Tag: unconstitutional

FIRE today filed a “friend of the court” brief in support of the American Association of University Professors and the American Federation of Teachers in their lawsuit against the Department of Justice and other federal agencies. FIRE argues that the Trump administration’s actions against Columbia University are unlawful and unconstitutional attacks on freedom of expression, freedom of association, and academic freedom. The brief’s summary of argument follows.

The federal government characterizes its abrupt revocation of $400 million in federal grants to Columbia University — and the government’s threat to revoke billions more if its demands are not met — as necessary to address anti-Semitism on campus in the wake of pro-Palestinian protests that sometimes veered into unlawful activity. Addressing discrimination is a worthy end. But it cannot justify the government’s flatly unconstitutional means here. While Columbia’s response to campus misconduct may raise questions about the university’s obligations under federal anti-discrimination law, there is no question about the government’s failure to meet its obligations under the First Amendment. The administration’s coercion is a blatant end-run around statutory safeguards and a flagrant attempt to jawbone the university into surrendering its institutional autonomy to federal officials. For the sake of Columbia’s students, faculty, and our free society, this government intimidation cannot stand unanswered.

The same federal statute that governs institutional responses to allegations of anti-Semitism — Title VI — requires funding recipients like Columbia to receive notice, a hearing, and an opportunity to come into compliance voluntarily before the government can terminate funding. These provisions protect students, faculty, and institutions from precisely the kind of repressive, capricious government overreach that now harms Plaintiffs. Yet despite its professed interest in addressing campus anti-Semitism, the administration chose to ignore entirely the lawful statutory means by which it may do so. Instead, it has instituted rule by fiat: arbitrarily declaring Columbia subject to punishment, cancelling hundreds of millions of dollars in grants and threatening worse to come, and leaving Columbia faculty and students at the mercy of unchecked federal authority under the specter of a hostile takeover.

This is unlawful. Just last year, the Supreme Court reaffirmed that the government cannot jawbone private actors into punishing speech that the First Amendment protects from state intrusion. Nat’l Rifle Ass’n of Am. v. Vullo, 2024). But jawboning is exactly what the administration is doing to Columbia — except here, the government’s bullying is so extreme it might more accurately be called extortion. Wielding the threat of crippling financial consequences like a mobster gripping a baseball bat, the government forced Columbia to adopt a restrictive speech code that punishes disfavored or dissenting viewpoints. Not only would it be unconstitutional at a public university, the speech code also violates Columbia’s free speech promises and its right as a private entity to set its own rules regarding speech. The government further forced Columbia to surrender control of an entire academic department and to relinquish its right to make independent decisions about discipline and admissions — all of which violate longstanding precepts of academic freedom, institutional independence, and university self-governance.

These demands are unconstitutional. Again, just last year, the Supreme Court reemphasized the limits the Constitution places on the government in its interactions with private institutions. “On the spectrum of dangers to free expression,” the Court wrote, “there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” (Moody v. NetChoice, LLC, 2024). As Defendants trample constitutional barriers in seeking to effectively outlaw certain political views on campus, this grave danger that the Court identified is fully realized.

The government’s gambit is not permissible simply because federal funding is involved. The Supreme Court long ago established that “even in the provision of subsidies, the Government may not ‘ai[m] at the suppression of dangerous ideas’” — and that the First Amendment demands judicial intervention if funding is “‘manipulated’ to have a ‘coercive effect.’” (Nat’l Endowment for the Arts v. Finley, 1998) (quoting Regan v. Tax’n With Representation of Wash., 1983). Few things could be more manipulative or coercive than revoking grants in an explicit attempt to override the expressive and associational rights of a private institution of higher education, its students, and its faculty.

This case illustrates the grave threat to core First Amendment freedoms posed by expansive — and here, extralegal and unbounded — conceptions of governmental power to address discrimination. For more than a quarter century, amicus FIRE has advocated against overly broad and impossibly vague campus speech codes promulgated under federal anti-discrimination law. To that end, FIRE successfully led the charge against the Obama administration’s attempt to pressure institutions to adopt a federal definition of “sexual harassment” — advanced as a national “blueprint” — that subjected wide swaths of protected speech to investigation and punishment. And yet as misguided as that initiative was, those pressure tactics pale in comparison to the scope and intensity of the unlawful shakedown Defendants mount here.

The government’s aggression against Columbia is alarming not just because it is unlawful and unconstitutional, but because its plain aim is “suppression of free speech and creative inquiry in one of the vital centers for the Nation’s intellectual life, its college and university campuses.” Rosenberger v. Rector & Visitors of the Univ. of Va., 1995). While Columbia was the first institution targeted by the administration, it has not been the last — the list of colleges facing coercive funding cuts and chilling demands is growing.

Addressing anti-Semitism does not and cannot require violating the First Amendment. Left unchecked, the administration will continue to deploy its distorted conception of federal anti-discrimination law as a battering ram against institutional autonomy and to seize for itself power to control permissible speech and instruction on our campuses. The stakes are high: “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 1957). This Court must act now to protect freedom of expression, academic freedom, and our institutions of higher education from a hostile federal takeover.