Forty University Law School faculty members claimed in a letter sent to University leaders the morning of Oct. 17 that the Compact violates the constitution and should be rejected. The Compact was a proposal by the Trump Administration sent to nine universities, and it offered preferential funding and resources in exchange for changes to hiring, admissions and academic freedom, among others. The Law School faculty letter was sent hours before the “Compact for Academic Excellence in Higher Education’s” rejection by the University.
The letter — signed by 40 Law faculty members — asserts that the Compact is a “coercive exercise of conditional spending” and “proves offensive to freedom of speech and association.” The faculty members said they hoped the University will reject the Compact due its alleged unconstitutionality and its threats to free speech and expression, academic achievement based on merit and independent research and learning.
“No public institution, including the University of Virginia, can ever permissibly agree to terms [of the Compact] that, by themselves, would compel the institution to violate the Constitution,” the letter reads.
Interim President Mahoney sent a letter to the Department of Education rejecting the Compact the evening of Oct. 17, saying that the University will not accept any preferential treatment for federal funding. However, Mahoney also said in his letter that the University agrees with many of the Compact’s principles and looks forward to collaborating with the federal government to improve higher education.
The letter from the Law School faculty was sent to University Counsel, members of the Compact Working Group — a group formed by Mahoney to advise him on a response to the Compact, Mahoney and other relevant stakeholders. Law faculty drafted and signed the letter, and every resident faculty member at the Law School was given the opportunity to sign with the exception of the Dean, Vice Dean and Mahoney, according to Law Prof. Josh Bowers.
University Counsel acknowledged receipt of the letter according to Bowers.
The letter posits that the Compact may have been framed as an offer, but in practice, it was an “unconstitutional threat” — according to the letter, if universities were to choose to develop other values than those specified by the ten points of the Compact, they would forego federal benefits including research funding, student loans and grant programs and withdrawal of non-profit tax status.
From a legal standpoint, the letter says Congress is permitted to enforce limited contingencies that universities must follow in order to receive federal funding. However, the Compact was an action of the Trump administration, not an action of Congress, and the Trump administration does not hold this right, the letter says.
Even supposing that the Compact did originate from Congress, the letter says it would be unconstitutional for the “offer” to be crafted so that universities that reject the Compact are worse off. For example, according to the letter, the Compact contains a threat that could entail revoking universities’ tax status, which is not a power based in the law.
Considering the promise of federal funding preferentially doled out to signatories, the Law professors say that these funding conditions are problematic because they are not directly related to projects receiving the funding and are significantly ambiguous.
“There is simply no nexus between the provision of a medical grant to study infectious diseases, for example, and the Compact’s mandated changes to the grading system and tuition policies at the College,” the letter reads. “A federal effort that threatens to ‘terminate … grants’ through non-germane, unclear, and far-reaching conditions could convert a permissible form of ‘mild encouragement’ into an unconstitutionally coercive ‘gun to the head.’”
Another violation of the Constitution is the requirement that signatories of the Compact maintain a “vibrant marketplace of ideas” in which “no single ideology [is] dominant.” The letter says that this requirement may seem harmless, even positive, at face value, but problems arise with its execution — namely encroachments on free speech and continual auditing of political affiliations.
“This kind of after-the-fact policing of speech produces not a free market, but a content-driven, government-controlled market,” the letter reads. “We believe that such a manufactured marketplace of ideas would prove noxious to cherished First Amendment values.”
According to the letter, the University can pursue ideological diversity independently, but the government cannot mandate this practice. The letter says that the federal government may not constitutionally enforce restrictions to speech or ideologically-based quotas on admissions or hiring, nor can it selectively protect certain viewpoints and call it “institutional neutrality,” as various Supreme Court decisions have affirmed. Such supporting decisions that are provided in the letter include Pickering vs. Board of Education and Keyishian vs. Board of Regents, which say that teachers may not be fired from speaking on issues of public importance nor from political party membership.
Beyond the constitutionality question of institutional neutrality, the letter asks if this neutrality was the goal of the Compact, or if the goal was instead to demand attention or special protection for certain values — “Western” and “conservative” values — over others.
The letter also questions the Compact’s priority of institutional neutrality — if this objective does aim for complete ideologically balancing, the letter asks how the Department of Education could legally enforce compliance while adhering to the Federal Privacy Act of 1974. The Act prohibits federal agencies from maintaining a record of how individuals within the University exercise their rights to freely express themselves. According to the letter, the government could not legally enforce institutional neutrality while simultaneously abiding by this Act.
Should some universities choose to sign the compact, the letter said that these universities may not be able to constitutionally enjoy the funding and other benefits outlined by the Compact. Universities that do not sign the Compact could argue that the federal government is favoring the expressive actions of the signatory universities, which is unconstitutional.
“The federal government’s allocation of Compact benefits could, itself, constitute an instance of content-based regulation of expression in violation of the First Amendment,” the letter reads. “In turn, the university that had bound itself to the Compact would have sacrificed institutional self- governance for no realizable tangible advantage.”
Seven of the nine universities who received the initial invite have rejected the Compact thus far, with Vanderbilt and The University of Texas still open to an agreement with the federal government.
In Mahoney’s letter rejecting the Compact, Mahoney said that the University seeks no special treatment in exchange for resources because the agreement could undermine the integrity of the University and erode American confidence in higher education. However, Mahoney did not reject the idea of a future partnership with the federal government. He said the University agrees with many of the principles outlined in the Compact and looks forward to “working together” to improve higher education.
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