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That “should” is doing a lot of work, as became clear when we spoke to three of the signatories: Michael C. Dorf, of Cornell University; Genevieve Lakier, of the University of Chicago; and Nadine Strossen, of New York Law School. All expressed degrees of dismay at the climate for free speech on campuses. “It is remarkable how quickly the chill has descended,” said Lakier.
The day after The New York Review letter appeared, Columbia University conceded to a variety of demands from the Trump administration, including adopting a contested definition of antisemitism, new disciplinary procedures for student misconduct, banning masks on campuses, and placing a department and several other units under the supervision of a yet-to-be-named vice provost.
We spoke about the prospects for legal action against the Trump administration’s funding cuts, competing visions of the university, and the use of deportation in the McCarthy era and now. This conversation has been edited for length and clarity.
Evan Goldstein: Let’s start with what happened on Friday, March 21. Columbia released a memo in response to the Trump administration’s demands, essentially conceding on every point. In the lead up to Columbia’s decision, a lot of people urged Columbia to sue. Michael, for instance, argued in our pages that the way the administration went about cutting $400 million in federal grants was plainly illegal. So my question, which is not entirely a legal question: Why did Columbia capitulate — and how significant is this move?
Michael Dorf: I can’t say exactly what led interim President [Katrina] Armstrong to take the position she did, reach the conclusion she did, but part of the problem was the lack of a swift coordinated response throughout higher education. In that respect, it looks a lot like the decision of Paul Weiss, the law firm, to capitulate to the Trump administration’s demands. In fact, the managing partner sent a letter to members of the firm saying that not only weren’t other law firms coming to their aid, they were poaching Paul Weiss’s clients. I don’t think anyone was poaching Columbia’s students, but with the exceptions of the presidents of Brown and Princeton, the leadership of academia has been pretty much absent; everyone is taking a duck-and-cover attitude. So Armstrong felt she was on her own. That’s my most sympathetic read, even though I wish she had taken a firmer stand.
Nadine Strossen: I was struck by a piece in The Chronicle that you questioned the nearly 60 university presidents who were also on the hit list, and not a single one of them answered a single one of your questions. And I very carefully looked at Princeton, which was among those that did not answer. I loved Chris Eisgruber’s essay in The Atlantic, but when push came to shove to say something specifically in response to a specific demand, there was no speaking out.
It feels like we are saying goodbye to this beautiful democratic vision of the university.
Genevieve Lakier: I have two points, one less sympathetic to Columbia administrators and one sympathetic. I think it is hard to understand Columbia’s decision without understanding the broader context in which it’s occurring, and it is a context of fear, of retaliation. What’s incredible is that in such a short amount of time so many powerful and protected actors and institutions are afraid of speaking up because of the consequences. So there’s this very rational cost-benefit analysis where administrators are thinking, “Well, if we speak up and others do not …” It’s a collective-action problem in which, in the moment, it’s always easier not to speak. This is why we have free-speech protections — speech is easily chilled. It is remarkable how quickly the chill has descended.
A less sympathetic reading: My sense of what was motivating both the Paul Weiss and Columbia leadership is a view that the concessions being demanded were not very significant. Maybe the Trump administration can be easily manipulated, so you give them things that aren’t very significant things and then they’ll go away. I think that’s a mistake because I don’t think the administration will go away. Some people have said that the concessions, other than the receivership of the MESAAS [Middle Eastern, South Asian, and African studies] department, maybe they’re not that significant.
That in itself is a significant indication of where we are. I’ve been reading all the free-speech policies at different schools. There’s lovely language in the policies about how universities are sites of dissent and how protest is meant to be valued. About how we want to give our students the freedom to question what is in the classroom and what’s outside the classroom. Chicago has a wonderful statement written by David Strauss, who was the head of the ad-hoc committee on protest and dissent, in which he says protest is not only integral to the life of the university because we are a community of dissent, but administrators should strive to problem-solve. So when students break the rules, don’t use discipline. Try to figure out what the cause of their concern is. Since October 7, there has been a demise of that kind of talking and that kind of imagining.
It feels like we are saying goodbye to this beautiful democratic vision of the university and we are now thinking of the university as a place where order must be maintained.
Strossen: All of the demands that the Trump administration made, with a couple exceptions, were made by the academic-freedom council at Columbia and also supported by some student free-speech groups. There was great disappointment on the part of many in key segments of the Columbia community — students, graduate students, faculty members — about successive administrations not protecting free speech in many, many ways, including by both unduly harsh discipline and unduly lenient discipline. And that’s on top of all the complaints about antisemitism.
A line pops into my head from T.S. Eliot: “This above all is the greatest treason / to do the right thing for the wrong reason.” Very recently, the academic-freedom group was asking to meet with the president, and she did not capitulate to their requests — and then capitulates to most of the same when they come from the Trump administration. It’s too bad that did not happen in a voluntary self-generating way within the community.
Secondly, if you look at the demands one by one, in addition to the receivership, the other one that I think is extremely troubling from a free-speech point of view is adopting the IHRA [International Holocaust Remembrance Alliance] definition of antisemitism for potentially punitive purposes. The free-speech community, including the primary author of that definition, Ken Stern, has consistently and in every context said it is not an appropriate basis for reining in speech on campus. It was created for completely different purposes, for documenting comparative antisemitism among European countries. It should never be turned into a speech code.
Dorf: Universities have principles of faculty governance. They have processes for including student voices, and one of the smaller, but I think still important, effects of the kind of pressure campaign you’re seeing from the Trump administration is to completely bypass all of those processes. Some of the things to which Columbia has now acceded I believe would, under Columbia’s own procedures, require faculty-senate approval, would require all sorts of additional measures that are now just going to be eliminated.
This was already an issue during the last year of the Biden administration when the Office for Civil Rights was imposing fairly restrictive policies on speech on various universities — I’m thinking of the CUNY and the Michigan settlements — where they adopted policies that they almost certainly wouldn’t have adopted on their own. One effect of this pressure campaign that perhaps university administrators aren’t all that upset about is to further centralize decision-making authority in university leadership, as opposed to the more-decentralized, more-democratic model that Genevieve was talking about, which we had come to associate with the essence of university governance.
Strossen: You saw that very dramatically with Minouche Shafik’s congressional testimony, when she was basically promising Congress that she would fire a faculty member without going through any of the personnel requirements.
Lakier: There’s an external pressure working on the university, and it’s shoring up certain forces, the forces of presidentialism, and undermining other forces, the forces of faculty governance.
It was noteworthy to me that when I read the House Committee on Education and the Workforce report on antisemitism at Columbia and Harvard – I think they were setting the stage for these actions – it’s remarkable, the focus on the failure of Columbia to adequately discipline protestors and in particular the intrusion of the faculty senate. The faculty senate was such a problem, from the perspective of the house committee, because they in some cases limited the ability of the president or the central administration to impose harsh discipline — in part, I think, because the faculty are much more committed than the central administration is to this democratic, pedagogical notion of the university as a place where there’s lots of dissent.
There is a way to think that the administration is not terribly unhappy — obviously it was not happy to lose $400-million dollars in federal funding — because one of the demands, quite explicitly, is to expand presidential power, to give the president of Columbia ultimate authority over the disciplinary process. I don’t think this is coincidental. I don’t think this is secondary; it’s a central part of what the Trump administration is trying to do with universities and what universities had themselves already been doing.
Strossen: I agree with what you say, Genevieve, but I can cite documentation as well as first-hand observations that, at Columbia, the targeted harassment and bullying and intimidation was such that in many significant instances it was not protected free speech but, to the contrary, undermined the free speech of many other members of the campus community, not only Jewish students. There was this double-whammy failure on the part of the administration to enforce free speech and enforce limits on free speech.
Len Gutkin: There’s some daylight between your point of view and Genevieve’s, it seems to me, which is that to you, Nadine, one way free speech was under threat earlier was because there was too much forbearance, not enough rules, and now schools are developing these sterner sets of rules that are relatively content-neutral.
Strossen: I’m very concerned about the lack of viewpoint neutrality. I think Columbia went from one extreme to the other. Last fall — I’m losing track of time — very early on, Columbia suspended Students for Justice in Palestine and Jewish Voice for Peace, and it was not at all clear that that was for a demonstrated failure to comply with Columbia’s regulations, and it was not at all clear that it was being enforced in a viewpoint-neutral manner. Questions are raised whether they are simply responding to political pressure from either side of the Middle Eastern debate and then just kind of ricocheting from unduly suppressing one type of viewpoint to unduly suppressing another.
Dorf: That underscores the enormous procedural shortcut that the Trump administration has taken here. This was the point of my piece in The Chronicle. It was the point of our letter in The New York Review of Books, which is that there are statutorily required steps, including thorough investigations, the writing of a report, the opportunity for a rebuttal, precisely because of the difficulty of saying in the abstract where free speech ends and harassment begins. The Trump administration simply asserted in its ransom notes to Columbia: You are a violator of Title VI. They don’t go through any of the procedural mechanisms, and so there’s no confidence that they’ve made the underlying factual and normative judgments in a sensitive way.
Lakier: I worry about the rewriting of history. My understanding is that when the encampments first occurred, the universities’ initial reaction across the board was the kind of familiar democratic one, which is the same reaction that they have had in the face of other kinds of sit-ins and encampments, less significant in scale and duration but similar kinds of encampments, sit-ins, takeovers — which is to be pretty tolerant, because of this idea that we’re a university and you try to negotiate with the students and if they leave the president’s office after an hour, that’s OK.
Universities were quite tolerant in the beginning. And in the face of intense donor and political pressure, and then dissatisfaction by many of their Jewish students and faculty, universities started to crack down much more significantly than they had in the past. By the time Columbia moved to suspend SJP and JVP, it was employing disciplinary tactics it had not employed for a long time. It was evading its usual procedures; it was beginning to transform the way in which it imposed student discipline. Columbia became a much more oppressive institution in the face of this political crisis. So did many schools.
So I do worry about the narrative now that they just failed to act — that in the face of these crazy antisemitic students, they failed to act. They were taking action. The story that we are being told now is that that action was not enough, because there was still an effort to be tolerant. The protests profoundly divided the campus, generated intense feelings of fear and a lack of safety among some members of the campus community, which I think was not true of previous protests. And so they did pose a really difficult regulatory challenge for the universities that on the one hand wanted to be tolerant of protests and on the other hand had students, faculty, and alums saying: “Students are afraid. This is chaos. This is not OK.” And so in response they turned to repressive measures.
Procedure matters. The fact that this was all being done in secret by administrators in the teeth of enormous external pressure meant the procedure was not so good. It also meant a lack of legitimacy.
Strossen: Columbia was not sufficiently protecting free speech in two ways: by allowing unpopular viewpoints on campus to be suppressed but also not doing enough to protect against targeted harassment. There have been reports of targeted harassment on both sides of the Middle Eastern debate.
Lakier: The likely effect of these actions by Columbia, by the Trump administration, and by other universities, is to make it extremely difficult for students to participate in pro-Palestinian activism. There’s an attack on universities, on research, on faculty governance — many things. But there’s also a systematic campaign to make it extremely difficult to express an unpopular point of view. That is a huge problem, given what the American free-speech system is supposed to do, which is to protect the ability of minorities to express themselves. Right now it seems incredibly difficult and very dangerous for any students or anyone else to speak, in even a civil way, on college campuses in favor of Palestinian solidarity.
Strossen: There’s an incredible chilling effect on any noncitizen to say anything controversial, even beyond the Middle East — on Ukraine, or DEI, or anything that’s unpopular with the Trump administration.
Dorf: What we have here is a perfect storm of at least five different agendas on the political right and from Donald Trump in particular. One is, as Genevieve just said, favoring a particular viewpoint on the Gaza war and the Israel-Palestine conflict more generally. A second is the longstanding hostility on the political right to universities, which manifests partly over the view that these are elite institutions that brainwash students and present only a one-sided view of the world. That was a target of the right before Donald Trump, and it continues to be. A third is simply that universities are a site of alternative views of the world; they are sites of dissent, of facts, and so attacking universities is part of the attack on all such dissenting institutions and is consistent with the attack on lawyers, on journalists, and so forth. A fourth is the immigration agenda — it is fortuitous from their perspective that so many of the prominent leaders in the student-protest movement, some of whom undoubtedly did cross various lines, are not U.S. citizens, and so that gets caught up in this labeling of anybody who is not a U.S. citizen as a foreign terrorist or someone to be dispensed with, and then the final thing is simply the sort of retributive, petty view of Donald Trump.
Gutkin: Should Columbia have sought an injunction in court? If it had done so, would it have succeeded? Should other colleges when they’re facing, as they inevitably will, the same pressure from the Trump administration — should they seek the injunction that Columbia did not?
On the merits, there’s no doubt that Columbia would have won.
Strossen: On the merits, there’s no doubt that Columbia would have won. I don’t think there are any doubts, on statutory grounds and I think on constitutional grounds as well. But for the reasons that lawyers often counsel their clients to settle even lawsuits that they are likely to win, there are other factors that are relevant, including the economic and intangible costs of litigation and the vindictiveness of the president.
Lakier: Columbia should have sued, and I just note that it should have made it not only Title VI but also a First Amendment argument because I view what the administration did as a very direct example of jawboning or informal coercion, where they are threatening Columbia with harm unless it suppresses the speech of students and others and controls the Middle East-studies department and does other speech-suppressive acts that the Trump administration couldn’t do itself. Just last term, in National Rifle Association of America v. Vullo, the Supreme Court affirmed unanimously that the government is never allowed to use this kind of threat to coerce private parties or punish third-party speech.
Columbia is not the only entity here who can sue. Faculty and graduate students who got their funding cut also have a good claim.
Dorf: I would add three points. In addition to individual students or faculty, there’s the possibility of an organization like the AAUP bringing a lawsuit on behalf of its members. There has been some weakening of associational standing in the relevant case law, but if AAUP or some other organization can identify a member who is losing funding, perhaps pseudonymized, that can be a basis for a claim. Second, there might be some standing problems with particular grants, which are in the nature of a contract between the university and the government. But Genevieve is right; I don’t think that’s a block to a First Amendment claim, and I don’t think that’s a block to an administrative-procedure-act claim, where the grantee, the de facto grantee like a principal investigator, would have standing. Third, I don’t know that Columbia won’t end up suing. The conditions to which Columbia has now acceded were conditions for starting a conversation with the Trump administration. So far as I’m aware, there is no promise that they’re going to get that $400 million restored immediately, or ever, and there’s no promise that there won’t be future cuts. So, it’s possible that Columbia will have done all of these things and still not get the money, in which case they might sue. The fact that the Trump administration is being so unreasonable could actually lead to Columbia and other universities really trying to capitulate but being unable to and therefore having to sue.
Strossen: That raises the counterstrategic consideration that I assume Columbia took into account, which is that it’s a very bad tactic to succumb to this kind of pressure because rather than stifling the pressure, it will simply galvanize more — the reason we supposedly don’t negotiate with terrorists.
I do not understand why the universities did not very quickly band together to speak with a common voice about common interests. Is there any example where there was a unified resistance to this kind of autocratic pressure?
Dorf: The one recent example that occurs to me is that when Trump went after the Associated Press for its failure to call the Gulf of Mexico the Gulf of America, all the other news organizations, including Fox News, stood up for the AP.
Goldstein: Len and I recently interviewed Lee Bollinger, the longtime president of Columbia. He raised the idea that private universities may want to rethink what is allowed to be said on campus, that some opinions are so inconsistent with the humanistic values of the university that we should not respect it on campus. Bollinger wasn’t necessarily endorsing that argument but noting that he’s hearing more people make it. Do you anticipate a formalized rethinking of the historic commitment of private colleges to First Amendment principles?
Strossen: I would very strongly oppose universities moving in that direction.
Dorf: This is an idea that was promoted mostly by people on the left from roughly the mid-’90s until 10/7/23, when its political valence shifted 180 degrees. You might think that therefore this is an opportunity for a cross-ideological consensus either in favor of greater limits on what, for lack of a better term, I’ll call hate speech or for a more generally free-speech-libertarian consensus to develop. But what I think we’ll see is what we always see: Very few people are committed to anything other than free speech for people who agree with me.
Strossen: The first movement for hate-speech codes on campus began earlier than the mid-’90s. Richard Delgado wrote the first piece advocating for it in 1982, and hate-speech codes were adopted in Michigan, in Wisconsin, and other places during the ’80s. At that time, Catharine MacKinnon advocated a concept of sexual harassment that became very broad and laid the seeds for a concept of hostile-environment harassment. Not just targeted misogynistic statements, but statements that people found offensive that had anything to do with sex or gender were being punished. That has a long history from the left.
Lakier: De facto, our free-speech norms have already changed, even if not formally. Any protest, for example, even a protest that we think of as classic political speech, that doesn’t involve any face-to-face harassment but that expresses, say, strongly anti-Zionist views in an aggressive register, is likely to be equated with creating a hostile environment, which is to say this is in the domain of harassment, not speech.
There is a really interesting theoretical and practical question about where speech ends and harassment begins. When I was coming up in First Amendment land, the wonderful Geoff Stone taught me that harassment was face-to-face, but general public address is never harassment. I don’t know if that’s actually how people are understanding the term today.
Finally, the fact that Lee, who is so committed to free-speech values, would suggest that is, to my mind, the surest sign that we’re in a second McCarthy period.
Gutkin: Let’s talk about Mahmoud Khalil, the former Columbia graduate student with a green card who was detained in university housing and is now facing the prospect of deportation. How do you think the situation will play out in the courts? What should universities like Columbia be doing in the face of actions from immigration authorities?
Lakier: One of the singular methods of speech repression during the McCarthy era was deportation. Then, as now, there was an association between holding disfavored views and being foreign. Throughout history, we’ve seen an anxiety about foreign radicals. It is a familiar technique, a terrible technique, a brutal technique. People are being profoundly punished for protected speech.
Strossen: There is a very strong First Amendment argument here, not only on behalf of noncitizens but on behalf of Americans who have the right and interest in receiving communication and engaging in exchanges with these individuals.
Dorf: Universities don’t have to facilitate the arrest of their students, and shouldn’t. But they’re not permitted to block that sort of action by federal law enforcement. To me, there are two fundamental problems here. One is that Congress has delegated incredibly broad power to the president with respect to immigration or, in the case of Khalil, with respect to the secretary of state, who can just say, even though you’re a permanent resident, married to a citizen who’s expecting a child in the next month, “Off you go.” If that’s not a violation of due process, it’s at the very least a grossly irresponsible delegation of power from Congress to the president.
Far too many people — members of Congress and their constituents — are acquiescing in and even enthusiastic about this assault on the institutions of democracy. So yes, universities and the people who work in them, like us, should be screaming about this, but we can’t force people to listen. At some level, the problem is the American people.
Strossen: As early as 1940, long before the Supreme Court began to strongly protect free speech or, for that matter, other individual rights, it expressly held in a case involving a communist from Australia, a noncitizen labor organizer, that noncitizens have exactly the same First Amendment rights as American citizens — in the context of criminal punishment and civil penalty. So I’m optimistic about the Supreme Court ratifying, ultimately, that deportation is subject to the same First Amendment constraints as criminal and civil penalties.
Dorf: The piece of this that worries me the most is the prospect of the administration violating court orders. If we can’t rely on the courts, none of the other things matter. The illegality could be blatant. You can get a court order, but unless we can get compliance with these court orders, that’s not going to do much on the ground.
Strossen: That’s the ultimate fear. But there’s a penultimate one: What if you can’t get lawyers to bring the cases to court?
