Last week, the Department of Health and Human Services, the Department of Education, and the U.S. General Services Administration announced the immediate cancellation of $400 million in federal contracts with Columbia University.
The announcement corresponded with ongoing Title VI investigations alleging an anti-Semitic hostile environment at Columbia. Last night, the agencies sent a follow-up letter sidestepping important procedures and including demands that will seriously erode free speech and academic freedom on campus.
There is significant evidence to suggest that Columbia failed to respond effectively to unlawful conduct directed against Jewish students based on their Jewish identity and that this has resulted in Title VI violations. Indeed, Columbia responded to the agencies’ March 7 announcement about canceling contracts by stating it is “committed to working with the federal government to address their legitimate concerns.” [Emphasis added].
However, the departments’ demands in last night’s letter to Columbia go too far. The letter announces steps the school must take “that we regard as a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States Government.” While these include some policy steps that Columbia should already have taken, the letter goes far beyond what is appropriate for the government to mandate and will chill campus discourse.
Our nation’s colleges need to protect free expression and comply with anti-discrimination laws, but too often … they enact overbroad or vague policies that do not track the Supreme Court’s definition for discriminatory peer harassment.
For instance, the letter demands that Columbia “Formalize, adopt and promulgate a definition of anti-Semitism.” It cites President Trump’s 2019 executive order on anti-Semitism — which orders the government to consider the International Holocaust Remembrance Alliance’s definition and examples of anti-Semitism for civil rights enforcement — hinting strongly that Columbia should adopt that definition.
While the IHRA definition was originally crafted to study incidents of anti-Semitism in Europe, its primary author has repeatedly stated that it was never intended to be used for anti-discrimination enforcement because it risks chilling speech on the Israeli-Palestinian conflict on campus. The examples of anti-Semitism cited by IHRA include criticisms of Israeli policy that can, depending on the situation, be political speech protected by our First Amendment.
Other demands may be of even greater concern. The government’s demand that an academic department be put under “academic receivership” is a clear intrusion on academic freedom, and its deadline of March 20 for a “full plan” to do so is likely impossible to meet. And there is no basis to believe that the federal government has the power to demand that Columbia eliminate its University Judicial Board or to mandate specific punishments (“expulsion or multi-year suspension”) be given to student demonstrators.
The demands in the letter pose a problem, but so is the process the government is using to issue those demands. This is not the normal procedure for revocation of federal financial assistance for violations of Title VI. Instead, the government appears to rely on authority under Federal Acquisition Regulations (FAR) to cancel contracts based on “termination for convenience of the government” clauses that exist in most federal contracts. As a Biden-era document states: “the Government has a lot of latitude to terminate contracts for convenience and the Federal Acquisition Regulations do not require a lot from the Government when terminating contracts for convenience.”
Federal anti-discrimination law has been one of the most frequently cited justifications for campus censorship throughout FIRE’s history. Our nation’s colleges need to protect free expression and comply with anti-discrimination laws, but too often — and sometimes at the federal government’s behest — they enact overbroad or vague policies that do not track the Supreme Court’s definition for discriminatory peer harassment. As a result, their policies and actions end up targeting speech protected by the First Amendment. This has long been a problem in the Title IX context relating to sex discrimination, and has more recently become a problem in the Title VI context as well.
One important protection that colleges have against improper pressure from the federal government to censor students and faculty is the process federal civil rights law provides for colleges accused of failing to address unlawful discrimination. Civil rights investigations should not be handled through ad hoc directives from the government. Existing procedures, which include an attempt at a voluntary resolution followed by either an administrative hearing with the opportunity for the institution to defend itself or a trial in federal court, are intended to reduce the risk of error, individual biases, and overreach.
None of those safeguards are in evidence in the Columbia process, which increases the likelihood of abuse. Title VI processes are in place for a reason, and those procedures, when followed in good faith, are more likely to generate just outcomes for colleges, students, and faculty.
Earlier this week, the Department of Education announced it was launching Title VI anti-Semitism investigations into 60 colleges and universities across the country. Any of those institutions that have contracts with the federal government would reasonably expect to be treated similarly to Columbia and risk losing federal government contracts unless they enact policies similar to those outlined in last night’s letter.
The threat to both free speech and academic freedom are clear, and last night’s letter is a blueprint to supercharge campus censorship.
