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The announcement states further that Columbia did not respond to a March 3 notice from the task force “that it would conduct a comprehensive review of the university’s federal contracts and grants in light of ongoing investigations under Title VI of the Civil Rights Act.” Friday was March 7. The announcement that four days was too long for Columbia to take before doing or saying something in response does not make clear what the administration expected the university to do or say in that short time frame.
Wait, can they actually do that? The answer is plainly no.
As a preliminary matter, the claim that Columbia has been ignoring complaints of antisemitism is false. Among other steps, Columbia called the NYPD to arrest its own students, created its own quite credible process for examining and responding to antisemitism on campus, and accepted the resignation of its president, who was pressured to step down by none other than the Republican speaker of the House.
But even if Columbia has fallen short — even if its actions to this point have violated its obligations under Title VI to protect students against a hostile environment — the Trump administration task force’s blunderbuss response is illegal.
A federal statute requires program-by-program evaluation of alleged civil-rights violations by federally grant-funded entities, and further requires that a funding recipient threatened with a cutoff be given “an opportunity for hearing,” and limits any funding cutoff “to the particular program, or part thereof, in which ... noncompliance has been ... found.” Moreover, no funding cutoff can occur if compliance can be achieved going forward “by voluntary means.” The statute also requires, as a prerequisite to a funding cutoff, that whatever agency or agencies are cutting off funds forward a report explaining why to the relevant committees in Congress, and even then, delays any funding cutoff for at least 30 days after the filing of the report. That’s 30 days after the government agencies file a report, not four days after the university receives notice of an investigation.
The Trump administration’s task force complied with none of the foregoing statutory requirements. Therefore, the funding cutoff is blatantly unlawful.
And yet, it appears that instead of suing, Columbia is negotiating. Here’s reporting from NPR:
In a statement to NPR, a Columbia spokesperson said the school was reviewing the announcement and pledged “to work with the federal government to restore Columbia’s federal funding.”
Is Columbia simply capitulating? Not necessarily, but Columbia’s apparent efforts at appeasement could naïvely rest on a false assumption about the modus operandi of the Trump administration.
In a typical Education Department investigation into alleged Title VI or Title IX violations, universities engage in negotiations over what they’ve done and what they plan to do going forward. As I explained recently, the process is costly and time-consuming. It will often end on terms more favorable to the department than the law demands, as it would be interpreted by the courts if litigated. Thus, Columbia could be assuming that, despite the Trumpian bluster, Friday’s action is really just a hyperbolic announcement of the typically protracted process. By pledging to “work with the federal government,” Columbia may be counting on the statutory safe harbor for funded institutions that voluntarily comply.
If so, that could be a serious miscalculation. After all, Friday’s action is not a threat of some potential future cutoff. It is an announcement of the “immediate cancellation of approximately $400 million in federal grants and contracts to Columbia University.”
Why not sue now to restore the funding unless and until the administration carries out the statutorily mandated procedural steps?
I don’t have any inside information, but it’s possible that Columbia’s leadership has one or more of at least three worries. First, even though the $400-million cutoff is illegal as punishment for an alleged Title VI violation (absent the process described above), it’s possible that the administration has legal authority to cancel some of the funding for various projects at Columbia through other more-streamlined processes based on other grounds. Second, Columbia leadership may be rightly worried that even if it obtains a restoration in its funding under existing grants, the Trump-led agencies will deny applications for future grants. And third, there is a risk that Congress could punish Columbia through funding cutoffs, which, because they affect spending, would be achievable via reconciliation and thus not be subject to the filibuster.
In addition to all of the foregoing, this episode and others — including the threats to Georgetown Law Center last week and the anti-DEI crusade affecting nearly every educational institution in the United States — raise questions under the First Amendment.
Bottom line, even apart from any First Amendment concerns: As always, it seems, the answer to the question of whether the Trump administration is acting legally is no, but the answer to the question whether the administration can get away with it remains to be seen.
This article is republished from the Dorf on Law blog.
