NU faculty recently voted overwhelmingly against “any capitulation on the part of Northwestern University” to the Trump Administration’s “Compact for Academic Excellence in Higher Education,” by a 595 – 4 margin with eight abstentions. A related resolution from the spring, sponsored by the local AAUP chapter, called on NU to sue the Trump administration. That passed 338 to 83.
NU is in a similar position as Cornell, insofar as we have not received any official demands or allegations of Title VI violations. Cornell President Kotlikoff has explained that this has made it harder for Cornell to sue.
NU law professor Heidi Kitrosser has written a nice rebuttal of this argument in the Daily Northwestern. Everything they say is equally relevant on our campus.
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.
Cornell Chapter of the AAUP 