Ep. 241: The government’s money, the government’s rules?

Summary

Podcast Summary: So to Speak: The Free Speech Podcast Episode: Ep. 241: The Government’s Money, the Government’s Rules?
Release Date: April 23, 2025
Host: Nico Perino
Guests:

• David Raban: Distinguished Teaching Professor at the University of Texas at Austin School of Law; Author of Academic Freedom From Professional Norm to First Amendment Right
• Erwin Chemerinsky: Distinguished Professor of Law and Dean at the University of California, Berkeley Law School; Author of Worse than the Dangerous Fallacy of Originalism

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Introduction

In Episode 241 of So to Speak: The Free Speech Podcast, host Nico Perino delves into the escalating tensions between the federal government and major academic institutions in the United States. The discussion centers on the Trump administration's efforts to freeze federal funding and revoke tax-exempt status from prestigious universities like Columbia and Harvard, citing violations of civil rights laws and threats to free speech and academic freedom.

Background: Government Actions Against Universities

Nico Perino opens the episode by outlining recent governmental actions targeting universities:

• Funding Freezes: The Trump administration has moved to freeze federal funding at Columbia University ($400 million) and Harvard University ($2.2 billion), with potential additional measures including revoking Harvard’s tax-exempt status and cutting $1 billion from its health research funding.
• Legal Challenges: Harvard has sued to reverse the funding freeze, claiming it is both statutorily and constitutionally unlawful.
• Scope of Investigation: Over 60 universities are under investigation for alleged violations of civil rights laws, particularly Title VI, which prohibits discrimination based on race, color, and national origin.

Legal Framework and Constitutional Concerns

Erwin Chemerinsky raises critical legal points:

• Procedural Violations: He emphasizes that the administration bypassed required legal procedures, such as providing notice and hearings, and failing to notify Congress as mandated under Title VI.
• Constitutional Implications: The government's actions infringe upon the First Amendment by punishing universities for speech allowed under their academic freedom. Chemerinsky asserts, “Punishing universities for speech that they allowed under the First Amendment... has constitutional consequences” (04:30).

David Raban concurs, referencing the landmark Supreme Court case Sweezy v. New Hampshire (1957), which recognized academic freedom as a First Amendment right. He states, “government interference in the courses the university can offer... infringes on the rights protected by the First Amendment and academic freedom” (07:07).

Title VI Violations vs. First Amendment Rights

The conversation navigates the delicate balance between addressing civil rights violations under Title VI and protecting academic freedom:

• Title VI Enforcement: The administration's justification hinges on alleged discriminatory practices, such as hostile environments for Jewish students. However, Chemerinsky points out the absence of findings of deliberate indifference necessary to substantiate these claims (06:47).

• First Amendment Protections: Even though Title VI addresses civil rights, Chemerinsky and Raban argue that the broad governmental interference transcends mere enforcement of civil rights, venturing into unconstitutional control over academic and administrative decisions within universities.

Government Demands and University Responses

Nico Perino details specific governmental demands, such as:

• Columbia University: The imposition of academic receivership over the Middle East Studies department.
• Harvard University: Implementation of viewpoint diversity requirements, including banning political litmus tests in admissions.

Chemerinsky explains why these demands are problematic:

• “The federal government is trying to control the speech on campus... This has nothing to do with remedying the alleged violation of Title VI” (08:19).

Raban adds that decisions about curriculum and faculty hiring should remain within the university, not dictated by external government mandates (07:50).

Viewpoint Diversity: A Shared Goal with Disputed Means

The guests converge on the importance of viewpoint diversity in academia but diverge on the methods to achieve it:

• Chemerinsky: Supports ideological diversity but opposes using ideology as a criterion in hiring or admissions. He emphasizes that “we can't use the viewpoint of people in choosing who to hire or not hire” (24:27).

• Raban: Advocates for considering ideological differences as one factor among many in admissions and hiring, comparing it to how race is considered. He believes in intentional diversity without government imposition (25:20).

Comparison with Title IX

Nico Perino draws parallels between the current Title VI enforcement and past Title IX controversies related to sexual harassment policies under the Obama and Biden administrations. However, Chemerinsky and Raban distinguish the two, noting that the scale and directness of the Trump administration's actions are unprecedented and more severe (37:55).

Tax-Exempt Status and Constitutional Limits

The discussion shifts to the Trump administration's threats to revoke tax-exempt status of universities, such as Harvard:

• Chemerinsky clarifies that the President lacks authority to unilaterally revoke tax-exempt status, which requires legislative action (40:50).
• Raban further explains that using tax status as leverage for ideological conformity is constitutionally unsound, reinforcing that such measures stray beyond permissible governmental control (41:03).

Future Implications and Institutional Responses

Looking ahead, the guests speculate on how universities might respond to ongoing governmental pressures:

• Raban: Predicts universities like Harvard will resist constitutional infringements through legal challenges (46:16).
• Chemerinsky: Expresses concern over the potential setbacks in essential research due to funding cuts but remains hopeful that universities will stand firm on academic freedom (47:39).

David Raban opines that capitulating to governmental demands would undermine core academic freedoms, labeling the current situation as “probably the greatest threat to academic freedom in the history of our country” (48:23).

Impact on International Students and Campus Climate

The podcast highlights the chilling effect on international students:

• Chemerinsky: Points out the fear among international students regarding visa revocations and the lack of due process, which exacerbates anxiety on campuses (49:13).

Legal Recourse and Supreme Court Involvement

Chemerinsky anticipates that cases like Mahmoud Khalil and tensions arising from Students for Fair Admissions will escalate to the Supreme Court, challenging the administration's overreach (52:31).

Conclusion: Defending Academic Freedom

The episode concludes with a unified stance against governmental overreach:

• Chemerinsky: Emphasizes the fundamental importance of resisting constitutional violations, likening the current government actions to McCarthy-era intrusions but more severe in scope (48:26).
• Raban: Reinforces the necessity of upholding First Amendment rights within academic institutions (48:15).

Key Takeaways

• Legal Overreach: The Trump administration's efforts to control funding and impose ideological conformity on universities violate procedural and constitutional protections.
• Academic Freedom: Protecting academic independence is paramount, and governmental attempts to dictate university governance threaten foundational First Amendment rights.
• Viewpoint Diversity: While ideological diversity is essential, it must be fostered internally within universities without external mandates that compromise objectivity and fairness.
• Future Legal Battles: Anticipate significant legal challenges, potentially reaching the Supreme Court, to address and rectify these overreaches.

Notable Quotes

• David Raban: “This is probably the greatest threat to academic freedom in the history of our country.” (00:00)
• Erwin Chemerinsky: “Capitulating to a bully only makes things worse.” (04:13)
• David Raban: “Justice Frankfurter... emphasized what he called the four areas of academic freedom... Who shall teach, what shall be taught, how it shall be taught, and who shall be admitted to study.” (09:35)
• Chemerinsky: “The federal government is trying to control the speech on campus... This is putting the universities, universities at existential risk.” (08:19)

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This episode provides a comprehensive examination of the intersection between federal authority, civil rights enforcement, and the sanctity of academic freedom. By featuring esteemed legal scholars, So to Speak underscores the critical importance of resisting unconstitutional intrusions to preserve the integrity and independence of higher education institutions.

Transcript

[David Raban]

This is probably the greatest threat to academic freedom in the history of our country.

[Nico Perino]

Even greater than the McCarthy era?

[David Raban]

I think so, because it's broader.

[Erwin Chemerinsky]

Oh, I completely agree with that. My hope is that they're going to.

[David Raban]

Fight the government at the risk of losing the money.

[Erwin Chemerinsky]

There is a risk of losing the money, but the alternative is to give up your core academic freedom. The reality is, capitulating to a bully only makes things worse.

[David Raban]

Somewhere I read of the freedom of speech.

[Nico Perino]

You're listening to so to Speak, the free speech podcast, brought to you by fire, the foundation for individual rights and expression. Welcome back to so to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. By now, I'm sure you've heard about the Trump administration's effort to freeze the federal funding of a number of universities, including 400 million at Columbia and 2.2 billion at Harvard. Additionally, at Harvard, the administration is reportedly looking to take away its tax exempt status and possibly $1 billion in funding for health research. Yesterday, Harvard sued to reverse the funding freeze, arguing that the freeze was unlawful both statutorily and constitutionally. Now, the justification for the administration's actions against the universities are mixed. For example, in one letter to Harvard, the the administration writes that the school failed to live up to both the intellectual and civil rights conditions that justify federal investment. Meanwhile, on Truth Social, President Trump said the school is a joke that teaches hate and stupidity and is unworthy of federal funding. Our guests today are two professors who signed onto a statement by a group of 18 law professors who opposed the administration's funding threats at Columbia on free speech and academic freedom grounds. At the time of their statement, Columbia, of course, was the most prominent university being targeted. And since then, Northwestern, Cornell, Princeton, and Harvard have also had their funding revoked or suspended. And nearly 60 other colleges and universities are under investigation with their funding hanging in the balance, allegedly for violations of civil rights law. Our guests today are David Raban. David is a distinguished teaching professor at the University of Texas at Austin School of Law, and his most recent book is Academic Freedom From Professional Norm to First Amendment Right, that was published last year. Professor Raban, welcome onto the show.

[David Raban]

Thank you for having me.

[Nico Perino]

Also joining us is Erwin Chemerinsky, who is the distinguished professor of Law at the University of California Berkeley Law School, as well as the school's dean. His most recent book is Worse than the Dangerous Fallacy of Originalism. Erwin, welcome onto the show.

[Erwin Chemerinsky]

Delighted to Be with you.

[Nico Perino]

So we at FIRE have been doing a lot of messaging around the government's demands at Columbia, at Harvard, at a number of these other schools. And the resounding response that we get is it's the government's money, so it's the government's rules. Erwin, maybe I'll start with you. What is wrong with that premise is.

[Erwin Chemerinsky]

Wrong as a matter of law and wrong as a matter of the Constitution. To start with the law, there's procedures that have to be gone through before cutting off funds. There's the notice and hearing of finding a fact to violation of federal law. There's the 30 days notice to both houses of Congress if money is cut off under Title vi. None of this has been followed. Also, there are substantive standards. You can only find that a campus has violated title via with regard to civil rights violations if it was deliberately indifferent. There have been no such findings. Funds can only be cut off for the parts of the program that were deemed to violate federal law. Here the money has been cut off indiscriminately. All of this is a violation of federal law. Beyond that, it's a violation of the First Amendment. What's going on here is punishing universities for speech that they allowed under the First Amendment to punish them for not restricting speech has constitutional consequences. And finally, in terms of the government's money, the government could do what it wants. Actually, it's Congress that can set conditions for federal funds, and the Congress hasn't here set conditions. It's the administration on its own. I think that this is all just a pretext on the part of the Trump administration to try to exercise more control over universities.

[Nico Perino]

Professor Raban, do you see it the same way?

[David Raban]

I do. And I would add that in the first Supreme Court decision that recognized academic freedom as a First Amendment right, that was Sweezy versus New Hampshire in 1957, the court emphasized the importance of protecting the academic life of universities from intrusion by the government. That's the key theme. It's the foundation for the First Amendment right of academic freedom.

[Nico Perino]

Yeah, well, the argument on the other side is going to be that there was unlawful discriminatory harassment against primarily Jewish students, which violates Title 6 of the Civil Rights Act. Things like building occupations, encampments, for example, which critics argue is unlawful, doesn't constitute protected speech. But you have First Amendment rights advocates, free speech advocates coming in and say, no, what doing to Harvard, what they're doing to Columbia violates free speech principles. These are private universities not bound by the First Amendment. But as Institutions, they do have first amendment rights. Where does that argument go wrong?

[Erwin Chemerinsky]

Let me say two things. First, Title 6 of the 1964 Civil Rights act says recipients of federal funds can't discriminate on the basis of race. It's going to include ethnicity. And it says that if there's a hostile environment, the school cannot be, quote, deliberately indifferent to it. Schools are not held responsible for all the speech that goes on in campus. It's unrealistic. The standard is deliberately indifferent. Now, of course, there's been no findings of fact that Columbia or Harvard, any of these universities, were deliberately indifferent. Also, I think, realistically, if you look at what Columbia did, it's hard to say they were deliberately indifferent. So I think under title six, you've got, as I said, not following proper procedures, not meeting the legal standard, cutting off funds from parts of the university that had nothing to do with any of this, like the medical school. But then you get to the Constitution. It's true, of course, that the first Amendment doesn't apply to Columbia, but the government can't punish Columbia for its speech or the speech that it allows for the government to punish. Colombia does implicate the First Amendment.

[David Raban]

So I would say that government interference in the courses the university can offer, the people the university can hire, has nothing to do with protecting against antisemitism. So, totally apart from the title six problems that Erwin mentioned, I just want to say one other thing.

[Nico Perino]

Yeah, sure. Maybe.

[David Raban]

Erwin, I'm not sure this is a correction or modification of what you said. It's true that the first Amendment only applies to state action and that Columbia is a private university. The first Amendment does not apply to the interaction between Columbia University and its own professors and student body. But if the government acts against a private university, that violates the private university's first amendment right to academic freedom, which the courts have frequently recognized. I just want to emphasize the first Amendment applies to private universities as well as public universities. When it's a question of the state interference interfering with the educational life of the university.

[Nico Perino]

And how has the state done that? In the case of Columbia and Harvard, I know it demanded essentially that the Middle east studies department at Columbia be put under academic receivership.

[David Raban]

Well, that's a good example. That's a good example.

[Nico Perino]

Well, and at Harvard, you have this demand that it implement this viewpoint diversity requirement. How that would be implemented, what viewpoint diversity means subject to all these various audits from the government that would, I assume, implicate the First Amendment. Erwin, it looks like you want to.

[Erwin Chemerinsky]

Get in for exactly the reasons that David said this is the federal government trying to control the speech on campus. If you look at the letter that was sent to Harvard University, it says, among other things, there's going to be oversight of faculty hiring, student admissions, governance, that they're going to make sure that there's viewpoint diversity. That's the federal government regulating speech on campus. And as David points out, none of this has anything to do with remedying the alleged violation of Title 6. But all of this that we're talking about now would infringe the First Amendment if mandated by the federal government.

[David Raban]

Justice Frankfurter and his very influential concurrence in the Sweezy case, the first case in which the Supreme Court recognized academic freedom as a First Amendment right, emphasized what he called the four areas of academic freedom of a university protected by the First Amendment. Who shall teach, what shall be taught, how it shall be taught, and who shall be admitted to study. And the threats from the government to Columbia, to Harvard, to other schools interfere with those rights protected by the First Amendment and academic freedom.

[Nico Perino]

So how should the federal government have gone about the situations at Columbia and Harvard if it did want to investigate Title 6 violations? I assume it's do all the things that you listed out earlier, Erwin, but then let's say it has these findings effects it finds that non compliance existed. What changes could it make at these universities consistent with constitutional and statutory requirements?

[Erwin Chemerinsky]

But before you get there, I want to emphasize the words you said. If they wanted to investigate, it's not that they investigated, it's that they imposed punishments without notice, without a hearing, without findings of fact, without notice to Congress, without a conclusion of deliberate indifference and not limiting the remedy to the part of the program that discriminated. Now, obviously, if there was a part of Columbia University or any university that was violating Title 6, there could be remedial action taken. The idea would be to come up with a program for remediation that didn't involve cutoff of funds. Cutoff of funds rarely has happened and only as a last resort. Instead, what the Trump administration has done is as a first resort and with Columbia in making demands to Harvard that no university possibly could agree to.

[Nico Perino]

And David, what do you think the university or the administration could demand of these universities if it found they were out of compliance with Title 6?

[David Raban]

Well, they would have to stop what they're doing. That's out of compliance with Title 6, but that doesn't have any.

[Nico Perino]

Could they, for example, demand that these universities implement mask bans, for example? It's one of the Things that was in the demand letter to Harvard and to Columbia. The idea being that some of the unlawful occupations, some of the encampments, were facilitated by the anonymity of those partaking in them. Could it, for example, force these colleges and universities to adopt the International Holocaust Remembrance Alliance's definition of antisemitism, which the federal government has been forced to adopt through a Trump administration executive order which lumps within the definition of antisemitism some forms of anti Zionism? These are things that you see the Trump administration wanting on these college campuses, requiring of these colleges in order to remain consistent with Title 6, but that have made free speech advocates and First Amendment advocates a bit queasy.

[David Raban]

I first want to well, I think the definition of anti Zionism as antisemitism itself raises First Amendment problems that that definition violates First Amendment protection for speech on matters of public concern. What I want to emphasize most is your questions as to remedies under Title six. I would say have nothing to do whatsoever about the university's regulation of its own education. Decisions about who teaches, what shall be taught, who gets tenure. Those are decisions for universities, not for the federal government. And for the federal government to intrude in those decisions violates the First Amendment section. Title 6 is a separate issue.

[Erwin Chemerinsky]

I completely agree with David in answer to two things that you raise. First, in terms of masks, it's unclear right now whether or not a public university can prohibit masks or whether the government can require a private university to do so. The Supreme Court has said there is a First Amendment right to speak anonymously and arguably wearing masks is that. But there are some lower court cases that have upheld prohibitions of masks in the context of anti Klan statutes. The Supreme Court hasn't dealt with it. And we can certainly talk about from a First Amendment perspective, could a public university prohibit masks? Could the government require it? In terms of the IHRA definition, I want to agree with something David said. Parts of that definition are enormously troubling from a First Amendment perspective. So for example, part of that says to hold Israel to a double standard or a higher standard with regard to human rights is deemed anti Semitic. I strongly disagree. I don't believe saying that the United States should meet the highest standards with regard to human rights is anti American. I don't believe saying I want Israel to meet the highest standard of human rights is anti Semitic. And yet that's part of the definition. And my point here, which goes with David said, is how much the definition then is about restricting speech.

[David Raban]

I think the administration is Using this issue of antisemitism really as a pretext to interfere in the most fundamental ways with the educational work of universities.

[Nico Perino]

Let me ask this. Is there a way in which you can get that definition of antisemitism on campus through just this kind of subtle coercion? So, for example, Colombia has already adopted a definition of antisemitism that's more or less consistent with the IHRA definition. Harvard has also adopted the IHRA definition of antisemitism and in its lawsuits celebrates that it's adopted this definition of antisemitism and says that very few other colleges have adopted us. Look at this federal government. We are really trying to combat antisemitism on campus. And I have a hard time believing that Columbia and Harvard would have done this independently were it not for this government pressure, were it not for the federal government adopting the definition and saying, hey, you, 60 colleges and universities were coming after you, so get your act in order.

[Erwin Chemerinsky]

Not quite factually. Harvard did. So there was a lawsuit against Harvard in federal district court and it was a lawsuit for a Title 6 violation.

[Nico Perino]

Yeah, the custom bomb lawsuit. Yeah. But I think they settled that in part because they were worried about the federal government.

[Erwin Chemerinsky]

I don't know that speculation. This report denied Harvard's motion to dismiss around August of 2024, and Harvard settled that suit and Harvard adopted the IHRA definition of anti Semitism as part of that settlement. So that's just factually what happened. Whether they did that because of the Trump administration, I can't guess as to their motives.

[David Raban]

Also, private universities like Harvard and Columbia have more discretion in determining their own rules about whether antisemitism includes anti zionism than a public university does.

[Nico Perino]

Yeah, and I want to ask about the rules because part of the demand letters to Columbia and Harvard is also that they restructure their governance. So, for example, they want Harvard to reform its student disciplinary processes and procedures. They want investigations of certain faculty in certain departments. They want to bring the the disciplinary processes all under one roof. I think in the case of Columbia, the president would have ultimate authority as opposed to like a shared governance between students and faculty members. Does that implicate constitutional concerns? Erwin, I see you nodding your head.

[Erwin Chemerinsky]

Yes, of course it does, David. So well summarized from Sweezy. All of the areas that universities control as part of academic freedom, many of the things that you just enumerated would go directly towards that and give federal oversight and maybe federal control that's fundamentally at odds with academic freedom in the First Amendment.

[David Raban]

Even if there were a violation of Title 6, the remedy cannot be violation of constitutional rights to free speech, speech and academic freedom. I mean, it's Constitutional Law 101. But it's important to reiterate.

[Nico Perino]

Columbia kind of acceded to the government's demands. But then it sounded like the. The president of the university, in private conversations within the university community, was walking back their commitment to the government demands, or saying that the commitment to those demands wasn't what the reporting would suggest it would. And then she resigned. We have a new president at Columbia, interim president. But that president has also taken a firm stand in the wake of Harvard standing up to the administration and said, we're not going to let the administration come in here and dictate our governance, for example, or violate free speech and academic freedom norms. And amidst all of this, you have the federal government coming in and saying, oh, okay, so then we're going to require a judicial consent decree to ensure that you commit to these demands that we've made of you and that you've said you're willing to meet. How do you look at that whole situation and dynamic there? It seems like Columbia is a little bit more schizophrenic on these points than Harvard has been.

[Erwin Chemerinsky]

Well, first, Columbia did say that it was going to agree to a settlement, but then it got none of the $400 million back. And certainly that might have influenced Columbia's choice to realize that even if we get in, it's not leading to the money being returned. Second, I think one step that we've omitted is quite important. Is Christopher Eisgruber, the president of Princeton University, so strongly, coming out and saying that Princeton isn't going to exceed that what's being done by the Trump administration is illegal. Harvard filing its lawsuit yesterday. In the statement from the president of Harvard, my hope is that this is going to then lead to all of the universities being targeted saying this is illegal and unconstitutional. We're not giving in, we're fighting back.

[David Raban]

And I want to add, the president of my own undergraduate university, Wesleyan University, who's been out front on this from the beginning, and I give him a lot of credit.

[Erwin Chemerinsky]

Michael Roth.

[David Raban]

Michael Ross, with respect to Colombia, in my most kind of generous interpretation of what it initially did in its discussions with the government, I thought Colombia was trying to kind of kick the ball down the road a bit without agreeing to anything that would irreparably compromise their academic freedom, is that it would consider maybe asking someone inside Columbia to look at the Mid Eastern Studies program. That wasn't an agreement to change anything. Or to do anything that would be unconstitutional. It wasn't a heroic act for sure, but it wasn't a total cave. And I think part of what might have changed Columbia's behavior was that it realized that agreeing with the federal government, government was not going to work out. And the federal government was changing its conditions day by day. So I think they felt they tried and it didn't work. So that stiffened them up as well as what Chris Eisgruber did and Michael Roth.

[Nico Perino]

It seems to be a pretty sloppy approach from the federal government. You saw the New York Times reporting last week that the letter to Harvard was sent mistakenly. And then you had a Wall Street Journal report that said maybe it wasn't mistakenly, it was just sent a day early. So there is some confusion as to whether the precipitating letter that led to all these series of events should have been sent in the first place. But regardless, the administration seems to be doubling and tripling down on this letter. Erwin, you had mentioned that this was unlawful statutorily and constitutionally. I know lawyers don't like to say something's an easy lawsuit or a straightforward lawsuit, but do you see it that way?

[Erwin Chemerinsky]

I do. And I'll analogize here to the Trump executive orders against law firms. Three law firms, four law firms now have challenged it. Every district court to rule this includes judges who regard as liberal and judges conservative, have immediately said it's unlawful. I expect the same thing will be done in the Harvard suit or the others against the universities. Some of it is the sloppiness of how it's being done, to use your word. But some of it is how clearly they have not followed the procedures required by law under Title 6. They haven't met the legal standard. And in terms of the First Amendment, there's anything that's a slam dunk. It's what they're seeking against Harvard violating the First Amendment.

[David Raban]

I agree with Erwin on the slam dunk First Amendment point. And I want to point out that again in this original Sweezy case, the government, through the New Hampshire attorney general, asked Sweezy questions about the content of his visiting lecture at the University of New Hampshire. Did you advocate Marxism? Did you advocate the theory of dialectical materialism? And Sweezy maintained that the First Amendment protected him from having to answer those questions. And the Supreme Court agreed that was simply asking about the content. And you can't do that under the First Amendment. Now the government wants to dictate the content, which is far more intrusive than simply asking about it. And that's part of the reason I consider this a slam dunk. It certainly should be one.

[Nico Perino]

Many observers of higher education in recent years have been critical of higher education's lack of so called viewpoint diversity. And so when they read the federal government's letter to Harvard and its demands that it have more viewpoint diversity in its faculty and student body, they see this as perhaps a necessary, maybe ham fisted, corrective to a real problem. Do you both see viewpoint diversity in higher education as a real problem?

[Erwin Chemerinsky]

I strongly favor viewpoint diversity in higher education. I want my law school, my campus, to be a place where all ideas and views are expressed. How you get there becomes difficult. You can't choose to hire a faculty member or not hire a faculty member on the basis of their ideology. Imagine that we're doing a search and I've got to tell you, usually I hire faculty. I have no idea what their ideology is. But I couldn't say I'm going to favor hiring this person over another person because they're conservative and the other person's views are liberal. That would violate the First Amendment. As a public university, we can't, in admitting students, look to their ideology and say, oh, we have too many liberal students, so we're going to take conservative students instead, even though they have lesser credentials. So yes, I want there to be ideological diversity, but we can't use the viewpoint of people in choosing who to hire or not hire, who to admit or not admit.

[David Raban]

I want to say that I believe there has been a problem with lack of even academic viewpoint diversity on American campuses. I believe it's probably harder for a conservative to get hired at an American university than for someone who's not conservative. I don't believe it's as much of a problem as many people say, but it is a problem. But the answer to that problem has to be within the university being alert to the importance of having, I would say, ideological differences over academic matters within academic departments. The answer to the lack of ideological diversity in universities is not government takeover.

[Nico Perino]

And that's more or less what Harvard acknowledges in its lawsuit. It says it wants more viewpoint diversity at the university university, but it's not the government's responsibility to mandate viewpoint diversity. One question or I guess, challenge for institutions that do want more viewpoint diversity is how do you get more viewpoint diversity without also establishing a political or ideological litmus test in your hiring? Now, in the Harvard letter it bans litmus tests, but in the same breath mandates viewpoint diversity and also says that the school Harvard should deny admission to international students who are, quote, hostile to the American values and institutions inscribed in the U.S. constitution and Declaration of Independence. That seems to be a political litmus test. And we all debate all the time our national discourses about what actually are the values of the U.S. constitution and the Declaration of Independence. But how might one foster viewpoint diversity independent of federal government? Government demands in a way that doesn't put political litmus test, doesn't say, I want a conservative, therefore we're only going to search out for conservatives. Or is that how it has to be done? Has any academic squared this circle, so to speak?

[David Raban]

I think some academic institutions, I would say, including my own, have been attentive to diversity within the academic field, within law, in making appointments, which is a good thing, I feel there are certain academic schools maybe more associated with political conservatism. And apart from the association with a political ideology, I think it's good to have some people in law and economics, which may have more conservatives than other fields of law, just as it was good to have some critical legal studies. It's good to have academic diversity within a school. And sometimes that academic diversity lines up with broader political diversity. I think affirmative action for conservatives and for libertarians, perhaps libertarians and for just people with different views than the majority is a good thing. It's a healthy thing. It ought to be encouraged. It ought to be encouraged by the faculty, by the dean. It shouldn't be imposed by people from the outside, often whose reason has nothing to do with a belief in diversity but has to do with their own political ideology.

[Erwin Chemerinsky]

Erwin, I agree with the goal. I think I disagree with you about the means. I agree that the goal should be a faculty with ideological diversity. I agree in terms of a means, in terms of broadening the fields that you look at. But I would oppose affirmative action for conservatives if it means favoring a conservative or a liberal in hiring, or favoring a liberal over a conservative hiring. I don't think that we should be looking to ideology at all in making our hiring decisions. And I've got to tell you that apart apart from fields where you can tell the ideology from the writing, for most people we hire, say the corporate law field, I have no idea whether they're liberal or conservative. I just recently learned a colleague of mine who teaches in the business area is quite politically conservative, but I couldn't have possibly known that. You've got to also take in mind that part of what makes this difficult, and this is true with regard to student admissions, is self selection. We ask the students who are applying to Berkeley, what area of law they're most interested in? This year, of the students who have applied we admitted, 55% of them said that the thing they're most interested in is public interest law and social justice. 15%, the next largest, say they're interested in intellectual property. I think that because of Berkeley's reputation, there's a lot of self selection. Even though we pay absolutely no attention to ideology or race or sex in the admissions process.

[David Raban]

I would say, and Erwin, I guess this is where we disagree. If I were at Berkeley and saw that, I would say as a faculty member or as a dean. Gee, having a diversity of ideological views, including political views, provides for a healthy learning environment. And just as racial diversity is helpful to a learning environment as one factor among many. As Justice Powell said, I think ideological diversity among students, among faculty, promotes education. And therefore it makes sense not to make a decision based on ideology, but to take either academic or even political ideology into account among a pool of more or less equally competent people and use that as one factor among many. I think that's a good thing for education.

[Erwin Chemerinsky]

And I totally agree with you about the importance of ideology and the benefit of diversity. But the idea that somebody is getting hired and not hired because they're conservative as opposed to liberal, where somebody gets admitted or not admitted because they're conservative as opposed to liberal. And the Supreme Court and students with fair admission said the problem with the one factor analysis is that in instances, the one factor is going to be decisive. And I'm very uncomfortable having somebody's ideology determine who we hire or who we admit.

[David Raban]

I don't believe in it as one factor. It's one factor among many, just as race is one factor among many. Erwin, do you agree with affirmative action in student admissions based on race?

[Erwin Chemerinsky]

Well, of course, the Supreme Court has said it's impermissible. But yes, I would say that I would favor what the Supreme Court had said previously. And if we're going to do it for race, I wouldn't have any problem with doing it with ideology.

[David Raban]

But that's my only point.

[Erwin Chemerinsky]

I don't understand in light of students for fair admission, what I'm saying, why we're going to say we can't consider that factor of diversity. But ideological diversity is going to be a factor. And I guess the place where either we agree, disagree is I never would want to say in the end we've hired somebody or admitted somebody or not hired somebody or not admitted them because of their ideology and views.

[David Raban]

Even in part. Even in part.

[Erwin Chemerinsky]

Again, I would Want to know what we mean by. In part, I will stand by someone.

[David Raban]

Was very similar academic background in terms of the quality of their undergraduate major, how they did on their lsat, et cetera. But we're considering who to admit and at the margins. When it's a school that doesn't have diversity, we want to take this into account. I think that's a good thing. I think at Wesleyan, for example, I think, and this might have been Michael Roth's initiative, there were places reserved for people who had military background, not reserved. It was an attempt to recruit them. And there are all kinds of reasons for doing that, but one of them is they've had different life experiences and maybe different ideology. And it's a good thing for the student body to be exposed to that kind of background as well as to others. So I think, like, looking for people with a military background or graduates of community colleges, for example, who have a distinctive experience, those are things that the university should take into account.

[Erwin Chemerinsky]

We agree completely on that.

[Nico Perino]

So it sounds like we agree that we want more viewpoint diversity. How necessarily we get there. There's some disagreement around the edges. But we're also all in agreement then that the means by which the federal government is trying to effectuate viewpoint diversity at Harvard are unlawful and probably also misguided. Erwin, you brought up Students for Fair Admission, and this is a retort that I've heard to Harvard's case. Folks say that in that letter that was sent to Harvard by the federal government, it cites the violation of civil rights law. People online will say, well, didn't we learn that Harvard was violating civil rights law and Students for Fair Admission? So how can things that have found to have been unlawful in the past affect, for example, Title 6 compliance?

[Erwin Chemerinsky]

First, what's important to remember is that what Harvard did was in compliance with the law that existed at the time. Title 6 and equal protection. The Supreme Court and Students for Fair admission overruled 45 years of precedent in overruling, effectively, Grutter vs Bollinger, Fisher vs University of Texas at Austin Regents, University of California vs Bakke. So it's not fair to Harvard to say, because they were following the law as it was, but the Supreme Court overruled the law that Harvard had been doing something wrong. Second, if the concern is Harvard's admissions process relative to race, there is a remedy relative to that under Title vi. What the Department of Education was doing in its letter had nothing to do with that. And the remedies that the Department of Education was imposing in terms of faculty hiring, student admissions, governance, viewpoint proceeding had nothing to do with the issues raised in Students for fair Admission.

[Nico Perino]

And you also have to give the university, if I'm not mistaken, an opportunity to correct the non compliance before removing federal funding. So let's say, for example, the investigation found that they were discriminating against Asian students in their admissions processes. The remedy would be for them to stop discriminating against Asians to perhaps have a voluntary resolution agreement before they moved on to a funding freeze or a funding revocation. Is that correct?

[Erwin Chemerinsky]

That's correct. But it's also important to note that with regard to this, the district court made findings of fact that Harvard had not discriminated against Asian students. But you're absolutely right. Before funds can be cut off, there has to be an opportunity to correct.

[Nico Perino]

I want to ask if there is parallel or equal concerns surrounding what the Obama and Biden administrations did under title nine and what the Trump administration is doing under title six. Going back to 2011, the Obama administration sent out a Dear Colleague letter that defined sexual harassment broadly and that also made certain requirements of colleges and universities in their disciplinary proceedings where they are adjudicating alleged sexual misconduct. Things like it needs to use the preponderance of the evidence standard rather than clear and convincing or beyond a reasonable doubt that it has to use a single investigator model. It suggested not turning over certain evidence to respondents in these cases. Institutions like FIRE and others and many conservatives argued that this was unlawful not just statutorily because the administration was doing rulemaking through the Dear Colleague letter process as opposed to the Administration Procedure act case, but to the extent that they were also dictating how disciplinary processes must proceed and also mandating speech codes, that it was unlawful constitutionally. Now we at FIRE acknowledge and have seen that what the Trump administration is doing at Columbia and Harvard is different in scope, scale, and arguably severity as well. But they seem to be, at least in our minds, along similar paths, trying to use weaponized federal civil rights law to violate the individual autonomy and constitutional rights of these institutions and to the effect that these mandates also make demands on students or punish students, possibly their constitutional rights as well. Now, one of the things that I'm disappointed about is that all the conservatives who rallied around institutions like FIRE to oppose the Title IX mandates, many of them seem to be absent in the Title 6 context. And I don't remember any conservative institution making the argument that, well, it's the federal government's money, they can make whatever demands they want in the Title IX context. But I've seen that left, right and center right now in the Title VI context. So I'd love to get both of your perspectives to the extent you were following the Title 9 debate around any parallels or concerns that you might have had in that context and how you see it vis a vis this current moment.

[Erwin Chemerinsky]

To my knowledge, the Obama and Biden administrations didn't cut off funds from institutions here. We've got cutoff of $400 million from Columbia. We have a cutoff of $2 billion from Harvard. That makes it in kind different, I'll use your words of scope, scale and severity. It was also done through a Dear Colleague letter, which is quite different from acting without any advance notice. That said, I disagree with some of what the Obama administration had been doing with regard to Title ix, but I don't think it's in any way comparable to what we're seeing now.

[David Raban]

I agree. I do think it's important to recognize that the Obama administration also misbehaved in a different, lesser way to some extent procedurally, which I'm not that expert in, but also substantively in, for example, allowing requiring speech codes that would punish I was a protected speech under the First Amendment that some people find offensive or even hurtful. That speech is protected under the First Amendment. And that kind of speech was punished under many university speech codes, which are themselves unconstitutional much more often. Than not. And fire has been out front, hooray for fire for monitoring these speech codes and how they've been utilized, often unconstitutionally by universities. It almost seems sometimes like passive resistance on the part of universities in not applying the First Amendment to limit speech codes.

[Nico Perino]

And I do want to just clarify for our listeners who aren't familiar with Title IX. This is Title IX of the 1964 Civil Rights act that banned sex discrimination in federally funded education activities and programs. Title 6 is different in that it bans discrimination based on race, color and national origin and has been interpreted to expand to things like shared ethnicity, including antisemitism. So that's the distinction between Title 6 and Title 9. I want to close out this portion of the conversation before zooming out and asking you guys some big picture questions by talking about the threats from the Trump administration to go after these universities. Tax exempt status President Trump has floated revoking the tax exempt status of Harvard. What authority, if any, does he as the President of the United States have to not just float that, but perhaps direct his agencies to look into that? And is there any there there that you guys can see?

[Erwin Chemerinsky]

Erwin I am not an expert on tax law or Tax procedures. On the other hand, I understand there's a federal statute adopted that says the President cannot direct the IRS to do things like this.

[Nico Perino]

That the Nixon era statute. Right, right.

[Erwin Chemerinsky]

The President doesn't have the authority to revoke tax status. During the first Trump administration, a tax was created on endowments of universities above a certain level. That has to be done by Congress. It can't be done by the executive. And to rescind a tax exempt status because of disagreements, including disagreements over ideology, is illegal and unconstitutional.

[David Raban]

Like, I'm not an expert in tax law, but I pick up on his last point as a First Amendment scholar. You cannot deny tax exempt status based on disagreement with the viewpoint of a university.

[Nico Perino]

That federal statute that was passed after everything that happened with Richard Nixon, I believe also stipulates criminal penalties in fines for any violation. It doesn't just apply to the President. The President can't just direct the IRS to audit, for example, institutions or individuals. I think it also applies to other high level officials within the government, including the Treasury Secretary. Whether Trump's Department of Justice would pursue any of those statutes, I am skeptical, to say the least. But there is precedent for a university losing its tax exempt status for violations of civil rights law or in the case of Bob Jones University, well established civil rights policy.

[David Raban]

That's a different basis than viewpoint discrimination.

[Nico Perino]

It sure is. But what hook, if any, given that Bob Jones precedent, would the Trump administration have to go after Harvard for alleged civil rights violations and revoked its tax exempt status as a result of findings that there are violations? I believe in the Bob Jones case, the court emphasized that revoking the tax exempt status was a sensitive decision that should only be made when there is no doubt that an organization violates fundamental and long standing federal policy. But that seems a bit mushy to me. And I don't think there's been any case like that since the Bob Jones case. And it's often been kind of viewed skeptically. And this was Bob Jones. They lost their tax exempt status because of rules I believe it had banning interracial dating and marriage. If I'm not mistaken, there wasn't a.

[Erwin Chemerinsky]

Constitutional issue with regard to Bob Jones in the same way for revoking Harvard or university's text and status because it fused raises a constitutional question that wasn't present in Bob Jones. Second, there were elaborate procedures that were followed with regard to Bob Jones. None of that has been used with regard to the tax exempt status of Harvard. It seems to be just a unilateral presidential decision. And what you're dealing with there is implementing a federal statute. This is just the Trump administration on its own deciding what it wants to do. Congress can set conditions on federal funds. The president doesn't have the authority to add additional ones.

[David Raban]

I want to point out some sometimes universities make unconvincing claims based on their First Amendment academic freedom against taxation. And one case I read, it involves my own law school university, Stanford. Stanford opposed revocation of tax exempt status on its golf course. That was used mostly by alumni. And I don't see how taxing a golf course interferes with the university's First Amendment rights to determine what to teach. So there are limits on how much a university can rely on the First Amendment to prevent taxation. Of course, what we're talking about is a totally different context, but I think it is important to concede that sometimes universities, like sometimes professors, make unconvincing claims of First Amendment academic freedom. That's not the situation here at all, as we've discussed at length.

[Nico Perino]

Well, Stanford's golf course is sacred ground. Tiger woods, of course, went to Stanford.

[David Raban]

It could be sacred, but it still could be quite a tax right. Quote, unquote, sacred right.

[Nico Perino]

And I believe in the Bob Jones University tax exempt case, the looking into of its alleged violation spanned four different presidential administrations. So this was a very drawn out process before the arrival at the revocation of tax exempt status. And I believe I might be wrong about this, that Bob Jones has got its tax exempt status back after that case. It took some time. But let's zoom out here. Do you guys think more colleges and universities are going to, given this federal pressure that we've seen 60 universities under investigation, a handful of them already having their funding freeze, do you think we're going to see more colleges and universities go the direction of Hillsdale, for example, and say we're not taking any federal funding because we don't want the strings attached and Hillsdale is the conservative college in Michigan?

[David Raban]

I think they're more likely to do what Harvard's done and to resist intrusion from the federal government, claiming it's unconstitutional and trying to get courts to enjoin the federal government from withholding funding.

[Erwin Chemerinsky]

I agree with David on that, but I think one of the things that's lost in discussion is why college universities are taking federal funds. The largest amounts of money go to medical schools, to engineering schools, to science departments. And this is because the government is funding essential research. If the government cuts off the funding for Harvard or Columbia medical schools, it's going to tremendously set back research with regard to cancer, Alzheimer's, myriad of diseases. The restriction and returns from the National Institute of Health grants are going to have a devastating effect on medical research in the United States. It's not subsidizing profiteering by universities. It's paying for essential research. And the reality is, when you're talking about the amount of money, there isn't an alternative. For Berkeley, it's $650 million in federal funds a year. It's less because Berkeley doesn't have a medical school. That's $650 million out of a $4 billion budget. That's an enormous amount of money. There isn't an alternative to federal funding, and most of that goes in the sciences and engineering.

[David Raban]

Isn't that an incentive, though, for universities to fold and not resist the government?

[Erwin Chemerinsky]

Erwin? Well, my hope is that they're going to do exactly the opposite. What you say is they're going to fight the government. That what they're going to say is.

[David Raban]

At the risk, at the risk of losing the money.

[Erwin Chemerinsky]

There is a risk of losing the money, but the alternative is to give up your core academic freedom. And that's why what Columbia did in settling was wrong. What Harvard did, what Princeton's done have to be the models. I understand the threat. It's the same thing in terms of the threat to law firms. But the reality is capitulating to a bully only makes things worse.

[David Raban]

And to my mind, reinforcing what Erwin is saying, this is probably the greatest threat to academic freedom in the history of our country.

[Nico Perino]

Even greater than the McCarthy era?

[David Raban]

I think so, because it's broader.

[Erwin Chemerinsky]

Oh, I completely agree with that. In the McCarthy era, there was tragic targeting of individual faculty members, whether it was firing of them or not, hiring individuals, students being involved. This is putting the universities, universities at existential risk. This is the first effort that I can ever think of for the United States government to try to control education by college and universities in this country.

[Nico Perino]

To close out here. What are you guys hearing through the grapevines, not just from other faculty, but also from potentially university administrators? How are they looking at the threats? What are they saying they'll do if the administration comes after them? How is it unfolding within the halls of academia?

[David Raban]

Erwin probably talks to more administrators than I do.

[Nico Perino]

What are you hearing, Erwin? What are you thinking?

[Erwin Chemerinsky]

There's enormous anxiety. There's anxiety, I think, at every university that hasn't had funds cut off, that they're next on the list. And what's it going to be? Berkeley's had $40 million lost already. In terms of just freezing of grants, that's a substantial amount of money. And what does it mean for those faculty careers? What does it mean in terms of the research that's going to be done to benefit society? Berkeley's the subject of seven different federal investigations. So I think anxiety is the word. And one thing we haven't touched on is the anxiety that's being felt by our international students. The visa revocations, the revocation of the sevis status. Our international students are absolutely terrified and their speech is being chilled. We don't know usually why visas are being revoked. The government doesn't tell them. It's not following the statute, regulatory law, it's not providing due process. But it's also important to remember the supreme court said in 1945 in Bridges vs. Wixon that non citizens as well as citizens have free speech in this country and there can't be adverse immigration action taken because of people's speech. Yet both the President and the Secretary of State have said that's exactly why they're revoking visas. So all of this is inconsistent with the First Amendment. And all of this is creating an enormous climate of anxiety on campuses.

[David Raban]

I've heard from my own foreign students, I have quite a few in my law school classes, you know, tremendous concern about what the administration is doing. I also, with respect to administrators, I have a sense I don't speak too many. Frequently they recognize this existential threat to universities that we've been told talking about. For them, it's a question of how to deal with and negotiate the threats of loss of funding with standing up for the academic independence of universities. And how administrators will resar. Will resolve those tensions, I think, remains to be seen.

[Nico Perino]

Do you guys think the Supreme Court will hear a case eventually on the rights of foreigners, the First Amendment rights of foreigners in this country? Either the Mahmoud claims or there's another one regarding a Tufts University student who wrote an op ed, Rumessa Ozturk. I think both of those cases might be right, but my understanding of the legal process is that they need to exhaust remedies through immigration court. So it's that you go in front of an immigration judge, you can appeal to the immigration appeals court, and then only after that can you get into a federal court and make your First Amendment claims. If I'm not mistaken. Now you do have these cases in federal court with regard to the habeas corpus petitions and whatnot. But it seems like there's something that needs to be resolved here because you have foreign students who are deathly afraid to leave their dorm rooms. At many of these colleges, deathly maybe isn't the right word, but existentially afraid that everything that they've worked for at these colleges is at risk and that there are rights that are being violated that nobody is protecting in this country.

[Erwin Chemerinsky]

Let me try to take that step by step. First, at least three federal district courts have issued temporary restraining orders in particular cases against the revocation of visas in sevis status. The largest of these was a Northern District of Georgia case on Friday for 133 students. I expect we will see many more of these because the revocation of the visas and sevis status is just not following law and regulation, not providing due process, and in some it's a violation of the First Amendment. Second, I think a case like Mahmoud Khalil's will get to the Supreme Court and it should be clear so far as we know what was done. He's a green card holder, married to someone who's a United States citizen, wife just had a baby the other day. And it was according to what the President Trump and the Secretary of State Rubio said it was because of the views that he expressed. And no one should face deportation, green card revocation, visa revocation because of their views. That's Bridges versus Wixon. And so unless the Supreme Court wants to change the law, and I desperately hope that they won't, what's being done to Mobile violates the First Amendment. And so I do think that one of these cases will get to the Supreme Court.

[David Raban]

I also think one of the kinds of cases that Harvard is now involved in will get to the Supreme Court, too, since the government is intruding so much at so many different institutions.

[Nico Perino]

All right, well, Professors Erwin Chemerinsky and David Raban, I appreciate this conversation. I'm sure there's going to be much more to say on this topic in the days, weeks and months ahead, but I thank you for your time today.

[David Raban]

Thank you for having us.

[Erwin Chemerinsky]

Such a pleasure.

[Nico Perino]

I am Nico Perino and this podcast is recorded and edited by a rotating roster of my Fire College colleagues, including Sam Lee, Aaron Rees, and Chris Maltby. The podcast is produced by Sam Lee. To learn more about so to Speak, you can subscribe to our YouTube channel or substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle Free Speech Talk, and you can send us [e-mail] Again, that is so to speak@the fire.org if you enjoyed this episode, please leave us a review on Apple Podcast or Spotify Reviews help us attract new listeners to the show. And until next time, I thank you all again for listening.