IGP Rapid Response Examines Impact of University Settlements on Civil Society

**Disclaimer: This transcript was produced using AI transcription technology and has been edited for clarity, but may still contain errors.**

Alexander Hertel-Fernandez

All right. Well, good afternoon, everyone, and welcome. My name is Alex Hertel-Fernandez, and I'm the Herbert Lehman Professor of Government at Columbia University's School of International and Public Affairs and a member of the Institute of Global Politics, or IGP, faculty advisory board. And on behalf of the institute, it's my pleasure to welcome you to today's rapid response webinar entitled "What University Settlements Mean for Higher Education, Civil Society and Democracy."

One of IGP's activities is hosting rapid response webinars like this one on timely issues, bringing the academic expertise of our faculty to help members of the public understand the context and significance of ongoing public events. And as we think about the health and state of American democracy and civil society, which is one of the focus areas for the institute, one of the significant developments happening right now are the unprecedented threats and attacks that the current federal administration has leveled on colleges and universities. And that campaign has included unprecedented steps in recent academic history, such as freezing existing federal grants and contracts for research that the universities had already received, shutting off university eligibility for future funding, limiting or blocking international student access to universities, targeting international students for detention and deportation for their speech activities, calling for federal oversight of university hiring, admissions and teaching decisions, and trying to remove university leaders that the administration disagrees with, such as very recently at the University of Virginia and George Mason University.

In conducting this campaign, the Trump-Vance administration has argued that its motivation has been on civil rights issues, addressing anti-Semitism on university campuses, and enforcing the recent Supreme Court decision that bans the use of race-conscious student admissions. But as we'll discuss on this panel, some scholars of higher education and democracy view this campaign as part of a broader agenda that goes well beyond these stated aims, attempting to diminish the power and resources of universities and reorient them to their favorite aims. Scholars of democracy and democratic backsliding also point out that this attack on universities is part of a broader offensive on independent pillars of civil society in the United States that are part of a broader authoritarian playbook that we've seen in other countries that are going through episodes of democratic backsliding, including, as we discussed in a recent webinar that IGP hosted earlier this spring on these topics.

Now facing pressure from the Trump-Vance administration, several universities, including Brown, Columbia and the University of Pennsylvania, have entered into settlement agreements with the White House. While these deals vary in their details, which we'll discuss on our panel, they all share the general structure that the universities are generally agreeing to a series of internal reforms and oversight measures in exchange for restoring frozen federal funds, resolving active civil rights investigations and gaining access to potential new federal funds.

Now it's important to note that there are significant financial stakes to these settlements and the ongoing campaign that the Trump-Vance administration has been waging against universities. At our own institution of Columbia, for instance, federal grants accounted for over a billion dollars, or 20% of our revenue in fiscal year 2024, and were especially important for the research and operations at our medical center campus. Hundreds of our colleagues have had research projects and labs stalled, life-saving medical innovations and breakthroughs put on hold while the administration was negotiating with the university. Now, within a week of the agreement with the Trump White House, a large majority of Columbia's National Institutes of Health grants have been reinstated, and a number of National Institutes of Health awards have been unfrozen in order for Columbia to receive those funds. However, the university needed to commit to significant reforms called for by the Trump White House, including paying over $200 million to the federal government, and making changes to how the university is run, as we'll discuss.

Now, these reforms have been met with mixed reactions on campus, which we'll dig into. Researchers, especially those on the Medical Center campus whose work has been stalled by these frozen federal funds, are relieved to have their funding restored. Some of our colleagues are celebrating the internal reforms that the settlement calls for, especially given concerns about anti-Semitism and anti-Semitic incidents towards Jewish faculty, students and staff. Other colleagues, however, are concerned about what this settlement means for federal control and oversight and interference in core university functions, as well as what this means for the broader state of civil society in the United States.

So how should we think about these settlements from Columbia and other universities? What do they mean for academic freedom and university research and freedom of speech? And what does this tell us about the state of US democracy, at a moment when many pillars of civil society, including the media, law firms, nonprofit organizations, are under pressure from the Trump-Vance administration?

To discuss these questions and more, we're very fortunate to have leading experts in the areas of democracy, civil rights, free speech and civil society from our own Columbia University faculty. I'll briefly introduce each of the panelists in turn, and then we'll move into questions for each one collectively. And then I'm eager to hear from the questions that our attendees have today when we open things up for questions from the audience. You can pose your question for the panel through the Zoom Q&A button, which is located at the bottom of your screen. And I encourage folks to submit their questions as we're going along, and we'll be sure to collect those for our panelists.

So today, we're fortunate to have Professor Pozen, who is the Charles Keller Beekman Professor of Law at Columbia, whose work focuses on constitutional law, information law, nonprofit law and free speech. He's the author of multiple books and many articles, and previously served in the US Department of State and in Congress. Professor Fuchs is Professor of International and Public Affairs, as well as Professor of Political Science here at Columbia, and directs the Urban and Social Policy concentration here at the School of International and Public Affairs. Her current research focuses on community engagement with government, and she previously served as a special advisor to New York City Mayor Michael Bloomberg. Professor Johnson is Ruth Bader Ginsburg '59 Professor of Law at Columbia, where her work focuses on civil procedure, civil rights law and legislation, and her recent work has focused on how state and local governments can increase opportunities for historically excluded groups, as well as the role of lawyers in the struggle for multiracial democracy. Professor Johnson has also served in multiple public service roles in Congress and in civil society litigation organizations.

So with that, please join me in welcoming our panel and to kick things off, let's start with a question for you, Professor Pozen. You've written in the weeks following the settlement from the Trump administration and Columbia University leadership about how this settlement represents a new approach to federal policymaking by deal. What do you mean by this, and what does it mean for how we think about the negotiations between universities and civil society groups like universities with the federal government?

David Pozen

Thanks so much, Alex, for inviting me and for that excellent introduction. So I know that many people have strong views on the substance of the agreement and the degree to which it responds to and rectifies real problems versus manufactured ones, the degree to which it threatens academic freedom and free speech, the role of the monitor, and on and on. And I have strong views too, and I assume we'll discuss many of the provisions in the agreement over the course of this webinar. But I think it's crucial to emphasize that regardless of one's views on the substance of the deal or on whether Columbia did the right thing in trying to seek the deal, the process through which the agreement was brought about is itself a threat to universities and indeed to all of civil society.

And we can imagine a universe in which a new administration takes over in Washington and it has a new agenda for higher ed or anti-discrimination law. Maybe it has an anti-DEI agenda, or it wants to emphasize anti-Semitism, or it's got concerns about the humanities or whatever else. There are many tools in existing law with which that administration could pursue its agenda. It could, of course, seek new legislation in Congress. It could do notice and comment rulemaking and issue formal regulations. It can issue informal guidance, such as dear colleague letters to announce its view of what universities should be doing going forward. It can also initiate investigations that are impartial, rigorous and ultimately subject to judicial review. None of that happened here. None of that happened in the case of Columbia's deal. Rather, what happened is that the executive branch cut off Columbia's funding without even purporting to follow the congressionally mandated procedures for doing so, and thus forced Columbia to the negotiating table, which eventually resulted in this deal.

Professor Johnson and I, along with five other colleagues from the law school, wrote a blog post right after the initial funding cutoff, in which we explained all of the many ways in which the cutoff clearly violated statutory and constitutional law. And I have to say, Alex, I've never had this experience before as a law professor, which is a very disputatious profession, where we write something on a topic of high public visibility and controversy, and no one—that was a lot of people circulated that post and discussed it. Not a single person tried to defend the legality of what the government did to Columbia, including its allies, you know, in the academy and those who might be sympathetic to its agenda. No one even made an attempt. It was that clearly unlawful.

Not only was the initial funding cutoff clearly unlawful, but the executive branch, more generally, has not issued sector-wide directives of any kind. It has not said, "Universities, this is our new understanding of the civil rights laws grounded in the statutes themselves and in reasoned argumentation, and you need to get on board with the program." Instead, what happened was what I've called in this post you referenced "regulation by deal." Regulation by deal.

This is a very unusual and very problematic tactic of public administration, where the government is foisting upon individual universities on a bilateral basis, these ad hoc arrangements after terminating or threatening to terminate their funding. Besides being brazenly extortionate in its character and unlawful, this approach cuts out Congress, the courts and the public at large from the process of constructing higher education policy in one swoop. It invites personalism and corruption in the manufacture of these deals, and it's fundamentally opaque, unpredictable and arbitrary in its formulation. It is, in other words, a perfect tool—regulation by deal is a perfect tool for authoritarian control of civil society and therefore a disaster for university autonomy and the rational development of higher education policy, as well as the rule of law.

So I'm supposed to be very brief here, and I'll conclude just by saying that, again, you do not need to believe that the terms of this deal are bad or that Columbia made a mistake in entering into the deal to agree with the basic point I'm trying to emphasize, which is that the very construction of the deal—the deal itself is a scandal and a major problem for all of us who care about democracy and the rule of law.

Alexander Hertel-Fernandez

Thank you so much, Professor Pozen, for talking more about the process by which this deal was struck and what it means for both Columbia specifically, as well as civil society more generally. Professor Fuchs, I'd like to transition to you. You've thought a lot about what the settlement means in terms of what's been happening on Columbia's campus, including some of the internal reforms as well as the restoration of medical and scientific research. Can you share more about your thinking about the impact of the settlement here on Columbia's campus, as well as lessons for universities more generally?

Ester Fuchs

Well, first of all, Alex, thank you for convening all of us. I'm honored to be on this panel discussion. Always intimidated by lawyers. However, I am married to one, and I have a son who's one, so I guess, you know, I'm ready. I understand the legal issues that David's brought up, and I have no disagreement with that analysis, which I think makes so much sense. So I really am taking a different tack in terms of my understanding of what's going on right now, because I think the university at SIPA has been and continues to be in an extraordinarily difficult place, together obviously with other institutions in civil society.

I'll focus on Columbia primarily, but, you know, on universities in general. What I understand is more from a political perspective and an operational/administrative perspective than from a legal perspective. Because I think you're absolutely right. This is, you know, there was no legal process that was really engaged in here that's defensible. So where does that leave us as a university in terms of how we act, how the administration went into this process—essentially trying to broker a deal?

And so I think on the one hand, we can be critical broadly of what's going on, and on the other hand, I think we need practically to look at what's happening at Columbia, and this is not—you know, we may later address questions of why universities don't act in concert with each other, and what's the difference between a research university and a small liberal arts college in terms of how they engage this issue. But I've been co-chairing this anti-Semitism task force for the last 18 months. I say to my friends, "for my sins," because I said yes to a president who asked us to do this work, and that turned out to be something probably much more difficult than I had anticipated, having been in this university for over 40 years. And I think all of this is tied up together, and that's part of the complexity.

And what I have found—and I know Olatunde will speak to the civil rights issues better than I can, so I won't go there. But what I found is that Trump's agenda was very specific and very political. He wants to destroy higher education in the United States. I think that's, to me, a very clear part of his agenda. But his tactics have been very interesting and very unusual, as you point out. But in order to destroy higher education, he went after anti-Semitism, DEI, transgender athletes in women's sports, foreign students. And so I think part of the problem has been his agenda of destroying higher education for a variety of reasons we can talk about is conflated with some of the real issues that are being confronted on American university campuses, especially on our campus now.

So I have the most difficulty understanding two things: why faculty have had a hard time keeping two ideas in their head at the same time. One is, this is an attack on the university. And I believe that the three presidents who have been dealing with this have tried very hard to manage to keep the integrity of the university intact, and also, I believe, to ensure that we did not betray basic values of the university when it comes to faculty hiring, university hiring, admission decisions and the content of academic speech. There's nothing in this agreement that I see that allows the federal government to regulate that space for us.

At the same time, the brilliant and despicable political tactic of the Trump administration was to cut off funding in the sciences and in the medical school, and so not only to hold $400 million in funding, but to make us ineligible for the $1.3 billion a year of funding that the medical school and the sciences need to keep themselves going. And so, from my perspective, it was a brilliant political tactic, which we, unfortunately, in the university, to a certain extent, have fallen into.

What do I mean by that? I mean that I don't believe that the university, the administration, had any other choice but to negotiate a settlement. Would I prefer that all universities got together and did this and fought? So then I think there could have been a chance, but I've seen the data on the endowment, you know, it's mostly encumbered. Most of the calculations indicate that it would last for about two years if we had to replace all the research money, not to mention how many people's lives would be ruined. This is all soft money. You know, we in the arts and sciences and at SIPA, in the law school, you know, we're tenured, and we get our salary. All of these people are on soft money. They're doing life-saving research. People will die if that research doesn't continue. And the character of the university as a research university. We are not a small liberal arts university that gets no federal funds. So I believe that the president had an obligation to negotiate.

The problem is, as was pointed out by David, of course, this gives the upper hand, obviously, to the federal government. At the same time, the part that people don't seem to be able to get a handle on is there have been significant violations of Title VI at the university, and Jewish students and Israeli students and Muslim students, I should add, have really been living in an environment which I believe has been terribly destructive, not just to the esprit of the university, but to the ability of students to be part of a community and be educated here.

And you know, I'll close this part by just saying one thing in particular, because I think it hasn't been talked about enough. And I'm not speaking for the task force or anything like that, but I am sharing information from a survey that was done by the National Opinion Research Center on the 2023-2024 academic year. And the task force, we went out of our way to get—use the National Opinion Research Center, so we would have a survey that was beyond reproach, which it is, and a high response rate, which it is.

I'm responding obviously to questions that no one's asked yet. But that's also, I think, important to understand. Fifty percent of students reported feeling a sense of belonging at Columbia. That's low for everybody, okay, but then when you look at Jewish and Muslim students, only 34% of Jewish students felt they belonged, and only 41% of Muslim students. And just 15% of all students reported that they didn't feel accepted for their religious belief identities. Nearly 65% of Jewish students and 53% of Muslim students felt that they did not feel accepted for their religious identities.

We, as I said, went out of our way to ensure that we got information on all religious groups. We had hoped, the task force that is, had hoped to be working with an Islamophobia task force. I think it's important for everybody to know that the faculty who were approached to serve on that by President Shafik said no. So I will end this part of our comments with what I think is a very important point.

There's a linkage here that was constructed by the Trump administration, essentially to divide faculty. And the more we deny that there is a real problem around anti-Semitism and Islamophobia, the more the bad political actors can weaponize this, and they have in terms of their attack on the universities. And if we are incapable, as a university and as faculty, of recognizing what our common interests are, first in supporting every academic unit in the university, including the medical school and the sciences, and ensuring that there's enough resources to pay faculty and researchers, support students and staff, and if we cannot engage civilly—which is why this is so important—and recognize our shared values in supporting academic freedom, if we behave, as political scientists like to say, as a collection of special interests rather than a responsible community, we won't have to wait for the Trump administration to destroy us. We will have destroyed ourselves.

Alexander Hertel-Fernandez

Thanks, Professor Fuchs, and I appreciate you sharing both the context here at Columbia as well as the broader political landscape that the Trump administration was able to leverage. And Professor Johnson, I'd love to turn to you now. You're a scholar of civil rights law, which has been at the heart of the disputes between the federal government and Columbia University. Can you talk a little bit about how the Trump-Vance administration is approaching civil rights enforcement, how it compares historically, and what this means for the future of civil rights enforcement here at Columbia and other universities and society more generally?

Olatunde Johnson

Yeah, I'm happy to do so. Hopefully everyone can hear me. Well, first of all, Alex, thanks for organizing this and Dave and Ester, thanks for your comments. I want to say in particular, I'm really struck by where Ester ended. I think it is really important that at the end of the day that we attend to issues around climate and around polarization. There may seem to be no connection between some of the things that we talk about as lawyers and some of these, what happens on climate issues on campus, but I actually think there is a profound connection between the way something happens, the regularity of process, what we call rule of law, due process, values and building trust, social solidarity and legitimacy and inclusion, and we have to keep an eye on that. You can offer policies in a way that actually intensify polarization, or you can figure out strategies and ways to bring social solidarity. And I'm not saying this is easy, but I think this is ultimately what our project should be.

So I wanted to say a few things about Title VI. I have long written about Title VI. I literally—well, when it used to have a private right of action for disparate impact, I used to litigate Title VI issues. And when I came to the academy and I would say, "I write and think about Title VI," people looked at me blankly. No one knew what it was. It was such an unrecognized area of civil rights law that most people in the legal academy didn't even know what it was, and most civil rights lawyers didn't.

So let me say that Title VI has been an incredibly important tool, just to start with, for achieving, or I won't even say achieving, but moving us towards educational equity. So the origins of Title VI were that after Brown versus Board of Education, there's no remedy, really, that the courts order and there really was no progress, until you could use federal funds as a leverage point to try to get K through 12 institutions to desegregate, and there was certainly some progress made.

There's always been a kind of contradiction at the heart—at several contradictions at the heart of Title VI, which is that it's seen as this important tool. It's celebrated for the progress in terms of desegregation, but it was also called "the sleeping giant," in the sense that it was never a tool that was fully unleashed. It was fitful. It was irregular, seen as under-enforced. In the higher ed context, civil rights groups never found that it was enforced to desegregate higher education institutions throughout the South. They had to file a lawsuit in the 1970s to get the federal government to even do some minimal enforcement.

And so what I see here is, in some ways, a kind of unleashing of Title VI in ways that are, you know, interesting. They follow some of the values that I think are underlying Title VI that have to do with student inclusion, but are also used in ways that really raise some concerns about whether or not it's going to be enforced in a fair way across all the different categories that it covers, to say the least.

I want to say that the part of Title VI that's being enforced here is the hostile educational environment standard that actually comes out of the sexual harassment context, but is applied to racial harassment and now with national origin and shared ancestry. And so the idea is that you shouldn't have climates that are educationally hostile. And it's not unusual to enforce that provision. It's not unusual to negotiate compliance agreements. I think what is really far-reaching here, and David mentioned some of this, is the scope of the enforcement and then the—I guess this is what David centered more on—the use of the termination tool in a way that violates the statute and constitutional provisions.

And I just want to emphasize why it's a concern. I mean, one is that hostile educational environment doctrine has always bumped against First Amendment and—in the 1980s, there were a lot, there was a rash of incidents against Black students and gay students on campuses, and so some schools tried to tighten their hate speech laws, and courts really clamped down on them doing that, saying these were public universities saying it violated the First Amendment. So there's always been this question of, how do you navigate the tension between harassment law and the First Amendment? And so those are not fully resolved in these settlements, and they're going to linger in terms of people's perspective on the ultimate agreement.

And then the other thing about the termination is what David mentioned, just the fact that you're sort of backed into an agreement, and the scope of it here is much more far-reaching. So a typical compliance agreement would do something like say you have to strengthen your Title VI reporting and complaint mechanisms. You have to do a campus survey. It has some aspects of what's in our agreement, like you have to hire someone, a student affairs person, who particularly attends to the needs of this underrepresented or disadvantaged group, but this is more far-reaching and reaching into academic programs, governance and discipline structure.

So because I know we also want to get to questions, I just want to mention another piece that's really important in this agreement that also speaks to a broader agenda. So we've said that there is the tactic. And Ester said this of using Title VI in this way, in a way that can weaken knowledge institutions more broadly, as Vicki Jackson uses that term of knowledge institutions. And Dave said this is an authoritarian strategy, because these are rival organizations that challenge authoritarian regimes just by building another base of critical inquiry and also dissent and protest.

There's another strategy that's underway that has to do with an idea around race and gender identity that is snuck into this agreement without much discussion, but is potentially far-reaching. So the agreement says that it makes changes to admissions and hiring practices and targets race as one of the areas, and this is part of a broader agenda to really use the Students for Fair Admissions case, the affirmative action case against Harvard, which was a Title VI case and an Equal Protection case involving UNC to promote a broader vision of color blindness. And this is not just about affirmative action.

So Columbia already considered merit in its admissions and also did race-blind admissions after SFA. But this is unclear, but it's purporting to go further. It uses terms like "illegal DEI," doesn't really define that. Says that it's going to now require a lot of auditing of racial data, so in some strange way, it introduces more race consciousness. But ex post, I've been calling it a pro-retrogression standard, as if they want to see the numbers of Black and Latino students go down for proof of—for making sure that there is no race improperly in the admissions policy.

It also gets rid of things that the Supreme Court said were allowed—the use of diversity statements, or things that show that you have individually overcome adversity. It also says that it's going to restore something or it wants Columbia to pursue merit-based admissions, and doesn't really define that. Given that Columbia selects applicants that it believes can succeed at the university beyond underrepresented minorities, this could have an effect on first-generation students, rural students, students from low-income backgrounds, if it's not defined.

And so that is a really broader reading of the Students for Fair Admissions case, and I'll just conclude on this. This is further than maybe just thinking about educational institutions, but that agenda has to do with things like dismantling the Voting Rights Act or getting rid of portions of fair employment laws. It really targets what we call the second Reconstruction, not just the notion of affirmative action, but all those civil rights laws.

And some of the questions that came in talked about threading needles, and I think some of the needles that the administration is trying to thread in using civil rights law in this way is trying to make it work for some groups in a way it doesn't work for other groups. And I don't know how that's going to work, because if you unleash some of these tools, everyone should be able to use them. And I think that that's going to be a tension. So, for example, if you make it easier to prove hostile educational environment, that should be a strategy that every group can employ. So it's not clear how that's going to actually be possible, but I think that that's the agenda, and it goes far beyond college campuses. So there's more to say, but I'll end there.

Alexander Hertel-Fernandez

Thank you, Professor Johnson, and in particular, for both situating the Title VI context and what's similar or different in this settlement, as well as some of these other components of the settlement that go beyond the discussion that we were just having on anti-Semitism and thinking about this broader project by the Trump-Vance administration around race as well.

I want to make sure we can get to audience questions, but before we do, I wanted to see if any of the panelists wanted to respond to the opening comments that were laid out. And as well as weaving in, as Professor Johnson did, other components of the settlement that you might want to put on the table for our discussion, beyond those that we've already talked about, whether it's the structure of payments or the monitoring system or comparisons to other universities. So maybe we can go in reverse order, Professor Johnson, if you want to go, Professor Fuchs, and then Professor Pozen.

Olatunde Johnson

Well, I think we did something that was more of a legal analysis recently, and I've commended to people that Knight Institute has a really great legal analysis. As a SIPA person, I'm really struck by the monitor and the role of a monitor, and also as a Title VI person, I look through other complaints and resolutions, and I haven't seen a monitor that has this much power appointed by an administrative agency. So that's a very unusual structure, and the practical implication for us is that it vests a fair amount of authority in a monitor in an agreement that has a wide scope and lots of points of it that are vague and that are left to discretion. It's not unusual in these agreements or in any legal document to generate some discretion or to have ambiguous terms, but it does put a lot of power in the monitor to resolve those terms. The other end, and who the monitor is, is really going to influence things.

And then another thing to mention, people have raised concerns about what's its effect on academic freedom more broadly, but does it have a chilling effect? And it does allow the gathering of what it says data and information related to this agreement, and because the agreement deals with hiring, curriculum, governance, discipline and admissions. That's a really, potentially broad scope. David might offer his limiting principle, you know, it also says that it doesn't mean to infringe on academic freedom and hiring and all those things. So you could read it to be limited in this way, but that is something that gives me concern about the individual privacy rights of students and faculty and administrators.

Alexander Hertel-Fernandez

Professor Fuchs, would you like to respond to anything that's been put on the table, or other components?

Ester Fuchs

I'll just say two things very quickly. Again, you know, without presenting myself as a legal expert here, my sense of this agreement is it has intentional ambiguities and intentional vagueness. And that monitor was appointed to avoid receivership, to be honest, because that is what the administration actually proposed originally, which seems to me to be far worse. So part of is the power dynamic here, from my perspective, which is if the university wanted to settle in some way, which clearly it did for reasons which I think made perfect sense, that they needed to do this, or we really would have had a huge problem on our hands. Then they were trying to figure out a way to settle without giving away the entire university.

So when I read "no provision of this agreement, individually or taken together, shall be construed as giving the United States authority to dictate faculty hiring, university hiring, admission decisions or the content of academic speech," I thought, hey, that is a good statement for the university. Now, the question of whether or not, you know, Trump will go back and abrogate all of this and, you know, change his mind. Well, that's the risk everybody takes from entering into an agreement. But from my perspective, I don't believe, you know, you don't do anything, because agreements have risks. Pretty much everything you do that is important in life, you know, you have some risk. Some of us get married, there's risk in marriage, so you don't get, I mean, I just find that kind of argument to be very not—nobody here made it, but in general, a very uncompelling argument.

So I just wanted to emphasize that, you know, I certainly don't disagree with anything Olatunde said, but I also, from a political perspective, think everybody should sort of understand that the university did not have a lot of power in this situation in terms of what it could and could not do if it wanted to restore funding, if it was willing to tank the university or turn itself into a small liberal arts college, or, as one of my colleagues wrote in the New York Times, moved to Canada. You know, I don't think those are viable alternatives. So I think under the circumstances, there was a tremendous effort to protect academic freedom and the basic principles of university governance, and I think that's why there is a language that's ambiguous. I think that's the best under the circumstances that the negotiators could do. I was not personally involved in any negotiation, so this is just my viewpoint.

Alexander Hertel-Fernandez

Thanks, Professor Fuchs, and Professor Pozen?

David Pozen

Thanks. Maybe I'll make two sets of points, one on the threat to academic freedom, and one on Title VI.

So Ester just read from Section 5 of the agreement, which is the provision that says nothing in it will allow the government to dictate hiring, admissions, academic speech, that, along with the three-year sunset, is the best provision in the agreement from Columbia's perspective. And when Olatunde referenced that, I may have something to say on how the agreement should be interpreted, we've had conversations about how I think Section 5 should inform the interpretation of all of the more specific provisions that follow. So it's a principle of contract interpretation, that the whole agreement should be interpreted harmoniously. So when there's ambiguity in some specific clause later in the agreement, I think it should be read in light of that upfront commitment to academic freedom, and I hope the monitor will embrace that understanding.

Notwithstanding that language that's good in Section 5, I do want to build on what Olatunde was saying about how a chill has already set in around many parts of the university, and that's because even though some of the provisions of the agreement might seem potentially narrow in their scope. There are many ambiguous provisions, and Ester was speaking about this as well, that could give rise to mischief.

I'll just note a few. Olatunde mentioned the term "unlawful DEI" that's in the agreement. That's not a legal term of art. None of us in the law school know exactly what that means, but I guess we're not supposed to do that. It's not technically in the agreement, but adopted by Columbia in the run-up to the agreement, is the IHRA definition of anti-Semitism. That's a famously slippery definition in some respects. That's going to give some people pause when they're talking about issues related to Israel and the Middle East.

There's language in the agreement about how proxies for race are not permissible in admissions decisions. That's not a concept directly from the Supreme Court's decision in the Students for Fair Admissions case, and depending on what a proxy is, that could just be a restatement of what the Court held or a much, much tougher bar to meet.

And then finally, in Section 50 of the agreement, the monitor is entitled to get all data, including employee data, that is related to the agreement and not unreasonable in the request for it. What is related to the agreement, exactly? What's unreasonable in this context are also, of course, ambiguous. So when you combine these ambiguous provisions with the looming threat of a government that clearly doesn't feel beholden to positive law, with a monitor and a whistleblowing and reporting regime on top of that, I think you're going to see a lot of people worried about not just their hiring decisions and admissions decisions, but also classroom speech and their publications and public advocacy. So notwithstanding the effort that was taken to make this agreement acceptable to Columbia, which I appreciate, I think the chill is nonetheless going to set in, and that should worry us.

Second, I'll be quicker just on Title VI. Although I agree with most of what Ester said in her remarks, I don't agree that the university was in violation of Title VI, as I think I heard her to say. That's not to say that there weren't anti-Semitic incidents on campus. I think we all know there were. I myself am Jewish and have seen that. But the standard for the university to be in violation of Title VI, at least when you have a private suit for money damages, is that it has to be deliberately indifferent—deliberately indifferent to the unlawful discrimination that's happening, whether on basis of anti-Semitism, race or what have you.

And I think it's just wildly implausible that Columbia has been deliberately indifferent to anti-Semitism for a long time now, going back to the spring of two academic years ago. The university pursued many measures, some recommended by Ester's task force, to address anti-Semitism. We can debate whether they were the right measures, whether they went far enough, whether they could have been done earlier or differently, but the university has tried, in many different ways to address anti-Semitism and therefore satisfy the Title VI standard. And this is not to say that the university shouldn't be very active in this space. It's just to say that there was no legal basis under federal civil rights law to force us to do what we've been forced to do.

Ester Fuchs

Can I just make two remarks here? And again, most everything you say, I completely agree with, particularly about all the approaches that have been taken around Title VI. The two issues that I think should be clarified, the one adopting the IHRA definition—anti-Semitism task force did not adopt the IHRA definition. To be clear, we did a definition for the purposes of education and not discipline or any kind of legal standard. But this issue of the university adopting is kind of moot, because my understanding and this, several lawyers have said this to me, so I'm just repeating this—is that the IHRA definition is the standard for anti-Semitism being used in Title VI. Now it was adopted by the Trump administration, the first Trump administration, Biden did not get rid of it, and it continues. So for the university to say that on legal issues is not really giving anything, as far as I thought, you know, saying it, I thought they should have pointed that out, because, frankly, I anticipated that people would come up with this criticism. And in fact, this is one in which I think they gave something that was already part of, you know, part of the legal doctrine. So I think that that's, you know, that needs to be taken into account.

The other point—the chilling of speech. I'm sure that that's probably true on some level. But the issue about whether or not there's been problems all over the university as it relates to anti-Semitism, there has been, and frankly, I did not when I personally decided—said yes to go on to this task force. I did not expect to find what I found listening to 500 students. I went to eight sessions myself, and then also kind of unraveling structural issues in the university so we could make reasonable recommendations for change. There has been a problem, not just in the classroom, but in clubs, in the dorms, all over the university, where students have felt—they have felt this experience of being discriminated against.

I'm not saying it rises to the level of a legal standard. I'm saying, for me, I don't want anything to go to court. I don't want to have to deal with Title VI. My view is we have failed because we don't have any structures in place. We didn't, I think we do now. We didn't have real structures in place to deal with this. And frankly, it's not just a Jewish students problem. It's broader. I mean, we found, you know, enormous numbers of problems when it comes to students going in and complaining about things being—no place for that conversation to happen after a complaint, deans dismissing them, sending them to public, you know, sending them to mental health services. I mean, you know, and then the survey data sort of confirms all of that for large numbers of students. So I understand why we would hope that that didn't exist. But what became very clear to me is that this has been building over time, and I would say it's a problem that's been building for 20 years at Columbia, and we have particular institutional problems that are unfortunate, and that would be the topic of another webinar. So I don't want to take up our time with that.

Alexander Hertel-Fernandez

Well, thank you for providing that context, Professor Fuchs. I want to make sure that we can transition now to some of the audience questions and some of the questions that were submitted in advance. I really want to focus on this question of broadening out to think about what this means for the state of American civil society institutions. And I think it's something each of you three are really well positioned to comment on, given your knowledge of constitutional law, civil rights law, and the ways in which government interacts with community-based organizations and nonprofits. And so I'm just curious, what does this mean for how we think about how the federal government is approaching public policy, and more generally, these pillars of civil society, the knowledge-generating institutions and others.

Olatunde Johnson

I mean, I'm happy to—Well, Dave, why don't you go first?

David Pozen

I'll be brief, but you, I'll tell you, you go and then I'll just—

Olatunde Johnson

Yeah, I mean, I think—we've said some of this, right? That it suggests the use of federal funds as an instrument to control knowledge institutions. It's also about law firms, it's about attacks on press, it's attacks on judiciary, and I think we have to see it in that sense. I'm very interested in the idea that federal funds could be used in this way. And I think it creates a kind of conundrum for universities about their reliance on federal funds. There's always been a kind of implicit deal with Title VI, which is that you would respect university autonomy, but still use federal funds as a leverage point, right? You sort of—that was a needle that was being threaded that now seems to be coming apart. And I think a real question will be whether or not this conditional spending regime can survive, or flip side, whether institutions will continue to rely on federal funds in this way, because this—that whole agreement, that sense of collaboration, this restraint from the federal government, if it's all sort of collapsed.

The second thing I wanted to note is that, in some ways, I think that we'll see these issues sorted out, not just at Columbia, but at other institutions, especially public institutions. I'm really interested to see what happens with the California schools. Given California's power in relation to, you know, the idea that you tell California it can't have its money when it puts so much into the federal government, I think really creates an issue. But I think the other reason that the state institutions are important, is that there's a real imbalance with regard to federalism here, from the federal government using its power in this way. There are—we've talked about statutory constraints, but there are constitutional constraints on using federal money to violate other kinds of rights, you know, be it First Amendment, due process. And I think those are really going to come into play, as well as the third point.

And then I will end here, is that this balance that Ester was just talking about between speech and discrimination will have to be sorted out, and it'll be sorted out in the public school context, probably, I mean, it can be sorted through Title VI, but I think it's going to be, there's going to be a real question about whether you can punish students. Now, I don't, I just want to say my view on it. I'm not a First Amendment scholar. I've never been that sympathetic to the idea that epithets, and you know, what we'd classically call hate speech is something that the that we cannot, that we can't discipline students for at least take some action, or I think that there are arguments that there's a compelling interest in furthering student equity and inclusion that would allow you to curb some forms of hate speech. But I think the problem has been that you're talking about protest, that is political speech, and that you also maybe talking about academic speech, which are, you know, discussions that take place in the classroom, and that that's where you're going to run into real problems of First Amendment.

David Pozen

And Alex, I'll just say briefly that I think this builds on Olatunde's point as well. At least two different legal tactics have converged in the Columbia case that have broader application and are very worrisome for civil society. So one, which I started with, is the spread of regulation by deal to new contexts. So some people have defended the use of something like regulation by deal in certain crisis situations, like the financial crisis of 2007 to 2008. The government's worried about market collapse, does bespoke deals with certain banks to avoid a systemic crisis. Those are temporary and developed under exigent circumstances. We can debate whether or not that was justified, but what's really new here and pernicious is the deal-making mode coming to universities, to law firms, to media institutions proliferating well beyond, you know, the core case, where it might be defensible as a legal and democratic matter. So the spread of regulation by deal, I think, is very worrisome.

The second which Olatunde touched on is the weaponization of conditional spending. So that is to say, many federal laws take the form of Congress appropriating money for the executive branch to give out to states or private institutions subject to certain conditions. And in fact, there's a whole line of legal scholarship on how more and more of the laws that Congress has passed in recent decades have been spending bills. In part that's because they're not necessarily subject to the filibuster. Can go through the reconciliation process in Congress, so it's just easier to get spending legislation done than other types of regulatory legislation. And so one scholar says we now live in a "republic of spending."

So the federal government therefore has so many different financial levers to use when going after civil society institutions. Law firms are actually less exposed here than universities, but many, many NGOs, universities and state and local government bodies are deeply dependent on federal funds at this point. And when you have an administration come into power that's determined to press a very ambitious agenda and is willing to defy the statutory constraints on that spending, then you have a recipe for, you know, authoritarian takeover of civil society. So that's a wicked problem, I think, because I don't think it's a happy story that universities like Columbia would wean themselves off federal funding. Federal funding for basic research is extremely important, and so I'm not sure there is an easy resolution to that one, but spending legislation being weaponized and regulation by deal expanding to new realms, I think are two things we should all keep our eye on if we care about the authoritarian threat.

Ester Fuchs

All right. Well, I just want to say two things quickly. One is, lawyers are my heroes now in this situation. They are the only ones, I think, who have any capacity to really fight against what's happening in the federal government and part of the—so that's one piece of the puzzle is this is the legal opposition that is coming from civil society advocacy groups, pro bono lawyers to fight against all of these changes that you two have so clearly articulated. And I would expand on what we have to worry about now. So I agree with you that there's been the weaponization of conditional spending, and that is really scary right now, both for all institutions of civil society and for state and local governments, as you've said.

But I would add to that, the abdication of Congress of its responsibilities in the federal system and the balance of powers. And so for the first time in my lifetime, I see our institutions of democracy broken, very broken, and that's why my view of what, you know, how do we try and prevent the democratic backsliding into authoritarianism now, I believe really requires this kind of activity that we're not used to in American politics anymore. We need to develop broad-based coalitions when, in fact, we've depended upon political parties to do that, which don't do that anymore, right? We need to have broad public demonstrations, voter registration, voter mobilization, and voting in state and local elections which repudiate this agenda of the federal government right now. And finally, you know, a surge of turnout in the midterm elections to essentially move these people out of office from the House.

Now, you're going to say to me, of course, we've got, you know, voter suppression and gerrymandering. We've got to deal with right now. So yes, that's the part to me that's really frightening, which is it's not just the weaponization of conditional spending. It is an effort to really destroy American democracy by essentially destroying these institutions that have worked to balance power for the last 200 years. So, I mean, I am optimistic about the American people in the end, to do what we need to do, to take back our government, and I think it's going to happen in the cities. So that's my place for optimism.

Alexander Hertel-Fernandez

I appreciate your call to action for people to mobilize if they are opposed to what's happening right now, and if folks are interested, we've had previous conversations with a more international comparison understanding how collective action in other countries has been important for pushing back against democratic backsliding. That's all the time we have today. And thanks so much for our listeners for joining us and for your thoughtful questions, as well as to Professor Fuchs, Pozen and Johnson for your great remarks and lending your expertise to these important topics. We here at IGP and SIPA, look forward to seeing you at a future event. Thanks so much.