain
It is that simple for issuing new funding. And it seems plausible, although there's some question about animus, it seems plausible that going forward, the federal government can refuse to disperse grants to anyone it chooses to, as long as it fulfills statutory obligations. The executive branch can do that. The harder question is clawing money back.
- [28:04]
Keith Whittington
Right.
- [28:04]
Charles Fain
What Trump administration is trying to do is say, all these grants that we've issued you, we are taking them back. There's procedure in the Civil Rights act and other federal laws for how you do that. It's not obvious that they've done the I's and crossed the T's. I would like to see them do that. That said, clearly there is some interest in getting compliance, but, like, yeah, it's about the clawback rather than the new funding.
- [28:29]
Scott Bertram
Okay.
- [28:29]
Charles Fain
They can certainly. Yeah, new funding.
- [28:31]
Scott Bertram
And if funding is one of the ways these carrots the federal government is using to entice universities to change behavior, what if they say, we don't need it, we don't want it, we don't want X number of millions of dollars in the government, and we're also not going to change our behavior or our activities. Are there other tools at the government's disposal to perhaps create those changes on these college campuses?
- [28:55]
Charles Fain
I mean, I think there are. There are fewer. There have been, you know, schools like Hillsdale or Wyoming Catholic or Grove City that don't accept federal funds are still subject to some federal laws, but there are many fewer laws that they are subject to. And I think that's a good thing. Right. Look, I would actually be very happy with an equilibrium where Columbia and Harvard and Yale are like, we're not taking federal dollars anymore, or we're going to very Carefully isolate them from the operation of our, the rest of our administration so we can do what we want. Like in many senses I think that that would be a preferable outcome and it would get rid of all of these thorny questions about what is it that you know, what is it? What is the proper role of the federal government. Everyone could do what they wanted. Nobody, I as taxpayer would not have to subsidize it. That seems like a perfectly desirable outcome to me.
- [29:47]
Scott Bertram
Are you concerned or should we be concerned, those on the right, conservative libertarians, about a future Democratic liberal administration using a precedent like this to go after tax exempt status of churches across the country or just going after other conservative organizations using the same mindset?
- [30:06]
Charles Fain
I mean, I guess my answer is like we've already gone down that slippery slope, right? Like the Obama IRS absolutely did this. We know they did this, right? Lois Lerner did it. It happens. Like this is not, you know, this is not opening a new, a new can of worms. The can of worms is opened. And you know, my, my other response is like there are relatively few conservative universities. I would personally not like to see the sort of broader tax exempt can of worms open. I think that's the new one. Although again it's not totally new. But I think that there are just fewer targets on the right than on the left. I think that the left is already willing to do this stuff so that, you know, the norms violation has already been done. And on the church's question, I suspect that there's a much stronger first Amendment argument because they have explicit carve out for purposes of freedom of religion. But it's just like, you know, you also can't let exercise power in destructive ways regardless of what the right does. And so I'd rather do the deterrent thing on the other side and say if you mess with us there will be consequences when we will power again as opposed to when we will power again. We will do nothing, which is not deterrent.
- [31:19]
Scott Bertram
The president, the Trump administration just recently discussed the possibility of reforming accreditation for colleges and universities to strengthen higher education. Are these issues that perhaps can be taken care of through accreditation changes and adjustments?
- [31:36]
Charles Fain
I think it would be great to have new accreditors. The upside accreditors propagate standards that schools have to follow. Those standards are often deranged. Creating more competition in the accreditation space would be good. My former colleague, my friend Aaron Sabarium has done a bunch of work on this at the Washington Free Beacon that encourage listen to check out. So like that is like this gets to the point of education pluralism from earlier that I think is true more broadly. You're never gonna you'll probably not successfully create make all accreditors be non woke. Like you maybe can sort of leverage them into doing some of that. But in many cases the best solution is just to try to move to an equilibrium where you have more competition. I would prefer to live in a world where like Hillsdale has way more prestige and leverage and is competing with Harvard. I would similarly prefer to live in a world where there are competing accreditors that impose a minimum viable standard and then colleges can pick and choose whether they want to adopt the work accreditor or not. I think that that is the most viable alternative versus like trying to get the accreditors in line and trying to get the schools in line through the accreditors.
- [32:48]
Scott Bertram
Charles Fain Layman is a fellow at the Manhattan Institute, also senior editor at City Journal. You can find his essay on this topic at the Dispatch and him on X. CharlesF Charles, thanks so much for joining us here on Future of Freedom.
- [33:04]
Charles Fain
Absolutely. Thanks for having me on.
- [33:06]
Scott Bertram
We thank both of our guests for joining us. Keith Whittington, David Boies professor of Law at Yale Law School and founding Chair of the Academic Freedom Alliance. Find him on X at K.E. whittington. Also Charles Fain Layman Fellow at the Manhattan Institute and senior Editor at City Journal. He's on Xarles F. Layman. Both Keith's and Charles essay can be found at the Dispatch. To find additional episodes of Future of Freedom, go to Apple Podcasts, Spotify, or wherever you get your audio. Thank you for listening to Future of Freedom, a production of Franklin News Foundation.