The Unconstitutional Conditions Doctrine and the Compact for Excellence
Members of the Trump administration love to say that federal funding is a privilege not a right and therefore something that can be granted or withheld based on changing administrative priorities. This is correct, up to a point. Of course, the government does not have to fund education. But there are important constraints on the government’s ability to withhold funding it has provided or to condition access to a funding program, once established. Chief among them is the unconstitutional conditions doctrine, which holds that the government may not condition access to government benefits on the recipient’s agreement to waive their constitutional rights, including the rights protected by the First Amendment.
The Administration’s so-called Compact for Excellence in Higher Education flagrantly disregards this constraint. The Compact is, its own terms, an effort to maximize the mutually beneficial relationship that has existed for decades now between the federal government and American higher education by threatening to cutoff federal dollars to prompt universities to adopt what the administration clearly believes to be needed reforms. Whatever one thinks about the merits of these reforms, it is a basic fact of American constitutional law that government actors are not permitted to leverage their spending power in this manner. The administration is conditioning federal benefits (either the benefit of funding itself, or, as one spokesman suggested, the benefit of priority access to funding—and presumably, therefore, more funding) on an agreement to make changes that, under the First Amendment, the government has no right to compel.
The First Amendment rights that the Compact asks universities to forego are almost too numerous to mention, but they are many and they are blatant. Consider for example the requirement that universities maintain “an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant.” Although this demand may appear to further the same values the First Amendment does (who doesn’t love viewpoint diversity?), in fact under the First Amendment, the government has no right to dictate to universities the range of viewpoints that are present on campus. This is because it is a matter of political judgment what constitutes an open and undistorted, as opposed to a closed and distorted, marketplace of ideas—and therefore, the kind of judgment that members of the democratic political community must make for themselves. Hence, as Justice Kagan noted recently, no matter how “imperfect the marketplace of ideas may be,” the First Amendment categorically denies the government the power to “forc[e] a private speaker to present views it wished to spurn in order to rejigger the expressive realm.” This means that the government may not demand, and also may not coerce via the stick of federal funding, that universities create the “governance structure... necessary to create [an open intellectual] environment” including by “transforming or abolishing institutional units that … punish, belittle, and … spark violence against conservative ideas” or by actively “seeking out… a broad spectrum of viewpoints … within every field, department, school, and teaching unit.” It is instead the university’s responsibility to decide what spectrum of views is necessary to advance the research and teaching ends of its various departments, schools, and teaching units.
Similar problems plague many of the other provisions in the Compact. Consider for example the demand that schools “adopt policies prohibiting incitement to violence, including calls for murder or genocide or support for entities designated by the U.S. government as terrorist organizations.” To be clear, most universities—certainly my own—already prohibit unlawful speech on campus, so to the extent incitement to violence violates federal or state law, the Compact likely makes little difference, except perhaps in incentivizing schools to enforce these policies more aggressively than they otherwise might. But the government has no right to require universities to enforce laws that it fails to enforce itself. Nor does it have any right to do what it is clearly the main thrust of this provision to achieve: namely, to pressure universities into prohibiting speech that does not fall into the very narrow category of incitement that can be criminalized after Brandenburg v. Ohio but instead is classified for First Amendment purposes as high-value political speech, like the strong anti-Israel political rhetoric that played a big role in the student protests on campuses around the country last year. The administration clearly abhors this kind of speech. But it is the kind of “provocative and challenging” speech that the First Amendment squarely protects; more to the point, it is the kind of speech that universities cannot be coerced into prohibiting. Indeed, even speech that expresses support for entities designated by the U.S. government as terrorist organizations is, for the most part, constitutionally protected expression under existing law. This is because while speech that provides material support to designated foreign terrorist organizations can be banned, this is the case only with respect to speech that is uttered in coordination with those terrorist organizations, and only with respect to foreign terrorist groups. Speech that merely expresses support for foreign or domestic terrorist organizations remains high-value speech, meaning that universities possess a full First Amendment right to permit or prohibit it as they choose.
The government also has no right to compel schools to adopt policies of institutional neutrality that in effect prohibit them from speaking in their corporate capacity. These policies may be good or bad, from an institutional perspective. Reasonable minds disagree. But the choice about whether to speak or to be silent is one that, the modern First Amendment cases make clear, belongs to the speaker alone. This is because unlike, for example, the decision to racially discriminate, the decision to refrain from “actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university” is a protected expressive act, even if a silent one. In other words, it is a decision that First Amendment law leaves to the university to make, not the federal government.
There are even First Amendment problems with proposals that on their face do not appear speech-related. Consider for example the first reform listed in the Compact—the requirement that universities exclude any consideration of “sex, ethnicity, race, nationality, political views, sexual orientation, gender identity, religious associations” or their “proxies” from decisions about undergraduate and graduate student admissions, and financial support, and instead rely solely on objective criteria like the SAT to make these kinds of decisions. On the face of it, this requirement appears to have little to do with the First Amendment. Admissions decisions are not, after all, ordinarily considered expressive acts. And certainly, universities have no right to racially discriminate, or discriminate on the basis of gender, when it comes to admissions. What universities do possess, however—like all other expressive associations—is the right to decide for themselves what viewpoints they do or do not wish to advocate for, either privately or publicly. As cases like Boy Scouts v. Dale make clear, this means that universities not only have the right to decide what political views they want on campus, but also likely have the right to decide whether or not they wish to consider sexual orientation, or gender identity, or religious belief, when deciding who shall become a member of their institution when these decisions reflect, in a meaningful way, the organization’s own moral and political values. And there is a good argument that universities have an even stronger right than other expressive organizations to decide what students they admit as members of their community. This is because, since Justice Frankfurter’s influential concurrence in Sweezy v. New Hampshire, the right to decide “who they teach” has been recognized as one of the four fundamental “Freedoms” that the First Amendment protects. The Compact’s demand that universities alter not only the criteria they employ to make admissions decisions but the processes by which they do so is thus no small ask vis a vis the First Amendment: it is, in effect, a demand that universities waive one of the core autonomy rights they possess as educational institutions.
The fact that so many of its provisions infringe on the protected First Amendment rights of the universities it targets makes the Compact almost certainly unconstitutional. It does not matter that both the funding it threatens to limit, and the conditions it seeks to impose, relate to education. This sort of germaneness inquiry is irrelevant to the First Amendment question. In some of its unconstitutional conditions cases, the Court has suggested that the government imposes an unconstitutional condition only when it uses spending conditions “to regulate speech outside the contours of the program” that the spending funds. Read one way, this could be construed to mean that funding conditions that are relevant to the purposes for which the funding is allocated do not count as an unconstitutional condition but simply define the contours of the program.
But in fact, the Court has explicitly rejected the argument that unconstitutional conditions doctrine only applies to spending conditions that are unrelated to the activity the government funds. Instead, it has made clear that the government regulates speech within the contours of the program when it imposes conditions on how speakers use its funding to communicate a government approved message, but that it regulates speech outside the contours of the program when it seeks to control the views that private speakers advance. This makes sense: when a private speaker communicates a governmental message, she lacks any First Amendment rights that can be unconstitutionally conditioned. But this is not true when a private person speaks in her own voice, even when she uses government money to do so. In such cases, the private person has a right to express her own viewpoint on matters of public concern, even if she does not necessarily possess a right to speak on whatever topic she desires (it depends on the kind of forum in which she speaks). For this reason, as Chief Justice Roberts explained in USAID v Open Society, when the government “demand[s] that funding recipients adopt—as their own—the Government’s view on an issue of public concern,” that demand, “by its very nature, affects protected conduct outside the scope of the federally funded program.” It constitutes, in other words, a per se violation of the doctrine of unconstitutional conditions, even if the demand is in some sense (as it was in Open Society) “related” to the purposes for which the funding was allocated in the first place.
It does not matter, therefore, to the constitutionality of the Compact, that it conditions educational funding on educational reforms. The Compact clearly demands that “funding recipients adopt—as their own—the Government’s view on a matter of public concern”: namely, the pressing public question of how to regulate speech on campus, and more broadly, how to structure their expressive associations. There is simply no argument that universities that receive federal money do so in order to transmit a government-approved message, rather than to foster a “diversity of views.” The Compact represents, as such, a rather blatantly unconstitutional attempt by the Trump administration to leverage its power of the purpose to control what is supposed to be private speech.
The challenge is, of course, that the Compact’s unconstitutionality does not mean that it will be unsuccessful or ineffective as an instrument of control. Universities may hesitate to challenge the Compact because they fear something worse than an unconstitutional condition: namely, the total cessation of all government education funding writ large. As I have argued elsewhere, our constitutional guardrails may not work very well in an economic system in which the federal government possesses so much financial power. But nonetheless they exist. And universities that are considering signing the compact should recognize that by even considering signing, they would be giving in to the kind of leveraging of speech power that the cases recognize poses a serious threat to the (democratic and truth-seeking) values that the First Amendment protects, and that universities are supposed to be dedicated to as well.
