The 360: The higher education compact and the ‘unconstitutional conditions’ doctrine

The Trump administration sent the Compact for Academic Excellence in Higher Education to a handful of colleges - both private and public - with requirements ranging from limitations on numbers of international students, restrictions on transgender people using restrooms or playing in sports aligned with their gender identities, tuition freezes, requirements for standardized testing for admissions, and many other areas regarding the expression of speech, ideology and academic freedom.

Of the original nine schools that received the document, seven universities have indicated they are not planning on signing.

Joseph Fishkin is a professor at UCLA School of Law whose research focuses on constitutional law, election law, antidiscrimination law and the interaction of law and political economy. Fishkin can comment on how the compact has been misunderstood by the press, why it is unconstitutional, and why universities should refuse it.

He says the compact is:

"A sweeping assertion of power over universities that has no precedent outside of authoritarian regimes."

"Most of the requirements in the compact violate the First Amendment, from the demand to shut down academic departments that "belittle" "conservative ideas" to the demand that universities punish professors or students whose speech the government decides "supports" groups such as "antifa" or "Hamas," to the demand that the university make each unit conform to the administration's idea of ideological diversity."

"Clear black-letter constitutional doctrine holds that if the government can't make a demand by law - and it can't make these, they violate the First Amendment - it also cannot impose the same requirements as conditions on grant funding. This is called the "unconstitutional conditions" doctrine and the compact is a very obvious example of it."

Asked why universities should refuse it, Fishkin states:

"Both our democracy and the future of our world-leading academic research institutions depends on free thought, independent inquiry, and freedom from ideological control by the federal government. We need grants allocated on the basis of merit, not on the basis of which schools cozied up to the ruling political party. Universities can make sure all this is preserved by acting together to reject this unconstitutional and deeply destructive compact."

Also check out Fishkin's piece in Inside Higher Ed.