The Art of the Higher Education Deal?

Archon Fung: Hey folks, you’re listening to Terms of Engagement. I’m Archon Fung, professor at the Harvard Kennedy School and director of the Ash Center for Democratic Governance and Innovation here.

Stephen Richer: And I’m Stephen Richer. I’m the former elected Maricopa County recorder, and I am now a senior practice fellow at the Ash Center at Harvard Kennedy School. And today I’m coming to this program from Washington, D.C., and I’m nursing a bit of a hoarse throat, so apologies for that.

Archon Fung: And what are you doing in Washington, D.C., Stephen?

Stephen Richer: Talking about elections talking about democracy and so lots to be talking about and certainly uh washington dc is a very interesting place these days but i guess a lot of people aren’t working because of course we’re now in what day four or something of the government shutdown and uh doesn’t look like there’s an end that is imminent and so that will continue but today we’re going to be talking about something that is of course very salient to the academic community salient to Harvard University Though, of course, as always, Archon and I and our guests are always speaking just in our independent capacities. But this pertains to a proposal that the Trump administration last week sent to ten universities. I’m going to get the title here. That’s called the Compact for Academic Excellence in Higher Education. And so it’s a ten-point plan that seeks to create a new relationship with specific universities that if they sign on, will provide, quote, multiple positive benefits, end quote, end quote, substantial and meaningful federal grants, end quote. And it was sent to University of Arizona, Brown, Dartmouth, MIT, Penn, USC, Texas, Vanderbilt, and Virginia. And of course, Archon and I have talked about Harvard’s relationship vis-à-vis the administration and some of the negotiations and lawsuits that have gone on there. But we now have a new frontier in the conversation between academia and the administration. Great.

Archon Fung: And as always, you know, we try to bring current events into a conversation about how they’re affecting American democracy. And so I think what part of what’s on the table here, what the stakes are, is this compact good or bad for American democracy? And you could think, well, it’s bad for American democracy because universities need to be independent and far from the government to make their contribution to our democracy. But you could think the compact would be very good for democracy if you think that universities have drifted far from the American mission of serving America, of serving science and including many diverse viewpoints. And maybe I’m sure fans of the compact thinks that this is creating a little bit of a correction there. To help us understand the news, we have a great guest today, Joey Fishkin. Joey is a professor of law at UCLA, where he teaches and writes about employment discrimination, election law, constitutional law, education law, among other topics. Before joining UCLA, he taught for a decade at the University of Texas School of Law, where he was the Mars McClellan professor. Joey received his BA in Ethics, Politics, and Economics, SUMA at Yale, and his JD at Yale as well, and a DPhil from Oxford University. And then he clerked for Chief Justice Margaret Marshall of the Supreme Judicial Court of Massachusetts. Welcome, Joey.

Joey Fishkin: Thanks. Great to be here. Great.

Stephen Richer: Great. Quite the resume. A few degrees there. Yeah, maybe. Definitely. A few great degrees from great schools.

Joey Fishkin: A lot of time in higher ed world. Yeah.

Archon Fung: And so far outside of Texas, schools that have managed to avoid the sights of the Trump administration. So why don’t we get started? You wrote a great blog post on Balkanization. For those of you who don’t know, it’s a big website that a lot of legal academics write for, maintained by Jack Balkan, or used to. He probably has a whole staff maintaining it now. But in that blog post, part of what you’re aiming to do is set the record straight on what the compact actually is and what it does. And so I’m going to quote from the blog post and then you can elaborate. And so here you write, first, for “the benefit of any journalists who read this, both the blog post and the compact, I, Joey, think it’s important to lay out a few simple bullet points on what the compact does and why the spin adopted by so many mainstream reporters is incorrect. In reality, the compact is a maximalist document demanding a near complete surrender of core academic freedoms of the university. It purports to give a vast new leverage to the DOJ if the DOJ sours on the university for almost any reason to take away federal benefits to which the university and its faculty and students are entitled under federal law.” So here, you’re not even so much getting into the substance of the compact, but rather kind of the legal form and process of the compact, which is great to have a legal analyst. So maybe open, like, why do you think that it’s particularly problematic? A lot of people would think it’s better because it’s carrots, not sticks. With Harvard and Columbia, it was sticks. We’re going to take away all of your research grants. Here, we’re offering some benefits. better.

Joey Fishkin: Yeah. So there was a cover letter that refers to benefits that refers to, there’ll be meaningful grants. You’ll be first in line. That all sounds like carrots. But when you look at the actual compact, especially if you’re, you know, a lawyer, you read, you know, the first, all you need is like the first and the last paragraph, really. which says, here are some benefits that universities get from cooperation with the federal government. And it lists some really major ones, not just grants, but students can get student loans. Foreign students can get visas. You get favorable tax status. That’s your five one C three status and others. And they sort of list off these benefits and they say, you know, universities are free to pursue other models that aren’t what we’re laying out in this compact if they will forego these federal benefits and then the last paragraph the most important paragraph of the compact says the department of justice will review whether you’re complying with this contract this compact and any finding and what a finding means is not a court but the department of justice finding with some piece of the compact. And we can talk about the moving parts inside. But if the Justice Department finds that a school is out of line, then a school that has signed this thing agrees in writing that they will forfeit all the benefits of this compact for one year or two years, that they’ll return all the federal money, all the research grants, which by then had probably been spent in labs and in research at this university. would have to return all that money and lose potentially it’s five, a one C three status and all the other listed benefits for a year or more, which is a really, uh, I mean, I, in the book, in the blog was to describe it as like a sort of Damocles over universe. Cause what is it? It’s like, you know, The Department of Justice wants more leverage over universities than it has now. And if a university signs this compact, they will be saying, whether it will hold up in court, I don’t know, but they will be saying, we’re giving you all this more leverage than how law looks now.

Stephen Richer: So, Joey… You put quotation marks around benefits and I want to ask on that, but I also want to remind people that if you put questions into the comment box, I’ll take a look at them, see if we can work them into the conversation, but you put quotations around benefits. And so this reminds me a little bit of when my mom growing up, she would say, you can play on the computer. If you do your chores and it was like, wait, I thought I could already play on the computer. It seems like you’re taking away a benefit just to give it to me again or making it contingent upon something. Are these new benefits or is this simply allowing you to play by the status quo if you sign this new compact?

Joey Fishkin: Right. The cover letter refers to sort of meaningful new grants or something. But the actual compact, everything in there is an existing benefit like you’re talking about with. you thought you already could play on the computer. And not only that, but it’s an existing benefit that federal law already says universities are entitled to and that it’s not easy for the government to take away.

Stephen Richer: So I guess if it’s an existing benefit, why would any of these ten universities sign this if it’s just subjecting you to new qualifications for the same existing possible benefits?

Joey Fishkin: You’re right. I think the reason to, look, I actually don’t think any university is going to sign this thing in this form. I think they will try to get it changed and maybe try to negotiate it. That’s my prediction. But I think the reason that they might feel inclined to sign, as I know some of the regions of Texas were initially inclined or supportive, You know, the reason is because you want to be on the good side of this administration rather than on the bad side, precisely because, as we know from watching what’s going on at Harvard, you know, even if you don’t sign one of these compacts, the university is vulnerable to various kinds of federal attack. that are the weaponization of existing federal programs that the government could try to take away. And so I think the reason that you’re seeing a lot of silence out of these nine schools is that their lawyers are probably looking at the fine print and seeing that this is a little bit dangerous to sign onto. And also, they don’t want to say no, because that could put them in the crosshairs as well. So you’re getting a lot of quiet.

Archon Fung: Uh, interesting. I was trying to think about analogies, uh, that I could understand more easily. Uh, I don’t, I’m not in a position to sign a compact for a university. Thank goodness. But I guess I was thinking about it, maybe like right. the first amendment ordinarily, you know, kind of gives me the right to say whatever I want. The point of an NDA is I’m not going to talk about what I learned and, you know, whatever, some company meeting. So I no longer have that right. And I sign it away, even though the constitution is still there. And, you know, there’s the first amendment is still there. I voluntarily give away this seed, this right that I have. Is that the right way to think about the compact is you ordinarily have rights to some kind of process under the Administrative Procedures Act or Title VI or Title IX or whatever it is, or federal grant provisions. And then by signing the compact, you’re putting yourself in another kind of I don’t know, another kind of deal where those procedures don’t exist anymore. But like you said, it’s like some to be determined DOJ set of procedures about whether or not universities have violated.

Joey Fishkin: Right. I mean, I think that’s what it looks like. And, you know, I’m not saying a university couldn’t argue to some court in the future, oh, yeah, even though we signed, you still need more process than this to enforce it against it. I don’t know. But the document itself doesn’t give any process. And it certainly does not say that schools will be entitled to all the process that they’re entitled to now. And I think also this agreement contrasts a little bit with, you know, the first settlement that the government reached, the one with Columbia. What includes an independent monitor and provisions for arbitration. If the government thinks Columbia is not holding up its end of what the government was asking of Columbia, it’s an independent arbitrator who’s going to sort of figure out and fight that out. If this compact went into effect just how it reads on paper, there is no independent arbitrator. It would just be the Justice Department unilaterally deciding.

Stephen Richer: Joey, one of our listeners said, please explain how this is different from extortion. And I think having read your piece, you would say this isn’t and this is extortion. But can you help us understand what someone maybe more supportive of the compact might say in its defense or how this is an extortionary? Or do you think that there is no colorable argument?

 : I think it’s easy for something to fit the compact because there’s plenty of stuff in there. They carefully have jammed together a bunch. And I hope we’ll talk about the substance of what they’re asking universities to do because much of the substance is also pretty wild and invasions of academic freedom. But there’s also stuff in the compact that’s perfectly reasonable and that actually many schools already do. For example, I notice publish the grade distributions. I mean, we do that over here at UCLA at my law school. You know, I’m not sure how effective it is at tamping down grade inflation, but that’s the goal. Reasonable thing to do. I don’t think the federal government needs to tell universities to do it, but I think everybody who I hear defend this compact looks to the substantive provisions and says, hey, some of these substantive provisions seem pretty good. Like maybe a tuition freeze for five years seems good. Affordability is a big problem. You know, I think that’s a totally reasonable policy for a university to undertake. I don’t think it’s great for the federal government to say freeze tuition. And by the way, we’re also cutting Pell grants and loans, you know, that’s a separate problem. But I think, you know, like this compact actually would not make college more affordable because of those other action. But anyway, I think a defender of the compact would point to the reasonable sounding stuff in it and would not focus on the enforcement side. And maybe would say, well, you know, the federal government’s going to exercise good faith and not enforce it in a in a bad faith way, which I think your mileage may vary as to how plausible that sounds.

Archon Fung: Yeah. So Sean in the chat writes about the importance of stopping antisemitism, which was certainly the announced goal for the administration’s interactions with Columbia and Harvard University. In my read of the compact, there’s not so much about antisemitism. So could you talk about both that particular kind of problem, anti-Semitism, and then what are the other goals on your read of the compact? Like what is the administration trying to get out of this? What’s it trying to do?

Joey Fishkin: Yeah. So obviously, there’s a lot of debate about exactly how to think about what is anti-Semitism. I certainly think anti-Semitism is a problem. I’m Jewish. There’s a lot of people on campus who would say anti-Semitism is bad anywhere. I certainly agree. But there’s a lot of pro-Palestine speech that controversially some people view as anti-Semitic. That’s the hotly debated part. And I do think there are some things in this compact. You’re right that this compact goes way beyond the topic of anti-Semitism. and doesn’t really mention it. But I do think there are some things in this document that aim to make it easier for the federal government to force universities to punish students who speak about Palestine in particular. And a couple of provisions like that are there’s one that says that the university needs to punish any support for organizations that the US government designates a terrorist organization. which actually seems totally reasonable that we shouldn’t have people supporting terrorist organizations. But as a judge, a federal district judge recently held in a case about student visas, this government has a real pattern of labeling any pro-Palestine speech as, quote, support for Hamas. And if you do that, then it’s all support for an organization that’s a terrorist organization and therefore punishable and you don’t have to prove anymore that it’s anti-Semitic. And I think that’s the piece that’s the most relevant to this sort of longer arc of trying to get universities to crack down more on pro-Palestinian speech.

Stephen Richer: But we have gone pretty far afield from what was our original departing point of involvement in american universities which was uh alleged rampant anti-semitism hostility towards jewish students occupation of buildings and I will say I’m a little less um I guess, maybe cheerful about the sentiments of some of those protesters. I tend to think that a lot of it is rooted in anti-Semitism. But setting that aside, this compact’s talking about requiring the SAT and the ACT, and the nexus to anti-Semitism.

Joey Fishkin: We’re going very far. I agree. We’re going very far. So I’ll just say on the… Yes, on the anti-semitism point, part of what’s going on here, I think, is that some of the initial schools like California, excuse me, like Columbia that the administration targeted had a lot of unusual demonstrations on the campus that there was this debate about whether to class them as anti-semitic even though a lot of jews participated in them there was a sense you know that you could argue those are anti-semitic the federal government has big aims for higher ed that are not limited to the schools that had a lot of those incidents and so they’re not going to be able to use title vi and this antisemitism argument against all the universities in the united states because most of them didn’t have big incidents like the ones at Columbia. And so what you’re seeing is a set of other goals. I think a big one is to defund universities, to make universities just lose their budgetary foundations, and also particularly to make them skew more toward the uh hard sciences as the compact puts it the compact demands that the richest schools give free tuition to students in the hard sciences which you can imagine would definitely be a strong incentive getting people out of the humanities and social sciences and into the quote-unquote hard sciences um a category that itself is is a problem but anyway the um that’s part of what the compact names do the biggest thing the compact aims to do i think is to force universities to engage in an enormous program of affirmative action for conservatives and to suppress political speech that the administration doesn’t like so the affirmative action program for conservatives is laid out in the part of the compact where it talks about a diversity of viewpoints in every department and school and subfield. And of course, I think that a diversity of viewpoints is good. Actually, universities have freer expression and more diverse viewpoints than any other American institution now. We have a humongous amount of disagreement on every faculty I’ve ever been part of and every part of the university I’ve ever seen. But it’s true that a lot of departments, you know, skew more to the liberal side than the conservative side of the political spectrum overall. And that’s what this is demanding, that in every field from, you know, art to, you know, African American studies, we find conservatives. to hire in those departments. And I guess I will say, as someone who’s been around a few higher-income universities, this kind of affirmative action is something universities already do a lot. We already do a lot of affirmative action for conservatives. But this compact would demand a lot more.

Archon Fung: On that viewpoint diversity phrase, one part of the debate around the compact has been this particular phrase in it is that it demands that universities transform or abolish institutional units that purposely punish, belittle, or even spark violence against conservative ideas.

Joey Fishkin: Right. And so I think a lot of people in the commentary have said, well, I don’t like that clause because it violates free expression in the First Amendment. People should be able to have a robust debate. And some of that might involve belittling. My problem with it is more hypocrisy because I see a lot of things coming out of the administration’s agenda. social media feeds that definitely belittle and punish and maybe even spark violence against other people’s ideas. So if you think that the Unitary Executive is a broad concept and it’s really speaking with one voice, then shouldn’t it establish a more broad standard of no punishing, belittling, or even sparking violence against ideas that you disagree with? I don’t know, maybe the politicians could set a good example before demanding that we do it. Yeah, absolutely. Look, it was a little surprising to me actually to read that clause and to read, because it would have been so easy for them to write it is the fig leaf of protecting all of science ideas. But they instead went for the, let’s just really say what we mean on that one. We only care about belittling conservative ideas. And that is something that not only do you have to punish it, you have to abolish or reform entire departments of your school that are, quote, belittling conservative ideas. I mean, I don’t know. The economics department should definitely be looking over its shoulder because if a conservative idea, no one really knows what that means, but if that means like the Trump administration’s idea, you’re not going to find a lot of defenders of tariffs in most economics departments. They’re pretty neoliberal. Are they belittling? you know, what this government is doing. And, you know, I just, and on down through every part of, I mean, all of the people in psychology who actually study the roots of liberal and conservative, I mean, oh gosh, you know, you can imagine how that’s going to go.

Stephen Richer: But regardless of the causal factor and of the facts on the ground, which we might dispute a little bit, I might be a little more pessimistic about sort of the state of intellectual diversity at serious universities. I do think as on the whole, it’s getting better over the last few years. There’s undoubtedly… a level of distrust with higher education among the American public right now that is at levels we haven’t previously seen there’s undoubtedly a lot of hostility towards higher education right now and Archon’s colleague professor at the ash center at harvard kennedy school Danielle Allen writes we need to be having this conversation. We need to be restarting this conversation. And this compact, while I might not sign it, at least restarts the social contract with the American public. Do you think that there is any merit on those grounds to this document?

Joey Fishkin: I would say I have a lot of respect for Professor Allen. I think there’s negative amounts of merit to this document in terms of the really necessary work that you’re referring to of rebuilding an understanding between universities and most of the United States about exactly what we do, why we do what we do, why what universities do is valuable, and all of that stuff I could imagine a world in which this compact, which has, you know, it’s full of right-wing craziness, has, you know, the effect of starting an honest conversation about, well, how should we, you know, change, you know, how we run universities and so on. But I feel like the incredible amounts of bad faith that the administration brings to any such negotiation or discussion that’s been amply demonstrated in their attacks on other schools already, including yours, indicates that it’s going to be a heavy lift. I would be much more interested in a conversation with sort of any other administration about these terms and how we think about federal money and all of that. This is the worst time to have that conversation.

Stephen Richer: So I think Archon and I might try to pull Professor Allen in for a future conversation, and we’ll be curious to have that, and we’ll circle back with you. But Archon, what happens to this school, to our school, Harvard University, and other schools, if seven or more of these schools sign this compact? How does it shift the landscape? How does it shift the position of holdout schools, do you think?

Archon Fung: I think it would make the position of holdout schools weaker because the collective action problem of sticking together for independent institutions begins to unravel. On that topic, one change in tactic, and you write about this a little bit, Joey, is that here the compact is posed to eight to ten schools, whereas the prior efforts of the administration have been addressing universities one at a time. And so why do you think that there’s a group address and does it make it easier or more difficult for those schools to act in unison? And then Jean Corbin in the chat kind of raises Danielle’s idea that maybe this could be the beginning, these eight to ten schools could be the beginning of a more collective effort among many more colleges and universities to think about, well, what should our industrial policy in education be on this set of questions?

Joey Fishkin: Yeah, look, I think these schools were chosen in part because the administration thought some of them might be softer targets and because in many several cases, the relatively strong presidents that some of these schools had had have been forced out by conservative activism, like at UVA and Penn. And I think the, The danger is that maybe the administration has chosen right and they’ve found soft targets. But I do think that the switch from the kind of carefully negotiated bespoke agreements with individual schools to trying to roll up more of the whole sector in one chunk it does create the possibility for more collective action. And I think a collective response of no from these schools or most of them would be quite a powerful starting point for telling the administration, an independent higher ed sector actually matters and you don’t get to just have the government telling all of us what to do. And as a former, you know, Texas law professor and really a Texan, I would hope that some of these schools can channel a little bit of the American broad, you know, resistance to national federal control of education. That’s where we need to go.

Stephen Richer: So, Joey, I used to play a parlor game during Passover where we would take a look at the ten plagues and we would say, like, which one do we think was the worst plague, whether it was locusts or whether it was bloods. So if you had to say sort of like which one of these is most problematic for universities from this ten point compact, what do you think would be the hardest for universities to swallow?

Joey Fishkin: Oh, there’s no question. It’s number ten by a mile. stick it at the end it’s the it’s the part where the justice department gets to unilaterally enforce the term a lot of the terms are vague and that gives huge discretion to the government to decide whether you are in trouble and i think the um that’s the core problem here and you know um many of the other things like viewpoint diversity and whatever i mean the university won’t implement it necessarily how the trump administration wants but all universities strive for viewpoint diversity all the time and the dynamics of that as you were saying you know change over time there’s been a lot of hiring conservatives lately at some schools and just i think there’s a lot of stuff in the middle that you know um is salvageable but the core problem is You know I just when you when you are thinking about an agreement like this, like the most important question is who decides, and what are the consequences. And, and if you keep your eye on that I think you’ll see why. I am pretty confident that no university of these nine is going to sign this exact document in this form.

Stephen Richer: So putting the Justice Department in the role of judge, jury, and fact finder, judge, jury, executioner, and everything, and removing it from the court system almost. Yeah.

Archon Fung: Right. So that’s why it’s great to have a legal scholar on board is to really highlight the importance of the kind of rule of law and due process kind of features of this compact and and and the idea that if you give up on that much due process, it’s really, really not a good thing. As promised, we never talk for more than thirty minutes, so we’re about at time. As a reminder, if you have suggestions or feedback on this episode or future episodes, please send to info at ash.harvard.edu.

Stephen Richer: And we put Professor Fishkin’s article that we were talking about in the chat. And thanks very much as always to Sarah, Evelyn, Colette, and Courtney for making this show possible. And of course, special thanks to Professor Joey Fishkin for joining us here today and look forward to seeing you all next week.

Archon Fung: Thanks so much, Joey.