On Oct. 15, the Northwestern Faculty Assembly voted overwhelmingly in favor of a resolution opposing “any capitulation on the part of Northwestern University” to the Trump Administration’s “Compact for Academic Excellence in Higher Education” or to “similar demands that undermine constitutional rights, democratic principles, faculty governance, institutional autonomy, and academic freedom.” The vote was 595 for the resolution, four against it and eight abstentions.
Some speakers at the Assembly went further, urging NU to sue the Trump administration for withholding $790 million in federal grant funding. This position echoes that of a spring resolution sponsored by the NU chapter of the American Association of University Professors. The earlier resolution stated: “The university’s legal resources shall be used to defend the rights of Northwestern University and its faculty, students, and staff from unlawful federal actions.” The spring resolution won the faculty’s support by a lopsided vote of 338 to 83.
I count myself among those who believe that it is well past time for NU to challenge the Trump Administration in court. There is a strong case to be made that, at minimum, the Administration’s actions and decisions involving the funding freeze violate the First Amendment to the U.S. Constitution and Title VI of the Civil Rights Act of 1964.
Indeed, federal courts in Massachusetts and California have enjoined similar funding freezes at Harvard University and at the University of California system, ordering hundreds of millions of dollars in funding restored in each case.The Harvard and University of California plaintiffs prevailed on claims involving the First Amendment and the Administrative Procedure Act. The Harvard plaintiffs prevailed on Title VI claims as well.
In the Massachusetts case, Judge Allison Burroughs held that the defendants violated the First Amendment by terminating grants for impermissible, viewpoint-based reasons, including perceptions of “wokeness” at Harvard. Although the defendants claimed that their actions were motivated by a desire to protect Jewish students, Judge Burroughs found it “difficult to conclude (from the record) anything other than that the Defendants used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premiere universities.” Relatedly, Judge Burroughs held that the defendants had violated Title VI’s evidentiary and procedural requirements when they wielded it to punish Harvard for alleged antisemitism.
To be sure, NU reportedly has never received any official “demands or requests from the Trump administration, including the Justice Department, the Education Department and the White House,” as President Henry Bienen explained in his recent interview with The Daily. The absence of an official demand letter poses two related challenges.
First, there is no formal statement to which NU can point to demonstrate that the government froze its funding for viewpoint-based reasons or for alleged Title VI violations. Thus, the defendants might argue that NU can, at most, make out a claim for breach of funding contracts.
Second, if NU were left only with such a contract claim, its ability to sue in federal court would be impacted by the Tucker Act, which directs contract disputes with the federal government to the Court of Federal Claims. In contrast, as Judge Burroughs explained, “First Amendment and Title VI claims do not ordinarily fall within the ambit of the Tucker Act, which is very specifically contract-focused.”
Even without an official demand letter, however, NU has a strong case that the funding freeze is viewpoint-based and that it violates Title VI. First, courts ought not to reward government actors for refusing to explain themselves through one particular channel when they take consequential actions — financially devastating ones, in this case — and when ample evidence of their motivations is available elsewhere.
Second, one can find such evidence in multiple public statements and actions by federal officials. With respect to Title VI, the Trump Administration has announced investigations into alleged violations by NU. Indeed, when The Daily first reported on the funding freeze in April, it noted that the White House had referred it “to a tweet by Fox News senior producer Patrick Ward. Senior administration officials told Ward the funding freeze was a result of ‘ongoing, credible and concerning Title VI investigations,’ according to the tweet.”
With respect to the First Amendment, administration officials, including Trump and Education Secretary Linda McMahon, have publicly described their attacks on universities as attacks on left-wing ideologies. Judge Burroughs, as well as the federal district court judge overseeing the UC cases, cited such statements by Trump and McMahon — statements made in multiple forums ranging from executive orders to social media posts — to support their findings of viewpoint discrimination.
NU, in short, has a very solid case to make to a federal court. Doing so won’t be easy, but it strikes me as the only reasonable response to the federal government’s onslaught against academic freedom in the United States.
Heidi Kitrosser is the William W. Gurley Professor of Law at the Pritzker School of Law and a member of the American Association of University Professors. She can be contacted at [email protected]. For more information about AAUP, visit aaup.org. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.
