Why Colleges Can No Longer Trust the Courts

In July, Columbia University settled with the federal government over alleged antidiscrimination violations, agreeing to pay over $200 million under terms that required further monitoring. That same month, Brown University agreed to a $50-million settlement and the University of California at Los Angeles reached a $6-million settlement in a lawsuit brought by Jewish students and faculty. (UCLA remains under fire after a Department of Justice finding of civil-rights violations, and the Trump administration has indicated it is seeking a $1-billion settlement.)

Then there is Harvard, which recently won a lower federal court case against the Trump administration, which the administration intends to appeal. The Department of Education has also placed Harvard on heightened cash monitoring out of “growing concerns” about financial instability (caused, ironically enough, by its ongoing battle with the federal government).

The federal government has indicated that these prominent targets of intervention will only be among the first in continuing efforts around the country to reshape higher education. It pursued an unprecedented “compact” with nine universities, then opened that up to all of higher education. The compact could potentially give the administration new, sweeping powers to shape how higher education functions. The compact is styled as an offer to give institutions the opportunity to gain preferred access to federal funds — but an “offer” backed by an implicit threat is really more of a demand.

On campuses nationwide, these events have led to bewilderment, outrage, and a common question: Is this legal?

The rule of law was first fully incorporated into the academic experience around the time the law professor Charles Alan Wright gave his famous 1969 Oliver Wendell Holmes lecture at Vanderbilt: “The Constitution on the Campus.” As Wright put it:

Wright’s remarks defined a period of foundational jurisprudence for higher education, spanning Sweezy v. New Hampshire (1957), Keyishian v. Board of Regents (’67), and Healy v. James (’72). These cases articulated the connections between the First Amendment and academic freedom.

Sweezy is perhaps most famous for the concurring opinion of Justice Felix Frankfurter acknowledging four foundational academic freedoms by quoting from a statement written by scholars themselves — the freedoms of “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Keyishian held that academic freedom is a “special concern of the First Amendment.” And Healy cast higher education as the “marketplace of ideas.”

In the decades that followed, guided by this case law, the Supreme Court showed deference to the academy, and presidents and federal regulators were by and large respectful of academic freedom. In comparison with other industries, higher education was regulated only gently — often facilitated by congressional largesse and federal regulatory efforts via tax breaks, generous grants, and student-loan programs. The 1965 Higher Education Act was reauthorized regularly in the ’70s, ’80s, and ’90s, and in that period higher education came to enjoy the security, protection, and basic assurances of predictable rights and processes.

That time — and that legal context — is now past.

In recent years, the Supreme Court has repeatedly shown a willingness to reject or fundamentally reframe precedent higher education once relied upon. The executive branch has rewritten the regulatory playbook with an aggressive and adversarial stance toward the sector. And, in the face of immense leverage over higher education via federal funding, staggering fines, and public pillorying, colleges have been forced to settle with or acquiesce to demands from the federal government — knowing that they ultimately may lose battles in court, or, at best, win Pyrrhic victories in lengthy, costly litigation.

And yet, in the face of these existential threats, academe continues to rely on 20th-century legal norms rooted in deference to the academy, particularly around the issue of academic freedom. Harvard cited and quoted from several Supreme Court opinions on academic freedom including Keyishian and Healy in its complaint in its case against the federal government. An amicus brief from the American Council on Education in support of Harvard cited both Keyishian and Sweezy.

These types of legal arguments, once sure to carry the day, now fall on deaf ears, backfire, or fail to be adjudicated in court. The Supreme Court is rewriting precedent and claiming final authority on virtually every issue of constitutional and regulatory interpretation. But the court recently has also shown profound operational deference to the executive branch via the “shadow docket” — the Supreme Court’s longstanding but previously rare use of an emergency procedure that lacks full court briefing or oral argument and produces rulings with perfunctory rationales or no rationale whatsoever.

This new legal context is further clouded by diminished federal respect for legal authority. The Trump administration has flirted with the idea of contesting the ultimate authority of the judicial branch. But there is no need to challenge the high court’s Maginot Line if the administration can simply flank it: The power to force colleges to capitulate out of court keeps issues from landing in the hands of judges.

Academic legal controversies are now litigated in the court of public opinion. When Congress summoned three college presidents to hearings on antisemitism in December 2023, the presidents misunderstood their task and their audience. Claudine Gay, then-president of Harvard, was asked point blank whether calling for genocide violates Harvard’s rules prohibiting bullying and harassment. In textbook legalese she replied, “It can be, depending on the context,” and was subsequently excoriated by Congresswoman Elise Stefanik for her efforts. She was out less than a month later. As Brian Rosenberg wrote, “Remarks that might have been fitting at a meeting of the American Council on Education created, on Capitol Hill, a train wreck.”

Making matters more difficult, public opinion is squarely set against higher education. According to a recent Gallup poll, seven in 10 Americans say the sector is going in the wrong direction. Large universities are a prime target, and it’s easy to understand why. Harvard University’s resources exceed those of many sovereign nations. Ohio State University’s annual budget is around $11 billion, while Princeton University, with just 9,000 combined undergraduate and graduate students, has a budget of over $3 billion a year.

A swirl of criticism — elite, out of touch, dominated by the radical left — has made it winning politics on the right to cast intractable national issues as academic problems. Our nation struggles with sexual violence, antisemitism, illegal immigration, and a lack of economic opportunity. Colleges thus have been blamed for Title IX and Title VI violations, become targets for immigration enforcement, and have been called out in various ways for not providing return on investment for students.

The legal result is that the four freedoms of Sweezy are now taken as four targets; “special concern” for the sector now reflects its apparently unacceptable level of autonomy; and the marketplace of ideas is now deemed unfair to the political right. Higher education has not received or accepted these messages.

When exactly did higher education’s legal protections collapse? The foundation was chipped away at for a decade, before a darker, larger turn around 2022. In a bitterly divided decision in 2010, Christian Legal Society v. Martinez, the Supreme Court upheld an “all-comers” policy for student organizations at Hastings College of Law (now UC Law San Francisco): The dissenters, including the chief justice, excoriated the institution and signaled their mistrust of administrative decision-making. In 2014, the Supreme Court gave states the right to dictate race-neutral admissions standards to public colleges in Schuette v. Coalition to Defend Affirmative Action. And, in 2016 in Fisher v. University of Texas (known widely as Fisher II because it was the second time the Supreme Court considered the matter), the Supreme Court upheld the Texas admissions system by a slim margin: Commentators correctly speculated that the end of race-conscious admissions was coming.

Then, in 2022, came Egbert v. Boule. On its face, the case seemed distant from campus controversies: It involved a dispute between a federal border-patrol agent and a bed-and-breakfast owner straddling the U.S.-Canada border. The owner claimed the federal agent retaliated against him and violated his First Amendment rights, by, among other things, referring him to other federal investigative agencies for adverse action after the two were involved in a border dispute. The court’s decision refused to extend a doctrine that might have held federal officials personally liable for depriving First Amendment rights. It effectively allowed federal officials to interpret and enforce the law — even discarding precedent — with a shield of individual immunity.

There is a direct link between Egbert and a July 29 memo from Attorney General Pam Bondi identifying “legal pitfalls of DEI programs” and calling “race-based scholarships or programs” “unlawful.” Even if Bondi’s memo were incorrect in her interpretation of the law, she would face no individual legal risk. It is this personal immunity that can embolden officials to push into legal gray areas to advance political goals — and leaves colleges with significantly limited recourse in pushing back other than by way of seeking to enjoin agency action. If an injunction against an agency is issued with respect to one action, a federal official can simply recast that action in another form, risking at most another injunction. The July 29 memo was similar to previous federal regulatory actions that had been enjoined, and was cleverly redrafted to make it more injunction proof. Defending higher education thus comes to feel like playing Whac-a-Mole.

SFFA v. Harvard, in 2023, was definitive proof of the erosion of deference to higher education. When Harvard asked for faith in its admissions decision-making, the Supreme Court poignantly said “no.” Sweezy was an obvious precedent in the SFFA case for the court to surmount, with direct relevance on the academic-freedom question of “whom to admit.” In Sweezy, a professor who was called to testify in a state legislature’s investigative hearing during the Red Scare refused to do so at risk of being held in contempt. The court in Sweezy backed the professor, yet in SFFA v. Harvard, the court made no attempt to distinguish, reconcile, or even cite Sweezy. Sweezy simply ... disappeared. This disappearance of Sweezy is particularly poignant today in light of Trump administration actions directed at Harvard.

Executive-branch regulatory enforcements post-Egbert are free to adopt a more politicized, muscular approach. The tone of Education Secretary Linda McMahon’s May 5 letter to Harvard is the new norm: “Harvard is engaging in a systemic pattern of violating federal law,” McMahon wrote. “Where do many of these ‘students’ come from, who are they, how do they get into Harvard, or even into our country — and why is there so much HATE?” Dear Colleague letters now read more like cease-and-desist demands. The Columbia settlement is notable for its staggering fine and the monitored receivership involved — with the threat built into the agreement that the federal government may return at any time to investigate, scrutinize, and criticize. That settlement was reached outside the parameters of a consent order in court — needless to say a court might have had issues with the voluntariness of the settlement.

Harvard has won a recent victory — or has it? — in a lower federal court. The recent 84-page ruling in favor of Harvard itself clearly anticipates further judicial review of the matter and possible rebuke from the Supreme Court. Will the ruling spur the federal administration to dig in even deeper against Harvard, or will the ruling be leverage for a more favorable settlement? Even Harvard’s president reacted to the ruling with only guarded optimism. It is clear to everyone that courts ultimately may not resolve this dispute — or, if they do, they might even reject or reformulate 20th-century precedent. The spirit of Sweezy has died. The Supreme Court has often spoken of the chilling effects of government action on First Amendment rights, but an ice age has come to higher education.

Relying on the legal past may only lead to greater disappointment for higher education. Harvard must contend with the reality that arguments that resonate in lower court proceedings will founder on any appeal to the Supreme Court. Even an ultimate “victory” in the Supreme Court could come at a devastating cost to Harvard as litigation drags on and other federal-enforcement efforts target the school. (Last month, the Education Department announced it was placing Harvard under “heightened cash monitoring,” something typically reserved for institutions facing financial failure.)

This is the new legal landscape. Academic freedom and institutional-autonomy arguments can and will be weaponized against a university. Asserting higher education’s status as a once-valued institution might not only be futile in court, but risks falling into a larger legal trap.

How can universities better contend with any overreaches of the Trump administration? Successful 21st-century legal strategies must reflect the fundamental shifts in the rule of law for higher education and find new arguments — such as identity-based rights of institutions. Academic speech, expression, activity, and association may or may not have special status under the First Amendment going forward. But universities are entitled to no less protection under the First Amendment than any person or association of persons — or corporation.

Colleges should make more use of a landmark 2010 precedent in today’s battles on campus — Citizens United v. FEC. The case is best known in the campaign-finance world for striking down — on First Amendment grounds — federal election-commission restrictions on corporations and unions regarding political spending. Crucially, the Supreme Court held that restrictions on speech rights may not rest on the identity of the speaker: “The Government may not suppress political speech on the basis of the speaker’s corporate identity.” Constitutional identity offers a host of protections including freedom from forced speech, freedom from government-imposed orthodoxy, freedom of association, and freedom from overbroad, vague, prolix, or retaliatory regulations that chill core First Amendment rights. Arguments based on rights associated with identity are not arguments to “trust us” — or that higher education is “special” — they are based on a distrust of governmental overreach that was woven into the fabric of the Constitution from its inception. It is time to flip the script and recognize that universities are not complaining about being thrown out of the palace, but of being mistreated as individuals. Even if our sector is mistrusted or disliked, it is entitled to its rights.

Perhaps higher education has been reluctant to embrace the implications of Citizens United because the case focused on political speech, and thus comes with questions around tax-exempt status. (Citizens United was a 501(c) (4) corporation with a different tax status from colleges). But let’s be clear: The federal government has already effectively altered the tax-exempt status of many universities, including Harvard. Perhaps the sector’s reluctance is driven by criticism of Citizens United lamenting the creeping “personhood” of corporations — bundled with resistance to imagining higher education as a business in the first place. Or perhaps such reluctance arises from concerns that Citizens United has its clearest application to private institutions, while the application to public universities remains murky. Nonetheless, higher education must work with the state of the law as it is and not as it might be or once was.

Higher education long believed it was different, special, and deserving of special status under the First Amendment. Those views are now quaint — and dangerous. Federal support is a legal Trojan horse and the government that subsidized and supported colleges now seeks to control them. Institutions embraced governmental largesse and exceptionalism, relied on courts to guardrail their rights, and grew exponentially in the 20th century. But in a twist of history that both the executive branch and the Supreme Court now brush aside, a government built upon deference, respect, and federal noninterference in higher learning now asserts micro- and macro-control under the auspices of law. The most powerful legal arguments in this century may lie not in attempting to reclaim or salvage the past but in imagining higher education on an equal playing field with other persons and corporations with respect to rights inuring to identity.

A fall from legal grace is hard to accept, but letting go may be essential for progress. Higher education may not be special legally, but it is not fair for it to be specially mistreated. It is time to focus more on winning strategies in the court of public opinion and developing greater support in that forum. Simply because higher education was crushed in the first quarter of the new legal milieu does not mean that the game is lost. It is difficult to be on the wrong side of the law, as colleges are finding out, but Americans always have had a fascination with outlaws — especially those who believe in the righteousness of their causes.