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With thanks to my colleagues Andrias, Bulman-Pozen, Greene, Johnson, Kessler, Metzger and PozenAs
you will have read in the news, Columbia university is under attack by
the US authorities from several different directions right now. The
assault involves the detention and threatened deportation of former
students of the University, who were associated with the protests of
last year. There have been threats that terrorism law will be brought to bear. The most dramatic action in terms of financial impact is the cancellation of grants and contracts worth about $400 million. This is having an immediate impact on research and training at the University. On Thursday March 13, the president of Columbia University received a remarkable letter
from the General Services Administration, the Department of Health and
Human Services, and the Department of Education. The letter states that
the university must meet numerous requirements by March 20, 2025, “as a
precondition for formal negotiations regarding Columbia University’s
continued financial relationship with the United States government.” This
letter amounts to an extraordinarily comprehensive and intrusive
assault on the autonomy of the University. As one close observer of the
scene has noted: “I'm not sure it will be apparent to outsiders how many
of these items are basically grievances from extremist alumni group
chats, translated directly into federal policy.” Since
the attacks on the Univesity began and particularly following the
letter of March 13th, many of us have been craving a vigorous legal
response to the Trump administration's unprecedented campaign against
our University. As far as the revocation of grants and the letter of
March 13th is concerned, this has now come in the form of a memo by a
powerful lineup of constitutional, administrative and antidiscrimination
lawyers from the Columbia Law School originally posted to the
Balkinization blog. The rebuttal is devastating and comprehensive. It was a tonic to read. I reproduce it with permission below. Saturday, March 15, 2025 A Title VI Demand Letter That Itself Violates Title VI (and the Constitution) David Pozen By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen On Thursday, the president of Columbia University received a remarkable letter
from the General Services Administration, the Department of Health and
Human Services, and the Department of Education. The letter states that
the university must meet numerous requirements by March 20, 2025, “as a
precondition for formal negotiations regarding Columbia University’s
continued financial relationship with the United States government.”
These requirements include changes to student disciplinary policies and
procedures; changes to rules on university governance, campus security,
and campus life; placing the Middle Eastern, South Asian, and African
Studies department “under academic receivership”; and “comprehensive”
reform of admissions to various schools within the university.
As
scholars of constitutional law, administrative law, and
antidiscrimination law who teach at Columbia, we feel compelled to point
out some of the most glaring legal problems with this letter. Title VI Standards. As
the basis for the funding cutoff, the letter cites the university’s
failure to protect students and faculty from “antisemitic violence and
harassment in addition to other alleged violations of Title VI and Title
VII of the Civil Rights Act of 1964.” The letter offers no explanation
of the alleged violations, no mention of a completed investigation, and
no account of how Columbia has been deliberately indifferent to ongoing
antisemitic discrimination or harassment on its campus—perhaps because
any such account would be implausible at this time. There is therefore no apparent statutory basis for a funding cutoff.
Title VI Procedures. Prior to a funding cutoff, Title VI requires
“an express finding on the record, after opportunity for hearing,” of
any failure to comply with the statute, as well as “a full written
report” submitted to House and Senate committees at least 30 days before
the cutoff takes effect. In defiance of these requirements (among
others), the agencies are purporting to immediately freeze federal funds
and to impose preconditions that the university must satisfy in advance
of “negotiations.” The statute does not allow this approach.
Title VI Remedies. Even
if proper notice had been given, a hearing had occurred, and a
statutory violation had been found, Title VI does not permit blanket
funding removals. Rather, it requires
that any removal be “limited in its effect to the particular program,
or part thereof, in which noncompliance has been so found.” There has
been no allegation—much less a finding—of noncompliance in the many
parts of Columbia from which funding has been cut, including from urgent
medical and scientific research. Moreover, any permissible remedy would
have to be tailored to addressing unlawful discrimination. The
agencies’ demands exhibit no such tailoring and, on the contrary,
effectively tell Columbia to rewrite its policies on free speech,
student discipline, public safety, undergraduate admissions, and more.
Indeed, the remedies demanded in the letter not only far exceed the
power of the agencies under Title VI; they also raise serious
constitutional concerns.
Academic Freedom and the First Amendment.
The federal government enjoys broad discretion to provide funds to
private institutions, including universities. The Supreme Court has made clear,
however, that the government “may not deny a benefit to a person on a
basis that infringes his constitutionally protected … freedom of speech
even if he has no entitlement to that benefit.” Simply put, funding
conditions may not impose unconstitutional burdens on First Amendment
rights. Many of the agencies’ demands risk compromising academic
freedom, which the Supreme Court has recognized
as “a special concern of the First Amendment.” The Court has emphasized
the importance of academic freedom at universities in particular, stating
that “[t]he essentiality of freedom in the community of American
universities is almost self-evident.” In light of these core First
Amendment principles, Title VI has never been understood to allow
agencies to insist that a university restructure academic departments or
abolish internal governance bodies, for example, as a condition of
receiving federal funds.
Unconstitutional Vagueness. The Supreme Court has further emphasized
that “[b]road prophylactic rules in the area of free _expression_ are
suspect” and that “[p]recision of regulation must be the touchstone in
an area so closely touching our most precious freedoms.” Yet for several
of the agencies’ demands implicating freedom of _expression_, it is
unclear what the university must do to comply. For example, the letter
offers no details as to what “federal law” or “policy” the university’s
admissions practices contravene, and it offers no guidance as to why the
university’s existing “time, place, and manner” rules are inadequate.
The vagueness of the agencies’ demands compounds the threat to academic
freedom and rule by law.
Due Process.
A withdrawal of federal funding without adequate procedural safeguards
likely violates the Due Process Clause of the Fifth Amendment as well as
Title VI. The Supreme Court has stated that, in determining what
constitutes adequate process, this clause requires
an assessment of “the private interest that will be affected by the
official action”; “the risk of an erroneous deprivation of such interest
through the procedures used”; “the probable value, if any, of
additional or substitute procedural safeguards”; and “the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.” The fact that Congress established the
statutory procedures described above speaks to its own assessment of
these factors. In any event, immediate withdrawal of funds without
reference to a completed investigation—and in the absence of an
opportunity for an administrative hearing or voluntary compliance with
legitimate Title VI requirements—is not consistent with the Fifth
Amendment.
This
is a preliminary analysis. We do not mean to suggest that it is an
exhaustive list of problems with the demand letter, nor do we mean to
elevate our concerns about this matter over concerns about other recent
actions taken by the executive branch. We focus on the legal infirmities
of the letter’s Title-VI-related demands because they have received
relatively little attention to date. While we are in no position to
dictate the university’s response, we hope that this analysis helps show
how these demands threaten not only Columbia’s funding for critical
academic research but also fundamental legal principles and the mission
of colleges and universities across the country.
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