Since it was announced in November, Northwestern’s deal with the Trump administration has caused some students, faculty and alumni to express concern surrounding NU’s autonomy after it gave into federal demands.
But two Pritzker professors — Paul Gowder and Heidi Kitrosser — went a step further, arguing that the agreement violates federal law. Gowder also said the deal invites the federal government to go back on its terms by claiming that NU has violated the agreement.
“It begs for the Trump administration to go back on the deal, to try to take away research funds again or engage in other sanctions again,” Gowder said.
NU and the federal government reached an agreement to reinstate millions of dollars in frozen federal research funding Nov. 28. In the deal, the University agreed to a $75 million fine and various terms ranging from sharing admissions data to terminating the University’s Deering Meadow Agreement.
Gowder and Kitrosser claim some of the agreement’s terms violate the First Amendment.
Kitrosser explained that policies put in place by private institutions, like NU, would not typically be subject to the First Amendment. However she said the policies articulated in the agreement stem from government “coercion” using frozen funds as leverage, and courts have found the First Amendment applicable when the government is determined to have indirectly created the restriction.
The agreement stipulates that the University cannot alter certain, current policies related to demonstrations and displays without consent from the assistant attorney general. The policies include bans on on-campus displays in unapproved areas, overnight demonstrations and the use of amplified sound or tents, among others.
“These features of the agreement thus convert a sympathetic idea — a university choosing to adopt and enforce anti-harassment standards within its community — into a government mandate that uses vaguely worded standards to punish protected speech and to produce a pervasive, viewpoint-based chilling effect on the entire Northwestern community — students, staff, and faculty alike,” Gowder and Kitrosser wrote in a joint Dec. 8 statement.
The professors also claim that the agreement’s policies related to admissions go beyond those required by Students for Fair Admissions v. Harvard, a 2023 Supreme Court decision limiting consideration of race in college admissions.
The Students for Fair Admissions v. Harvard decision explicitly states that universities can consider references to race in students’ personal statements, so long as they are considered on the basis of an individual’s experiences, rather than the basis of race.
NU’s agreement with the Trump administration explicitly forbids the University from using “personal statements, diversity narratives, or any applicant reference to racial identity as a means to introduce or justify discrimination.”
“That’s a way in which the agreement, basically the federal government, is going well beyond the bounds of the law and telling Northwestern what kind of considerations they can take into account in admissions,” Kitrosser said.
Gowder also called the requirement that the University share admissions data with the federal government to determine whether NU is engaging in affirmative action “completely unacceptable, both as a matter of actual anti-discrimination law and as a matter of not being blatantly racist.”
Neither the University nor the Trump administration responded to questions surrounding the deal’s legality before the time of publication.
After the deal was announced, the ACLU of Illinois issued a statement condemning it. It suggested that capitulating to federal demands opens the University “up to further demands from the Trump Administration.”
“The next time a scholar writes about the failure of some Trump policy, or a researcher seeks to help a population disfavored by Donald Trump, the Administration will be back with more (demands) and more threats,” the statement read.
Gowder echoed these concerns, adding that NU’s agreement to “illegal demands” makes it easier for the federal government to make those same demands of other institutions. He and Kitrosser also wrote that other universities have found early success in lawsuits against the federal government, rather than pursuing a deal.
However, in an October interview with The Daily, interim President Henry Bienen signaled his openness to a deal while saying he was reluctant to fight the federal government through the legal system.
“Fighting the federal government is an incredibly difficult thing to do,” Bienen said at the time. “In law, any other way — it’s very expensive.”
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