Why I’m Excited About the White House’s Proposal for a Higher Ed Compact

This piece was originally published by The Renovator.

Last Wednesday the Wall Street Journal reported that the U.S. Department of Education sent a letter to nine leading universities proposing a new “Compact for Academic Excellence in Higher Education” between America and its universities. On Thursday, the letter leaked through the Washington Examiner. On Friday higher ed erupted.

The criticism was scathing — the compact is extortion, federal overreach, and proposes violations of the First Amendment, both rights of association and rights of expression.

I think my colleagues have rushed to judgment and are missing an extraordinary opportunity to do the right thing — in fact, two right things. The compact introduces a chance to establish a much-needed fresh relationship between America and higher education. It also offers an opportunity to pivot away from executive branch overreach and restore legislative supremacy.

No, I don’t think the compact as proposed should be signed. But it’s still an excellent idea to have a coalition of strong universities work together to negotiate a package of reforms for higher education. While any new compact should ultimately be a matter of federal legislation, given the current Congress, the first step will have to be a “deal” — a framework of principle negotiated with the White House by strong, mission-driven higher education leaders working in coalition. Emphasis on that last word: coalition.

My hope is that some of the university presidents who received the letter, for instance Daniel Diermeier at Vanderbilt and Sally Kornbluth at MIT, will see this letter for the opportunity that it is: an opening to forge a national coalition of higher education institutions to secure a good, mission-aligned agreement with the federal government.

This will be longer than my usual columns. There is a lot to explain.

Here’s what I want to address: First, why should we want a compact and a deal? Second, what sort of process might reasonably be pursued for securing a compact, and what would it take for something to count as a compact? Third, what is good and what is bad about this proposal from the Department of Education and how can the leaders of the recipient organizations help lead the whole sector, and the government, to better answers?

Why a Compact and in What Form?

We had been operating for a long time under the post-World War II social contract framed by MIT scientist Vannevar Bush in a 1945 report for President Truman called Science, the Endless Frontier. That report provided the blueprint for a policy regime that was then built over decades via congressional legislation: the National Science Foundation Act (1950); the Public Health Service Act amendments (1940s and 1950s), which expanded the National Institutes of Health; the creation of the Defense Advanced Research Projects Agency (1958), which rested for its authorities on the Department of Defense Reorganization Act of 1958; Titles VI, VII, and IX of the Civil Rights Act of 1964, which made federal funding contingent on non-discrimination; the Higher Education Act of 1965, which established the financial aid structure we know and love; the Bayh–Dole Act of 1980, which authorized universities to commercialize inventions emanating from federally funded research.

Remember when Congress used to legislate big things?

The Vannevar Bush contract is now failing us because it focused only on national security, economic competitiveness, and health. We need all those things, and strong universities can help us have them. But we also need civic strength — healthy relationships among citizens that give us the wherewithal to govern ourselves democratically, including the ability to negotiate our disagreements. Civic strength is the opposite of polarization. Our universities have failed to contribute as they might to this project by allowing civic education to erode, by abandoning a commitment to pluralism that includes viewpoint diversity, and by failing to achieve approaches to admission and credentialing that are broadly experienced as fair.

The new compact proposed by the Education Department primarily targets this issue of how colleges and universities impact relationships among Americans, and with foreign residents. It seeks to reset race and gender relations, to establish new frameworks for anti-discrimination efforts, to rebalance the commitments of higher education to American and international students, and to restore debate across the full spectrum of views within universities.

In pursuing changes in these areas, the compact seeks to modify much of the post-Vannevar Bush legislative architecture for higher ed, but it seeks to do it through executive branch action. The Higher Education Act (HEA) did not regulate admissions; the compact aims to. The HEA preamble affirms the importance of advancing knowledge but the law did not provide substantive guidance on how that might be done. The compact’s prong about a Marketplace of Ideas and Civil Discourse moves well beyond the HEA’s statutory scope in its effort to prescribe methods for achieving viewpoint diversity on campus. The Higher Education Act did not address student grades; the compact would regulate grade inflation. The Higher Education Act did not address faculty hiring; the compact draws on Title VII and Title IX of the Civil Rights Act to weave in regulation of faculty hiring. In drawing on Title IX, which prohibits sex discrimination, the compact seeks to redefine that law by codifying specific definitions of “man” and “woman.” On financial responsibility, the compact expands beyond the HEA to propose price controls.

In other words, the compact amounts to a draft framework for a reauthorization of the Higher Education Act to include radically new elements. The Department of Education is acting like a legislature. This, without any doubt, is executive overreach.

But the department, it must also be said, is stepping into a vacuum left by a polarized and therefore ineffective Congress.

After the original passage of the Higher Education Act in 1965, the law was amended in 1968, 1972, 1980, 1992, 1998, and 2008, but not since — the longest gap in its history. Our higher education sector has reached a crisis point partly because our highly polarized Congress has not been doing its job. We are victims of our own failure to cultivate the kind of civic strength necessary to keep a legislature healthy and effective.

The best path out of the current crisis for higher ed would be a new social contract between America and its universities that was achieved via amendments to and reauthorization of the Higher Education Act and, if necessary, other pertinent statutes.

But we can’t get there from here without a deal made first between leading institutions of higher education and the White House. A deal on the core principles in a compact could then become a framework for negotiating on legislation.

What Sort of Process?

Through the Education Department’s compact, the White House has made a first proffer of a framework to help higher education address the problems of the moment. Those nine universities should coordinate to make a second proffer. In the 1940s, Truman commissioned Bush to draft that science-based blueprint for the relationship between the government and universities. Now, in answer to this proposal from the federal government about domestic relationships within our population, universities should charge themselves with doing that work of developing the blueprint.

The Diermeier-Martin principles on how universities can avoid politicization make a good starting point. Some state-level approaches to investing in civic education in higher ed also provide elements that could be incorporated into a federal framework. New clarity is emerging about how social sciences research can improve return on investment for public-sector dollars, if the public sector can also appropriately support such research. We are beginning to find our way to accommodations and compromises on the question of transgender rights and privacy and fairness for biological females. Pieces and parts of what should go into a new social compact for America and its universities are coming into existence. But they need to be assembled into a comprehensive vision. The nine leaders who received this letter must lead that process.

In addition to accelerating creation of a blueprint for resetting the relationship between higher education and the American people, the nine leaders need to pull their peers into the conversation in order to build the broadest possible consensus for their counterproposal. The fact that the government sent the same letter to nine institutions is what makes this kind of collaboration finally possible. The bilateral negotiations that have until now been underway between the government and individual universities have intensified the competitive dynamics among institutions, making it harder to break out of our collective action paralysis. At last, we have a structure for collaboration and an invitation to talk to each other that will not bring charges of collusion.

May Mailman, senior advisor on special projects in the White House, told the Wall Street Journal that one purpose of sending the letter to multiple schools was to help solve their collective action problem. The goal, she said, was to make it possible for schools to act “in things that are not hard decisions, but they are hard to go at it alone.”

Mailman’s intuition is right. Competitive dynamics among colleges have made it hard to solve some of the problems in the sector, for instance around rising tuition. This push to the sector to work collaboratively is a terrific opportunity to break out of a collective action trap.

It would be very valuable for these nine schools to lead a formal process with colleagues to draft the blueprint for the next era of higher education. If a vision for the future of higher education collaboratively produced by higher education leaders were to emerge from this, that would be a good thing.

A Pivot to Congress

The second segment of work will be a pivot to Congress. While colleges and universities might hammer out a new overarching framework for the compact between America and its universities, this should not, and cannot, be a conversation solely with the executive branch. In the short term, there is a need for a deal, yes, but only as a waystation to the real work of engaging Congress, as representatives of the American people.

Once a higher ed coalition has reached an agreement with the White House, it could then drive a pivot away from executive overreach by activating Congress to do its job. The coalition might say to the Department of Education: “Thanks so much for taking the initiative on tackling the problems confronting American higher ed. Now, let’s get this compact in front of the House Committee on Education and the Workforce, the House Appropriations Committee, the Senate Committee on Health, Education, Labor, and Pensions, and the Senate Appropriations Committee. Let’s get the process started on debating and negotiating amendments and reauthorization for the Higher Education Act.”

This would place final decision-making authority back where it belongs: in public, with open debate among the people’s representatives. The executive branch can reasonably propose frameworks for legislation to Congress; doing that is not executive overreach. Only expecting to deliver and enforce a deal without going through Congress is. The coalition of nine universities could now help start to rebuild the authority of the first branch of our constitutional order precisely by driving a pivot toward the legislature.

The best compacts in our nation’s history have always been the product of public deliberation. The Declaration of Independence was drafted to present facts to a candid world, after the members of the Continental Congress circulated ads in newspapers across the colonies asking for people’s input on the wrongs of the British government. The Constitution was circulated for public discussion, deliberation, and ratification in all colonies, and that process generated a need for amendments, the Bill of Rights.

So it was strange that the Department of Education sent something called a compact privately to nine universities without releasing it for public discussion. It is good that the document was leaked to the Washington Examiner. Law should be made in public, and it should be made by the legislature. The nine schools that received that letter could now do us all a service by kickstarting the legislative process. They can do this by directly engaging the federal delegations in their states and, if they build a bigger coalition, by engaging every federal delegation representing the schools in their coalition.

We do need a new social compact between America and its universities — one that seeks to secure the foundations not only for national security, economic competitiveness, and health but also for civic strength. But a compact, in order for it to be a compact, must be a public document, and it must emerge from public discussion and debate. We are only at the very beginning of what will necessarily be a long negotiation. The first step may be a deal with the White House on a framework of principle. But the actual compact should be hammered out by the people’s representatives.

Since the Higher Education Act has gone unamended for 18 years, it should be uncontroversial to say that it needs improvement. We should shoulder the burden of rethinking financial aid structures, how schools communicate about the net cost of attendance, how accreditation works, and the structure of degrees and assessment. The time really has come for doing this work. Across the country, these nine schools should join with others to craft the kind of legislation that would give us a framework for the relationship between America and its universities of which we can be proud.

Paradoxically, then, this act of executive overreach creates the conditions for redirecting executive overreach into effective legislative behavior.

The Good, the Bad, and the Unacceptable

If the invited university leaders step up, what could come out of all of this is a new social contract between America and its universities that includes the ambition to support not only national security, economic competitiveness, and health but also civic strength.

The basic aspirations motivating the proposed compact are the good part of the proposal from the Department of Education. As I said above, the compact’s 10 prongs focus on how colleges and universities impact the relationships among U.S. citizens and residents. The aspirations come through in the title of each of the 8 substantive prongs:

• Equality in Admissions
• Marketplace of Ideas & Civil Discourse
• Nondiscrimination in Faculty and Administrative Hiring
• Institutional Neutrality
• Student Learning
• Student Equality
• Financial Responsibility
• Foreign Entanglements

These categories of effort really do communicate aspirations aimed at ensuring our colleges and universities contribute to civic strength.

The very first executive order that President Joe Biden signed in 2021 was called, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” It directed federal agencies to assess whether their programs and policies create barriers for underserved communities and to develop equity action plans if they did. The Trump administration seeks to unwind the extensive spread of “equity” organizational structures throughout society during the four years of the Biden administration. It seeks to replace equity with equality and shift the focus from comparing achievement among groups to asking all students and faculty to measure themselves against some shared, external standard of excellence. The administration couples this with a strenuous recommitment to non-discrimination, made more robust through an added focus on avoiding any discrimination based on religious viewpoint or political affiliation. The purpose of these goals is to give everyone a fair shot, to require articulation of external standards of excellence that do not rely on comparisons between groups, and to foster healthy debate on campus. These are laudable goals. This is what is good in the compact.

The bad in the compact is often in the methods proposed for achieving those goals: The idea that viewpoint diversity is best achieved through administrative bean-counting and, implicitly, viewpoint-based quotas. A range of threats to the First Amendment, including the erasure of a line between criticism of conservative views and incitement to violence. The unwillingness to rely on the illegality of incitement as sufficient protection against it. The micromanaging of admissions and tuition-setting that reflects an imperfect understanding of those processes, of the economic realities of colleges and universities as businesses, and of First Amendment standards protecting freedom of association.

Work that must be done intellectually — for instance, achieving a culture of debate on campus — is here treated as work that can be accomplished by fiat. This is a failure to understand how intellectual cultures evolve. Complicated administrative work — the interaction between costs, tuition, and financial aid — is ignored, making the financial proposals essentially nonsense math.

The unacceptable is the effort to legislate the use of words, specifically “man” and “woman.” Biology is complicated. Technology has made it more so, since people can now radically alter their bodies. We certainly need to protect and respect the basic experience of the vast majority of people who are born male and female and remain such for the entirety of their lives, and radical medical interventions do seem like a mistake for people under 18. But transgender people exist, as do intersex individuals as naturally occurring variation in human biology. Other species display such variation. The question of how to represent that variation linguistically is not properly a matter of government decision, and transgender individuals deserve protection of their basic human rights. There will surely be accommodations and compromises to be found here — and ways to protect sports and privacy for biological females. But those compromises won’t start from Orwellian efforts to legislate how we speak.

There are good answers to be had on all the prongs the government has laid out. If we were to take each one as a question, and propose better answers, I think that with a lot of hard work we might get to a new framework for the relationship between America and its universities — one worthy of the realities of the 21^st century. From such a framework, we might then be able to engage Congress and build toward reauthorization of the Higher Education Act.

But the only path to that result is through collaboration across the sector on a deal over this compact led by leaders like Diermeier and Kornbluth who had the good fortune to receive the invitation to sign. Their opportunity for generational leadership has arrived. If they can get it right, then an opportunity for Congressional leadership will lie not far behind.

Danielle Allen is a James Bryant Conant University Professor at Harvard University. She is a professor of political philosophy, ethics, and public policy and director of the Democratic Knowledge Project and of the Allen Lab for Democracy Renovation. She is also a seasoned nonprofit leader, democracy advocate, national voice on AI and tech ethics, distinguished author, and mom.

The views expressed in this article are those of the author alone and do not necessarily represent the positions of the Ash Center or its affiliates.