Sacramento Faculty Lobbying on April 11, 2008 

by David Lloyd

During the encampments established and maintained by courageous students and faculty, whose ethical integrity in naming and resisting Israel’s recently resumed genocide in Gaza disgraced the complicity and collaboration of their administrations, activists held firm to the simple exhortation, “All eyes on Gaza.”  Though they aimed to disrupt business as usual at institutions that are deeply invested in Israel’s war machine, embroiled in research partnerships with the Israeli universities that design the weaponry, train the personnel, and program the genocide, and ideologically in step with the settler colonial ideology of Zionism, the students were concerned that media focus solely on their protests would distract from the atrocity unfolding with ever increasing violence across the killing fields of Gaza’s concentration camp. Even as their institutions, violating their duty to protect and foster all their students, called in heavily armed phalanxes of police at the behest of Zionist lobby groups and Republican and Democratic politicians alike, or tolerated the vicious assaults of right-wing vigilantes who recognized a natural affinity with their Zionist allies, the students continued to remind us that they were there, on their own campuses, because Israel had systematically destroyed every university and every school in Gaza in its ongoing campaign of cultural genocide that has now extended to the West Bank and occupied East Jerusalem.

Within the first months of their relentless assault on Gaza, Israel had demolished every institution of higher education in Gaza, sometimes with calculated mining of buildings, sometimes with targeted shelling and airstrikes. They murdered with deliberate intent administrators, professors, and students, even as they continue even now to destroy hospitals and target medical personnel. Their invasion aimed at the complete destruction of the capacity of Palestinians to reproduce either their biological or cultural life. Now, as Gazans have availed of the short-lived ceasefire that Israel was bound to violate sooner or later to return to the ruins of their homes, among the first things they have done is to reestablish schools and try to recreate a system of education. Education and the freedom to learn has always been a deep commitment of Palestinian society long before the land’s occupation by Zionist forces and Israel’s systematic attacks on Palestinian learning, from the theft of whole libraries and archives in the Nakba and beyond to its isolation and siege of universities on the West Bank. But here, as in so many other areas of civil society, Palestinians persist and professors in exile continue to offer classes to students in Gaza over the fragile internet connections that are intermittently available.

Capitulation

Meanwhile, in the United States, the question is whether there are any universities left, not in Gaza, but here. The hapless, often willing capitulation of university leaderships, even at the most richly endowed institutions in the world, to the inroads of the Trump administration’s “all out war” on higher education has already, within weeks of Trump’s unconstitutional executive orders, been a spectacular betrayal of their duty to protect the educational and social missions of their universities. Despite Palestinian student and protest leader Mahmoud Khalil’s appeals to Columbia’s administration for protections against doxxing and harassment, and his self-evidently well-grounded warnings that threats by Columbia faculty members against him would lead to his detention, no help was extended and the university effectively left the door open to ICE to disappear him and, subsequently, to conduct further warrantless raids on other students’ rooms—thus allowing access to law enforcement agencies that had been denied by previous administrations at the very moment when those agencies, unleashed by Trump’s fascistic sidekicks, have gone more rogue than ever before. As Khalil states in his letter from detention in Louisiana, Columbia “laid the groundwork for the US government to target me by arbitrarily disciplining pro-Palestinian students and allowing viral doxing campaigns – based on racism and disinformation – to go unchecked.”

Chilling as Khalil’s case is, and much as it stands as a harbinger of the repression of dissent that is manifestly to come, he is right to maintain that what appears as an instance of brutal overreach by Trump’s authoritarian regime has to be seen in a longer trajectory of university capitulation to Zionist pressure and collaboration with US state interests. It is no less the case that above and beyond the intense and even eager repression of student dissent on the part of university administrations nationally since October 7, 2023, and regardless of the Trump administration’s recent amping up of the pressure on them, American universities have been engaged in a long campaign of self-destruction fueled by a malevolent combination of forces and organizations dedicated to the capture and containment of higher education at least since the late 1960s.

In the first place, the ongoing capitulation of Columbia and other institutions to Trump’s spurious investigations, which are turning the Department of Education under Linda McMahon into a ludicrous if hyperaggressive smack-down arena, have a longer and equally shameful history. To go back no further than the administration of accused accessory to war crimes, Joe Biden, his attacks on the encampments and baseless insinuation of the violent conduct and “disorder” of these orderly, disciplined and pluralistic protests scarcely differ from the rhetoric of Republican politicians and Zionist operatives. Biden’s statement in May 2024 that “People have the right to get an education, the right to get a degree, the right to walk across campus safely without fear of being attacked” established the same premise as informs the Trump DoE’s letter to Columbia that claims that the university had permitted “an unsafe or hostile work or study environment.” With regard to support for Zionism and defamation of students who oppose its genocidal program, hardly a hair separates the rhetoric of Biden from that of the Trump regime.

Executive Director of Columbia’s own Knight First Amendment Institute, Jameel Jaffer, forthrightly condemned the DoE’s letter as part of an effort to "subjugate universities to official power”. But it was the embarrassing performance of disgraced former Columbia President Minouche Shafik at Congressional hearings last April that threw the door open wide to such politically motivated inroads on the relative autonomy of higher education. Not only did she eagerly collude in Republican congressional repesentatives’ vilification of members of her faculty on the basis of statements cherry-picked without context, threatening to terminate the employment of one of them, she also permitted to pass without dissent the ignorant claim that “from the river to the sea” or “long live the intifada” are genocidal chants when a few minutes study, not to mention knowledge of her own first language, would have easily allowed her to refute such calculating stupidity.

Not that Shafik’s performance in this was any worse than her peers, the Presidents of Harvard, the University of Pennsylvania, and MIT, in December 2023. None seemed willing to contest the premises of the egregious opportunist Congresswoman Elise Stefanik when she absurdly “equated calls for an intifada as a call for a global Jewish genocide.” Like Shafik, UPenn’s Liz Magill’s and Harvard’s Claudine Gay’s heads soon rolled, but not for the reasons they should have. It was not any robust defense of academic freedom and first amendment rights, knowledge and research, context and nuance, but their failure to bend even further over backwards to the ignorant rantings of the congressional kangaroo court and their foot-shuffling inability to push back that left them and their comfortable, overpaid jobs vulnerable to further pressure from concerted Zionist activists, pro-Israel lobbyists, and conservative donors. 

As further university “leaders”, including the University of California’s Michael Drake, preemptively deliberate the path of no resistance, abandoning DEI programs and introducing disciplinary regulations on student protest and even curricula in advance of the arrival of a clown-cart of DoE Joint Task Force “investigators” on some 60 university campuses, one is left in the embarrassing position of having to invoke the memory of a U.S. Defense Department lawyer, Joseph Welch. Welch famously brought down Senator McCarthy after his long series of red-baiting hearings, merely by asking “Have you no decency?” But the corruption and intellectual debasement of the US universities and their leadership has descended to the point where it proves impossible for a single university president to call out the ignorance and stupidity of the politicians that harass them and whose project is by no means the protection of Jewish students, many of whom were among the encampments, but the erosion of higher education itself. That not a single one of these leaders of some of the wealthiest and most prestigious institutions in the country, supposedly the intellectual hubs of the nation, could summon the courage to defend the importance of knowledge, ethics,  and thought, or to condemn the genocide and the scholasticide ongoing at that very moment in Gaza, awareness and defiance of which were fully on display at their own students’ encampments, is both a symptom and a cause of the destruction of the university in the United States. Calculating connivance in stupidity, whether of politicians or of donors, consolidates the tropism towards intellectual vacuity and moral posturing that has long been the tendency of the corporate university's leadership. The greater the wealth and prestige, the less the ethical courage, comes to seem the basic principle of the university’s intellectual bankruptcy.

 Collaboration

Prior to around 2009 and Israel’s first all-out war on Gaza, which slaughtered around 1400 Palestinians, systematic repression of pro-Palestinian speech on US campuses was relatively rare: the general “common sense” of the university as of the US public was implicitly if not explicitly pro-Zionist, persuaded as people were that Israel was “the only democracy in the Middle East”, that the Oslo Accords had instituted a peace process from which Palestinians constantly walked away, and that—especially in the wake of 9/11 and the second Intifada, Palestinians were terrorists in any case. Grotesque racist cartoons of Arafat and other Palestinians, close kin to Nazi anti-semitic caricatures, appeared in every mainstream news outlet with mind-numbing regularity.  Understanding of Israel’s apartheid, of the reality of what passed for an “occupation”, of the conditions for Palestinian prisoners, of Israel’s ongoing theft of Palestinian land and resources, and of the draconian slow genocide of the siege on Gaza were confined to a minority. Under such an effective news blockade, censorship and repression were unnecessary.

But the launching of public campaigns for BDS and in particular of the campaign for academic and cultural boycott of Israeli institutions called forth a heightened degree of censorship and repression now that the hegemony of the Zionist narrative could no longer be assured. Initial Zionist willingness to debate advocates of BDS, in the cocksure belief that, having held the dominant narrative for so long, they would easily prevail, rapidly waned as defense of Israel’s regime became increasingly fraught. Argument was displaced in short order by lawfare, a strategy that has developed and expanded in time with the brutalization of Israel’s own methods of repression and genocidal warfare. In warfare and lawfare, the failure to overcome resistance leads inevitably to retrenchment and amplification rather than recognition of the injustice of the cause. Here again, Khalil's case is exemplary: lawfare having repeatedly failed to break Palestinian solidarity in the courts, whether in cases brought against the American Studies Association for its boycott resolution in 2013 or Fordham University’s efforts to ban its SJP, the Zionist agenda is now being enacted in extralegal ways by an authoritarian state apparatus in the hope that gross violations of civil rights will produce a de facto transformation of the law, much as Israel’s violations of international law, as Noura Erakat has shown, have had the effect of producing new and brutal legal norms.

University administrations have not been shy of collaborating with the censorship and repression of Palestinian solidarity in synch with a wider political agenda that has seen the passage of House Resolutions condemning BDS, the banning of BDS by state contractors (including universities) in numerous states, and, most recently, actions like the direct interference of the Governor of New York State Kathy Hochul, who removed a job listing at CUNY’s Hunter College for a Palestinian Studies Scholar, on the grounds that the inclusion of the well-established scholarly terms and empirical or legal descriptors of Palestinian and other colonial conditions—apartheid, genocide, and settler colonialism—when applied to well-documented Israeli practices constituted antisemitism. University repression has tended to proceed under the familiar mask of institutional neutrality but has not stopped short of outright censorship—as with the banning of student-led Palestine solidarity organizations (including Jewish ones)—and prosecutions. 

Although, as Palestine Legal reports, university repression has escalated markedly under Zionist pressure over the past 18 months or so, it has been so widespread since 2009 that a handful of examples will have to suffice. The rash of prosecutions of student protesters that have taken place since the breaking of the encampments by police force last spring had a forerunner in then-Chancellor of the University of California, Irvine, Michael Drake’s initiation of a disciplinary process that in 2010 led to the prosecution of the “Irvine 11”. Palestinian and Muslim students had disrupted a speech by then Israeli ambassador Michael Oren, whose invitation to campus at that moment was clearly provocative in the wake of Operation Cast Lead. The Orange County prosecutor relied on Drake’s sanctions to charge the arrested students with misdemeanors. The recent firings of Columbia Law professor Katherine Franke and Yale International Law professor Helyeh Doutaghi were notoriously preceded by that of Steven Salaita at the University of Illinois in 2014. University presidents have almost univocally condemned the academic and cultural boycott despite overwhelming and well-documented evidence of the complicity of the Israeli universities with which they maintain close financial and research collaborations in Israel’s war crimes and violations of human rights.

That 100 US university presidents should have condemned the American Studies Association for its boycott resolution in 2013 came then as no surprise. Why would it have? Such are the presidents of institutions, like former UC President David Gardner, whose refusal to divest from apartheid in the 1980s fueled the student-led divestment movement that eventually brought many colleges and universities to do the right thing, which, indeed, they now celebrate on their websites. At that time, supporters of South Africa argued that “South Africa [was] freer than most African countries" and that it “was scarcely the only country in Africa systematically to violate human rights”.  Fed by a well-funded South African propaganda campaign, they questioned the readiness of black Africans for democracy and argued for “increasing all forms of contact” under the rubric of “constructive engagement.” Then, too, university administrators unleashed the police on demonstrators, dismantling the “shanty-towns” that were their encampments. 

Absent from that moment, however, was the charge of antisemitism, that has been so irresponsibly and recklessly flung at social justice activists as to have become virtually content-free. No divestment activist was ever charged with anti-Afrikanerism, though Elon Musk and Donald Trump have sought lately to appeal to the wounded feelings of white South African racists. The weaponization of antisemitism by Zionism has offered the university authorities a new instrument with which to suppress calls for divestment from Israel and corporations that support its apartheid agenda that build on the experience of anti-apartheid campaigns against South Africa. Resistance to divestment and the preservation of university investments in corporations that systematically abet Israel’s violations of Palestinian human rights and assist the commission of genocide—from Hewlett Packard and Caterpillar to Boeing and Raytheon, Maersk and Chevron—is continuous with longstanding university complicity in the business of repression. Antagonism to BDS is intensified by its intersection with the rise of demands on universities to divest from fossil fuel corporations that have both accelerated and denied climate change and imperiled the future of the planet and of their students’ futures, thus exacerbating the contradictions that universities face between their putatively humanistic missions and their material as well as ideological embeddedness in a rapacious neoliberal order.

In some respects, then, the Zionist-led campaign against student activists and their faculty allies is parasitic on the longer history of efforts to subordinate the university to business interests or to those of the neoliberal corporate-state convergence. In its ever-more open embrace of fascist tendencies that has stripped away the democratic mask Israel has always sported, Zionism has seen its image in the mirror of global authoritarianism and found its real face there, to the alarm of whatever remains of that self-deluded category, the liberal Zionist. With unabashed alacrity, it has served as the leading-edge of a right-wing and corporate reclamation of the university whose aim is ultimately the destruction of an already hollowed out liberal institution. Appeals to protect the injured sensibilities of Jewish (read Zionist, since JVP and If Not Now clearly don’t count) students and faculty cynically mobilizes the last admissible remnant of the much-maligned campus DEI policies, ever caricatured and exploited by conservative media to generate a loss of faith in higher education that should have been laid at the foot of right-wing cuts.

At the same time, Zionist fear of such “woke” coalitions as that between Black Lives Matter and the Palestine solidarity movements has amplified right-wing antagonism to DEI and energized the Trump regime’s determination to abolish any vestige of anti-racism in the university. The conflation by Zionist organizations like the ADL of Palestine solidarity with antisemitism succeeds only in isolating the real struggle against actual antisemitism from genuine antiracist social movements. But the underlying aim is not to fight antisemitism but to defend an Israeli state predicated on Jewish supremacy which must make alliance with white supremacist authoritarianism to survive. The shared goal is to deradicalize our campuses at a moment when, as during the 60s, capitalism has lost its hegemony and finds that the majority of younger people lean socialist and the majority of the population favor government programs that by any other name would be social democratic, from universal healthcare to social security.

 

SUBORDINATION

Zionist organizations’ success in their campaign to shut down pro-Palestinian solidarity on our campuses accordingly finds its condition of possibility in a half-century right-wing campaign to transform the university in a direction that would subordinate it to the needs of the corporations. In 1971, Lewis Powell, later Supreme Court Justice, wrote for the American Chamber of Commerce a memorandum in which he laid out the necessity to take back the campuses and stem what he calls—in terms remarkably resonant with the language of the contemporary right—the “ideological war against the enterprise system and the values of western society” whose “disquieting voices” he found among the New Left. His portrait of the “minority” of left voices has become drearily familiar, as has his insistence on the lack of “balance”, “conspicuous by its absence on many campuses” and on the lack of “conservative or moderate” voices. Powell lays out a blueprint for taking back the American university which furnished the map for a concerted and long-drawn out right-wing campaign to regain hegemony, extending from the campuses to the media. 

Powell’s analysis and recommendations were amplified some years later by the conservative intellectual warrior Samuel Huntington (of “clash of civilizations” fame) in the Trilateral Commission report, The Crisis of Democracy of 1975, where he expressed alarm over “an excess of democracy” driven in large part by “a tremendous expansion in higher education.” Huntington expressed most clearly the anxiety shared by the Trilateral Commission that the result of the postwar expansion of higher education was “the overproduction of people with university education in relation to the jobs available for them,” leading to frustration and discontent with capitalism. The corollary of this perception was that “higher educational institutions should be induced to redesign their programs so as to be geared to the patterns of economic development and future job opportunities.”

Pursuant to Powell’s and Huntington’s logic, the following 50 years saw the steady decrease in state funding to higher education and the corresponding increase in university reliance on student fees and on wealthy and largely conservative donors to make up the shortfall, along with the increasing vocationalization of higher education. This has gone hand in hand with the shift from the notion of public education as a right (historically a right racially distributed, it must be said, primarily to white citizens) to the conception of education as a commodity in which to invest—and the corresponding transformation of the students themselves into commodities of varying value for accumulation. As Trump’s recent appointee to head the Department of Education, Linda McMahon succinctly put it, reflecting the desperately impoverished conception of education that best serves capitalist culture, “Postsecondary education should be a path to a well-paying career aligned with workforce needs.”

We continue to live in the shadow of these antidemocratic definitions of the crisis of democracy and the remarkable degree to which it was blamed on the radicalization of the campuses. At the same time, we retain a similar but inverse understanding of the university and its functions. For a decade or so after the end of the 1960s, the university continued to offer shelter to critical and even radical voices and continued to present that as an essential part of its educational mission. To some extent, the relative hospitality of the university to critique stemmed from the origins of Anglo-American conceptions of the university in late Enlightenment philosophers like Immanuel Kant and Wilhelm von Humboldt, for whom the university provided space for what Kant called the philosophical critique of the faculties—Law, Medicine, and Theology—that he saw as direct “tools of the state” (the contemporary equivalent would be the academic-military-industrial complex). They recognized that the university was, as Louis Althusser would later term it, an “ideological state apparatus”, but believed that critique could insure its openness to transformation and to the accommodation of new ideas. In some respects, Kant’s liberal idea of the university remains what we understand by a university and its meaning, an understanding that underlies the mostly under-theorized dismay on the part of faculty at the erosion of the humanities and the shrinking of the space in research or teaching for radical critique of the institution or of society. 

Through the 1980s, to a very large extent left critical thinking did exercise a considerable degree of counterhegemonic influence within the university, including antiracist as well as anticapitalist thought. In a sense, we would not be wrong to claim that within the university and through the teaching of generations of students, the left “won” the so-called culture wars as these played out in a gradual liberalization of social mores, from what the right now term “gender ideology” to the rise of social movements against globalization and of antiracist organizing, and even the emergence of a vigorous and theoretically informed Palestine solidarity movement that always understood itself in conjunction with other social movements. 

Such achievements, however, went hand in hand with a series of compromises with institutionalized modes of containment of critique. Thus “affirmative action”, attacked in courts and political initiatives, gave way first to “multiculturalism”, as the university sanitized the demands of the student divestment activists to end “apartheid on campus,” and multiculturalism, which responded to the student demand for diversification of the faculty, in turn succumbed first to the rubric of “excellence and diversity” (code for “diversity within the existing protocols of the university”), and finally to the fully bureaucratized DEI, diversity, equity, and inclusion. The university succeeded in successive neutralizations of efforts to transform its institutional function as an instrument of racial capitalism. The bitter irony is that the left seems forever doomed to defend institutional policies imposed by the right in effort to contain genuine desegregation and which the same right then attacks as extreme and absurd.

No less important to the assault on higher education were the fundamental historical changes in the conditions of possibility of the postwar liberal university. That university was more precisely a Cold War university: ideologically, it needed to demonstrate a link between capitalism, democracy and freedom, including the freedom to dissent that the capitalist West found essential to hold up against “totalitarian” socialism. This fact did mean that the universities furnished to a limited degree exploitable political space for a minority of radical intellectuals, and even to the more extensive class whom Powell identified as ranging “from a Herbert Marcuse, Marxist faculty member at the University of California at San Diego, and convinced socialists, to the ambivalent liberal critic who finds more to condemn than to commend.” That space, which the Cold War university could not entirely close down, enabled critical intellectual work within the university and in coalition with social movements and student organizations. Inevitably, the end of the Cold War and the emergence of a still incomplete project of the neoliberal “New World Order” in its wake obviated the need to maintain that space of so-called “academic freedom” and entailed its gradual but steady erosion, until now, only remnants remain. The steady downsizing of the “critical” disciplines of the humanities and interpretive social sciences that responds to capital’s growing demand for outcomes and skill-sets to produce a docile and malleable labor force, relayed in a drumbeat of full-throated attacks on university education in the Wall Street Journal, heralded the transformation of higher education into vocational training, a tendency justified precisely by its increasing cost as a commodity that must repay the investment. 

Even as “tenured radicals,” as the right liked to call them, were extending their limited cultural hegemony in a restricted sphere of the university, conservative forces, always the better Marxists, played the economic card, militating for cuts in public support of higher education that gradually reduced both state and federal funding to a small percentage of university budgets. Consequently, if not programmatically, universities’ dependence on corporate funding or billionaire donors, who can de facto determine the educational policy of the institutions, left them vulnerable to the ideological demands of their patrons. Powell’s prescription to the Chamber of Commerce, to take back the American university, has been all but achieved. 

Contradiction

Into that space of vulnerability of the university, a product of both its internal contradictions and of external economic and political developments, Zionism has stepped, drawing in its wake the extreme right white supremacists with their hatred of wokeness, DEI, critical race theory, intellectual life, student radicals and “Marxist” faculty. It has proven as adept at leveraging the power of donors to limit expression on campuses as it has in making common cause with fundamentally antisemitic tendencies, from Christian Zionists to right-wing extremists, including openly antisemitic leaders like Hungary’s authoritarian prime minister, Viktor Orbán, the idol of CPAC. We should recall that the fall of UPenn president, Liz Magill began not with October 7, but a few weeks before in the efforts of Zionist donors and organizations like the ADL and the American Jewish Committee to suppress the Palestine Writes festival on that campus in September 2023, on the grounds that it hosted “provocateurs willing to spread antisemitism.” For all these organizations’ protestations that they respect freedom of expression, it is clear that the aim is to suppress any critical analysis of the state of Israel that causes discomfort to Zionists, much as the Republican legislatures in Florida and other states have sought to suppress the teaching of the facts of Black enslavement, Indigenous genocide, and US structural racism on the grounds that they disturb white students. To claim, as the AJC did, that “Events that gather writers, scholars, and artists to focus on a particular culture’s experience and its art are vital parts of the university environment on American campuses” while at the same time denying Palestinians or their allies the right to name in the terms that they choose the determining factors in that cultural experience, Israeli apartheid, settler colonialism, and genocide, betrays the insurmountable contradictions in which the Zionist narrative consistently founders.

As Albert Memmi long ago pointed out in his classic text on settler colonialism, The Colonizer and the Colonized, every colonialist eventually gravitates into violent authoritarianism, driven there by insuperable contradictions. “Every colonial nation carries the seeds of fascist temptation in its bosom”, Memmi observed. The tendency of Israeli political culture towards an ever-more extreme and genocidal racism over the last couple of decades bears out Memmi’s logic, just as his equally trenchant remark on the ways in which those fascist tendencies return to exert their influence on the “mother country”, or the states that sponsor the settler colony. The rightward turn of Zionism, which has stemmed from its inability to maintain its liberal façade once confronted with a vigorous Palestine solidarity movement capable of communicating Palestine’s “particular culture’s experience” under Israeli domination, now exerts its destructive influence on the American university, seeking the silencing, the detention, the prosecution, the dismissal of those who make its contradictions and its crimes uncomfortably public. 

The common cause that Zionist organizations have made with the fascistic Trump regime in its similarly motivated antagonism to intellectual life and genuine education is not a merely contingent or opportunistic alliance. It belongs with the very logic that has informed Zionism since its inception and that was initially openly expressed: every colonial enterprise has to eliminate both the physical presence and the cultural and intellectual life of the indigenous population. Israel’s genocidal war on Gaza destroyed every one of its universities but has not broken the spirit or the creative and intellectual will of the Palestinian people. On the contrary, cultural destruction tends to rebound on the perpetrator and Zionism's deepening antagonism to intellectual debate and creative life manifests all the mediocrity and spiritual rigidification characteristic of what Memmi dubbed "the colonizer who accepts", the willing agent of racism and dehumanization. 

It remains to be seen whether the administrations and trustees of American universities will muster the courage to face down Zionist pressure to close down what remains of free inquiry and expression in the US university and resist MAGA’s inroads under the spurious cover of investigations of antisemitism. The record to date of capitulation and preemptive collaboration makes it unlikely that they will find the will to do so. That may leave us the sole alternatives either of imagining and realizing a transformation of the university and its mission radical enough to constitute its abolition or of abandoning it to sink into the ruins it has brought down upon itself.

Oxford, Ohio on April 28, 2016

by Timothy V. Kaufman-Osborn

 

Dear colleague (Take #1)

    “Dear Colleague.” So begins the letter sent by the U.S. Department of Education (DoE) to colleges and universities on February 14, 2025. This communication, however, is anything but collegial if, as Merriam-Webster tells us, this term includes as one of its meanings: “marked by power or authority vested equally in each of a number of colleagues.” Ostensibly written “to clarify the nondiscrimination obligations of schools and other entities that receive federal financial assistance,” this letter’s salutation implies that what follows is so much legal counsel offered by one partner to another in the common cause that is education. In fact, however, this “guidance” quickly turns into an ominous bundle of accusations, imperatives, and threats directed against what JD Vance has labeled an “enemy” who must now be defeated.

    “In recent years,” the letter opens, “American educational institutions have discriminated against students on the basis of race, including white and Asian students.” Colleges and universities thereby stand accused of embracing “repugnant race-based preferences” and, indeed, of perpetuating forms of “segregation” that are “a shameful echo of a darker period in this country’s history.” To reproduce this ugly past under the banner of “diversity, equity, and inclusion” is to traffic in a “smuggling” operation that reproduces forms of bias prohibited by Title VI of the Civil Right Act of 1964 and the Equal Protection Clause of the U.S. Constitution. 

This accusation quickly morphs into an imperative as the DoE announces that it “will vigorously enforce the law” against anyone who refuses to comply with its dictates; and that declaration soon becomes a threat as the letter’s recipients are warned that any institution that dares to disobey may find itself stripped of all federal funding. Those who are initially identified as “colleagues” are, by letter’s end, redefined as recalcitrant subjects whose conformity to federal law can only be secured by means of punishment, whether anticipated or actually inflicted.

Buried in a footnote, the February 14 letter concedes that it “does not have the force and effect of law and does not bind the public or create new legal standards.” This disclaimer, however, is belied by the letter’s coercive intent. What this document seeks is the reconstitution of colleges and universities as sites of ideological indoctrination committed to, among other things, the rescue of white supremacy, the reconsolidation of heterosexist gender identities, and a specious doctrine of meritocracy that will do no more than camouflage kleptocratic rule. Accomplishment of these ends demands higher education’s capture within a larger authoritarian regime that can have no place for colleges and universities dedicated to critical inquiry or the academic freedom that is its indispensable condition. That done, those addressed by the DoE as “colleagues” will in fact be so many subordinates.

 

Dear colleagues (Take #2)

  

          “Dear Colleagues.” So opens the March 10 communication sent by Harvard’s president and other senior executives officers to all who are this university’s employees. Composed in response to unspecified but “rapidly shifting federal policies,” which we must assume includes those announced in the DoE’s February 14 imperative, this letter imposes a freeze on all staff and faculty hiring. This order, its recipients are told, is effective immediately and will remain in place indefinitely. 

            What is the sense of the term “colleague” in this letter’s salutation? “We are enormously grateful,” effuses President Garber, “for your dedication and commitment as we work collectively to advance our mission.” Those who perform this work, it appears, are those indicated by the Oxford English Dictionary (OED) when it defines a colleague as “a person who is employed in the same workplace or organization: a co-worker.” But this characterization of Harvard’s employees as partners in a shared endeavor presupposes and at the same time obfuscates the hierarchical structure of rule that authorizes some to issue this imperative and, by implication, denies this same prerogative to those whose foremost obligation is to obey. To concede this is to acknowledge that America’s colleges and universities are themselves legally organized as autocracies and for that reason replicate rather than repudiate the authoritarian regime within which they are now being subsumed. 

The basic legal structure of the American academy, as I have explained elsewhere, is an accident that emerges out of circumstances specific to the pre-Revolutionary era, most notably the absence of an established body of scholars who might undertake the work of institutional governance, as was true at Cambridge and Oxford. That lack enabled local elites, chiefly clerical and political, to maintain control over America’s earliest colleges; and it is the obdurate legacy of this colonial relic that we now find depicted in the hierarchical organization charts of U.S. institutions of higher education.

These diagrams demonstrate what Walter Metzger and Richard Hofstadter once labeled “the great anomaly of American higher education.” Whether specified in a charter, enabling statute, or state constitution, this peculiarity consists of the law’s location of the university’s powers of rule within incorporated boards that are conventionally dubbed “external” insofar as their members are not employees of the universities they govern and “lay” insofar as expertise in matters academic is neither required nor expected as a condition of appointment. These bodies in turn are authorized to appoint a chief executive whose principal duty is to implement board directives and oversee the academy’s everyday operation. Beneath this officer, we find everyone else, whether designated as staff or faculty (although each of these groups is internally stratified by, for example, the demarcations between deans and associate deans, tenure-track faculty and contingent instructors, directors and administrative assistants, etc.).

What renders this constitutional form autocratic is the disenfranchisement of those who are subject to these boards’ rule from any legally guaranteed title to participate in that power. These are the persons we classify as employees, and this economistic designation is itself an indicator of their lack of any political authority to make the rules by which they are governed or to select and hold accountable those who do so. This is so not because boards or their chief executive officers are wannabe despots, but because most American colleges and universities are structured as a specific kind of corporation. For legal purposes, each of these boards is the corporation that is any given college or university, and it is to these bodies that the law grants the power to rule over its designated jurisdiction. Those who are not members of these corporations are those who, by the law’s mandate, collectively comprise the ruled. 

True, certain categories of employees (for example, the faculty) may sometimes be permitted to play a role in the academy’s governance, but that opportunity is delegated and so may always be revised or even revoked by its rulers. That, to illustrate, is precisely what happened last year when the University of Kentucky’s governing board unilaterally stripped the faculty senate of its authority over the academic program and replaced that body with one whose role is entirely advisory. Should that university’s president call the members of this faculty “colleagues,” that will veil their situation as subjects whose power is held and exercised at the pleasure of monocratic others. To extend this label to contingent instructors and staff members who are at-will employees is to create a condescending veneer of equality that is mocked by the American academy’s antidemocratic legal form. Here, too, we find rulers and subjects but none who are rightly called “colleagues.”

 

Dear colleagues (Take #3)

When we weave together these two “dear colleague” letters, we see why Adam Sitze is right to label the American academy’s current situation “autocracy squared.” This is arguably the worst of all possible worlds, for here the autocratic academy ruled by external boards becomes a pawn of purposes dictated by those beyond, whether that be the Federal executive, state legislatures, plutocratic donors, and/or foundations that are no friends of the academy. Perhaps, therefore, now is the time to ask how U.S. colleges and universities might be reconstituted in democratic form, thereby rendering those who do its work not so many subjects in the guise of employees but, rather, “co-workers” in whom power is “vested equally” and who, for that reason, are in fact entitled to consider themselves colleagues. 

How that might be done is intimated by this definition of a college, which is also taken from the OED: “an independent self-governing corporation” established “for purposes of study or instruction.” What this sense suggests is the possibility of fashioning the American academy in the form of what state statutory codes typically call member corporations. California’s nonprofit incorporation statute, to illustrate, invites the creation of juridical entities whose members are defined as those who have the right to vote for as well as to remove directors, to adopt or amend their articles of incorporation and bylaws, and, more generally, to exercise the additional powers conventionally afforded by law to incorporated bodies (for example, to determine the disposition of capital assets).

The fundamental difference between member corporations and their autocratic counterparts turns on how the power of rule is organized within each. In the latter, the authority to rule is legally monopolized by these boards and delegated downward through the formal chain of command depicted in standard organization charts. In a member corporation, this chart is turned upside down. Ultimate authority resides not within a head severed from the subjects it rules but, instead, within a body whose members may (or may not) choose to delegate authority upward. That authority, however, can always be recovered by the incorporated body politic that is its source as well as the ground of its legitimacy; and it is for this reason that the 18^thcentury jurist William Blackstone was right to label this legal form a “little republic.”

Within this corporate form, the power of rule is exercised by its members over themselves; and they may do so either directly in assembly or indirectly via selection of the representatives they authorize to exercise a corporation’s powers on their behalf. These representatives may be organized within senates; but, unlike those within the autocratic university, these are not advisory bodies whose role is restricted to offering counsel to those who need not heed it. Instead, these senates are true legislatures whose officers may adopt, amend, or eliminate the statutes of a collegial enterprise whose members are so many citizens of a university organized as a self-governing corporation. 

 

Becoming colleagues

Not long ago, Ryan Enos and Steven Levitsky published an op-ed titled “Harvard Must Take a Stand for Democracy.” There, they called on Harvard’s president to “give a high-profile speech defending democracy and condemning the administration’s assault on it.” To which Austin Sarat responded: “As professors continue to press college presidents to go beyond trying to protect the interests of their own places and take up the defense of democracy and the rule of law, faculty members, speaking through their own governing bodies, should also do so. They should pass and publicize their own statements and resolutions.” Were we scholars to do that, Sarat concludes, “our defense of democracy will be rooted, as it should be, in the democratic practices of faculty self-governance itself.”

Perhaps, though, Sarat does not go far enough insofar as he fails to ask whether faculty self-governance can in fact be realized within a legal form that renders their participation in institutional rule forever vulnerable to constriction and even elimination. Today, beset by a U.S. president that castigates us as foes, we find ourselves in a defensive crouch; and, from that posture, too often, we appeal to our institutional rulers to speak up against and save us from the autocrat without. That strategy, Sarat might have said but does not, will only leave us more dependent on the beneficence of autocrats within. Instead, let us dare to imagine an academy whose members, without equivocation, can address one another as “dear colleagues.”

 

 

 

Columbia University on November 1, 2022

I learned of Columbia University’s surrender to Trump’s extortion using $400 million in federal research funds towards the end of a dinner in London.  We had a couple of good friends over, one American and the other Turkish, both have lived and worked in the UK for many years.  

We’d been joking about how we were all in the same situation now, the “oriental” and the American despots pacing their twin quarter-decks, ranting and illegally harpooning their enemies, while their crews tried to stay out of sight.  The analogy didn’t quite work, since Turkish students have been in the streets protesting president Recep Tayyip Erdoğan’s arrest of his strongest opponent, Ekrem İmamoğlu, the mayor of Istanbul. But it diverted us for a few minutes.

 

 But reality sank in again. The American remarked that she saw the failure of Trump’s opposition as permanent. U.S. democracy was effectively over.

 

The people of the United States have grown up assuming that their institutions were set in stone, she said. That they could never crumble. No one could take them over.  Now look.  They don’t know what to do. They aren’t doing anything.

 

They are figuring it out now, I said.  People are scrambling to reassess. Trump is taking their government apart. They’re yelling at their congresspeople in town halls.  People are suing him right and left, which have blocked a lot of what he’s tried. When they get more of a grip they’ll start to fight.

 

They are years behind, the American pointed out. The right organized. They funded their institutes. They wrote a plan. They published the plan. The plan told everybody what they were going to do.  He got inaugurated and they are doing the plan.  The response of the Democrats is to let him do it.  

 

The lawsuits are working, I said. I noticed the other two seeing me flail.  Everything Trump is doing is either illegal or implemented illegally.  There’s a lot of resistance.

 

Yes, and so? She replied. Trump’s army of lackeys will appeal to the Supreme Court and the Supreme Court will give Trump whatever he wants. End of story.

 

He doesn’t control all the judges, or the lawyers.  Federal workers are protesting.  There’s a lot of resistance out there and it’s starting to build, I exclaimed.  You’re not being sufficiently dialectical! We laughed at that.

 

I was getting a bit upset, not because my friend was wrong to prject total defeat for the Trump opposition but because my confidence in the opposition rang hollow in my own ears. 

 

I was expressing a confidence in the fighting will of the professional managerial class (PMC)—experts like judges and university managers—for which I knew perfectly well there is no historical evidence.  In my youth I had written a whole book about the cultural genesis of their submissive individualism.  

 

And there I was saying well, the existing PMC will take despotism lying down but the emerging PMC will fight! I was saying, to restate Bertolt Brecht’s line, “Would it not be simpler if the people dissolved the PMC and elected another?”   

 

Time to take a quick trip to the loo, where I saw that Michael Meranze had sent me the Wall Street Journalstory about Columbia’s capitulation.  Back downstairs, I said, Ok, just to prove your point, and read them the headline.  No laughter this time, just reckless eyeballing that said, of course. 

 

This is another one of those “shocked but not surprised” moments because it is a self-destructive capitulation that will encourage further Trumpian attacks on the sector while voiding academia’s rallying principles.  It follows a formula for academic mismanagement:

 

1. An outside power threatens a university with financial or legal pain and punishment. This can be a state legislature, a set of wealthy donors, a private-sector lobby, the federal government, an extramural funder, etc.

 

2. The threat has legal or financial flaws that potentially weaken its prospects, and professional experts and/or activists expose them.  Seeing the flaws requires practice experience and also generally the professional expertise of lawyers, international relations specialists, economists, critical race theorists, and the like. Not coincidentally, such people are found on university faculties, and thus some faculty members of the threatened university bring their scholarship to bear.  In effect, the professional half of the PMC offers knowledge-based authority to the managerial half. 

 

In this case, a group of Columbia law faculty devastated Trump’s procedure in relation to Title VI requirements.  A national group of legal experts did the same.  And an M joined the P in PMC: Princeton’s president, Christopher Eisgruber, approached the very threshold of calling for collective university solidary in confronting the Trump administration’s attacks: “Universities and their leaders should speak up and litigate forcefully to protect their rights.”  

 

Also, the journalists Matthew Haag and Katherine Rosman detached the original $400 million figure from any basis in federal funding (opaquely related to the $988,670,000 that Columbia received in federal funds in FY 2023, Table 22). In the early 1990s, when Trump was facing bankruptcy, he tried to get Columbia to buy his former freight-yards property on the Upper West Side. He kept moving his asking price, and finally put it at … $400 million.  Columbia’s commercial property consultants told them its market value was $65-$90 million, meaning Trump was asking 5 times market. When Columbia tried to appease Trump by saying they’d pay the top of that range or $90 million, Trump stormed out of the meeting five minutes after it began. The sale never happened, but Trump seems not to have forgotten his price.

 

Similarly, student newspapers have been calling for their administrators to do meaningful battle against Trumpian repression. Obedience won’t save Columbia or any other university, the Harvard Crimson observed. The Daily Princetonian summarized the attacks on universities, scholars, and peaceful protesters before praising Eisbruber’s statement and then demanding that he walk the talk.)

 

3. The professorial knowledge appears as a power that creates a will to act against the threat. It inspires expectation—among faculty, staff, students, and parts of the public, including some journalists reporting on the situation and politicians looking on. The expectation is that this time senior management will stand up against the threat. They will refuse the blackmail, take Trump’s agencies to court, and organize other university administrators into a united front.

 

4. The senior managers ignore the professional expertise and submit to the threat. The opposition is defeated from within, by its institutional superiors. This degrades the conditions of opposition to all phony, predatory threats and the cycle promises to repeat. 

 

There are many infuriating aspects of this decision. They start with a total lack of common sense about dealing with bullies that any ten-year-old schoolkid could explain.  At the New York Times, Troy Closson reports, 

'It was not immediately clear whether the university’s actions would be sufficient to reclaim the $400 million in federal money. A spokeswoman for the Education Department, one of three federal agencies named in the letter, did not immediately respond on Friday to a request for comment, including to questions about the potential restoration of federal funding. . . . The Trump administration has told the university that meeting its demands was “a precondition for formal negotiations” over a continued financial relationship and that the White House may call for other “immediate and long-term structural reforms.”

You owe the bully obedience; the bully owes you nothing.'

 

Infuriating aspects continue with the gall of presidents to submit in the name of the very people who opposed submission and gave valid reasons for their opposition.

 

 As in most such cases, the surrender by the university managers brings bad concrete outcomes. In this case, it’s adherence to a wrong, repressive definition of antisemitism, more policing, intervention in admissions procedures, and a government-dictated supervision of a racialized academic department.  The Columbia administration has accepted the Trumpian premise that ethnic-type studies need if not total elimination then a firm hand as a permanent assembly of little brown brothers. This is an insult to higher education in general. 

 

Just as bad, the surrender converts the threat’s lie to truth.  The Columbia letter defines the campus that in reality most criminalized its anti-war movement and most militarized its response as indeed the hotbed of “Discrimination, Harassment, and Antisemitism” that the Trump regime falsely said it was.  

 

I’ve often criticized the petty versions of this. The annual thanks that University of California presidents give the governor for substandard funding have played a key role in suppressing opposition to cuts and impoverishing California’s public universities.  Columbia’s administration has now solidified the false premises of Trump’s campaign for authoritarian control over political speech and academic freedom. The next victims, the University of Pennsylvania and the others on Trump’s hit list, will have a much harder time establishing the public basis of their refusal.

 

What an unforced disaster.  I continue to believe in the potential power of the P in PMC. The professional critiques were superb and empowering.  However, I spent two decades trying to form P-M alliances via UC’s Academic Senate, and the power gulf kept getting wider and the M-accountability weaker.  

 

The P has lost an undeclared civil war to the Ms and are going to have to claw power back from them. Trumpism is an opportunity to do this. Professionals, including professors, can discover that power only by fighting not just Trumpian tyranny but its lesser forms embodied in academic managerialism. A vote of no confidence by the Columbia faculty would be start. But it will need to continue with a gradual but extensive development of professional self-determination via new forms of self-governance in academic units, and co-governance of the finance of the institution itself as a determinant of the existence of academic freedom.  It will require levels of confrontation of an intensity normally found, in the U.S., only in civil rights movements. 

 

Columbia’s Folly will inspire a new era!  There I go again.  Yes, well, it's up to us.

 

Syracuse University on March 31, 2016

THE WAY OF THE DOOFUS WARRIOR (THAT MUST BE DEFEATED)

'Yesterday we looked at how a doofus and blowhard, awash in derp, can nonetheless have a tactical genius that allows him to defeat all enemies again and again. I focused on an analogy I’m familiar with: increased mobility as a key to victory for Northern Civil War generals. But something funny happened in response to this post. ... A number of readers wrote in and said they agreed with the Sherman analogy but that a much tighter conceptual framework comes from a highly influential American military theorist who died almost 20 years ago, Colonel John Richard Boyd.

 

'Boyd is known for something called OODA loops. We’ll get to the specifics in a second. But he argued that all military action is defined by patterns of getting information, deciding how to act on it and then acting. Whoever completes those loops faster dominates and wins. The same also applies if you can get inside the other player’s decision loop and disrupt them.

...

'[Reader 1 wrote]: "Boyd’s concept of the OODA Loop (Observe-Orient-Decide-Act) suggests that whoever controls the tempo controls the fight. In the case of active conflict, like a political campaign, if you can get through OODA loops faster than your opponent, you can change the context in ways that make their responses to your prior moves irrelevant and ineffective.

 [Reader 2 wrote]]: "Your description of Trump’s behavior, and my own shared observation of it, suggests that he is doing this deliberately."

 

"'Trump does seem to have realized that, paradoxically, the 24 hour news cycle and the “Internet Time” phenomena that demands instant responses to other candidate’s statements and acts, has paradoxically led to the accretion of ever greater layers of buffering and vetting to prevent a candidate from losing a news cycle, or several news cycles, to a gaffe that have both created an absolute minimum response time that can be exploited by dispensing with those protections and attenuated the effectiveness of the response when it comes because the fear of the gaffe exceeds the desire to exploit the opportunity. The result is exactly the kind of Luntzified keyword marble-mouthed double talking zinger durp that people (on both sides) have come to loathe. What Trump has realized is that he can get inside the other candidates’ OODA loops by just working without a net and firing off one tweet and one unfiltered message after another so that the other guys are responding to what he said three tweet cycles ago. But perhaps more importantly, he’s realized he can get away with what the other campaigns would deem disasterous “gaffes” by getting inside the press corps’ OODA loop, which he does by firing gaffe after gaffe after gaffe in n such machine-gun like rapid succession that the MSM never has a chance to focus on one and turn it into something like, say Romney’s “49%” or Obama’s “bitter clingers” gaffes (square quote omitted) because by the time they report it, he’s already belted out a half dozen more on that topic and fired off three other salvos on three other topics.''"

[Understanding this can help opponents keep Trump from running circles around them.]

 

SOURCE: Josh Marshall, Talking Points (August 28, 2015). 

 

GEORGETOWN LAW DEAN WILLIAM M. TREANOR TO INTERIM US ATTORNY EDWARD R. MARTIN, JR.

 

'Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum and classroom teaching, asks whether diversity, equity, and inclusion is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

 

'This is a bedrock principle of constitutional law – recognized not only by the courts, but

by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from “exercising control over the content of school curricula.” Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve of our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.

 

'Georgetown Law has one of the preeminent faculties in the country, fostering groundbreaking scholarship, educating students in a wide variety of perspectives, and thriving on the robust exchange of ideas. Georgetown Law faculty have educated world leaders, members of Congress, and Justice Department officials, from diverse backgrounds and perspectives. We pride ourselves on providing an excellent graduate and professional education, built upon the Catholic and Jesuit tradition. Georgetown-educated attorneys have, for decades, served this country capably and selflessly in offices such as yours, and we have confidence that tradition will continue. We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.'

 

SOURCE:  Pdf link to Treanor letter

 

NATION'S LARGEST TEACHERS' UNION SUES EDUCATION DEPARTMENT OVER DEI THREATS

 

'The nation’s largest teachers’ union is asking a federal court to halt the U.S. Department of Education’s enforcement of a directive that threatens to pull federal funding from schools that have race-based programming, arguing that it violates constitutional rights and laws that prohibit the federal government from interfering with curricula.

 

'The lawsuit, which the NEA filed along with its New Hampshire affiliate and the American Civil Liberties Union on Wednesday in federal court in New Hampshire, is the second to challenge the department’s Feb. 14 directive that came in the form of a “dear colleague” letter to school and college leaders. 

'The American Federation of Teachers and the American Sociological Association sued the department over the letter on Feb. 25, similarly arguing that the memo infringes upon the Constitution’s First and Fifth amendments.

 

'“The letter is really intended to chill educators in this broad way, and it’s just not acceptable,” said Sarah Hinger, deputy director of the ACLU’s racial justice program.

 

'In addition to challenging the dear colleague letter and a follow-up “frequently asked questions” document to clarify it, the lawsuit asks a judge to find that the Education Department’s recently launched “End DEI” portal to be unlawful. The portal asks member of the public to submit reports of DEI in schools, similar to tip lines that states have set up to solicit reports of critical race theory being taught.

…

'The letter has caused confusion. Legal experts are arguing that it can’t undo existing civil rights laws, but they worry educators may comply anyway to avoid investigations from the department. The follow-up, nine-page, FAQ document seeking to further explain its limitations did not dispel concerns over its alleged constitutional infringements, according to the lawsuit from the teachers’ union and the ACLU.

 

'Instead, the letter, along with the FAQs and the “End DEI” portal, “radically resets … longstanding positions on civil rights laws that guarantee equality and inclusion,” and presumes districts are acting unlawfully, the complaint says.'

SOURCE: Brooke Schultz, Ed Week (March 5, 2025)

 

MESA BOARD STATEMENT ON THE REPRESSION OF ACADEMIC FREEDOM IN THE UNITED STATES

 

'First and foremost, the MESA Board of Directors demands that the government immediately end its repressive campaign against American colleges and universities. We call on all branches of the federal government as well as elected officials and civil servants working at all levels to reject this brazen undermining of fundamental protections enshrined in the Constitution, including due process.

 

'The MESA Board of Directors also calls on lawmakers to recognize the threat these policies represent to higher education in general, and to the specific campuses based in their constituencies in particular. Lawmakers have a critical role to play in ensuring transparency, accountability, and the constitutionality of any and all policies.

 

'The MESA Board of Directors urges university and college administrations to affirmatively defend the autonomy of higher education and the rights of all members of their campus to engage in lawful, First Amendment-protected activity. We also call on university and college administrators to protect and support vulnerable members of our campus communities. Leaders in higher education must recognize that voluntary cooperation — beyond what is legally compulsory — with repressive efforts targeting individual members of our campuses or those abrogating the autonomy of higher education will compromise the safety of campus communities and render all universities more vulnerable to governmental overreach and censorship. Anticipatory obedience is neither a defense against repression nor a viable strategy to avert risk. Rather, it is an invitation to greater repression that endangers students, faculty, and staff, and compromises the integrity of institutions of higher education in a democratic society.

 

'Lastly, we recognize that all of these events, and the climate of fear they have produced, are deeply traumatic to our members. The MESA Board of Directors is determined to face this new threat level and act as a resource in solidarity with our membership in defense of freedom of speech, academic freedom, and institutional autonomy. We will support our members in their efforts to mobilize their own campus communities.'

 

SOURCE: MESA Board Statement on the repression of academic freedom in the United States

 

 

COLUMBIA UNIVERSITY: A TITLE VI DEMAND LETTER THAT ITSELF VIOLATES TITLE VI (AND THE CONSTITUTION)

 

By Kate Andrias, Jessica Bulman-Pozen, Jamal Greene, Olatunde Johnson, Jeremy Kessler, Gillian Metzger, and David Pozen

 

'On Thursday, the president of Columbia University received a remarkable letter from the General Services Administration, the Department of Health and Human Services, and the Department of Education. The letter states that the university must meet numerous requirements by March 20, 2025, “as a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.” These requirements include changes to student disciplinary policies and procedures; changes to rules on university governance, campus security, and campus life; placing the Middle Eastern, South Asian, and African Studies department “under academic receivership”; and “comprehensive” reform of admissions to various schools within the university.

As scholars of constitutional law, administrative law, and antidiscrimination law who teach at Columbia, we feel compelled to point out some of the most glaring legal problems with this letter. 

• Title VI Standards. As the basis for the funding cutoff, the letter cites the university’s failure to protect students and faculty from “antisemitic violence and harassment in addition to other alleged violations of Title VI and Title VII of the Civil Rights Act of 1964.” The letter offers no explanation of the alleged violations, no mention of a completed investigation, and no account of how Columbia has been deliberately indifferent to ongoing antisemitic discrimination or harassment on its campus—perhaps because any such account would be implausible at this time. There is therefore no apparent statutory basis for a funding cutoff.
• Title VI Procedures. Prior to a funding cutoff, Title VI requires “an express finding on the record, after opportunity for hearing,” of any failure to comply with the statute, as well as “a full written report” submitted to House and Senate committees at least 30 days before the cutoff takes effect. In defiance of these requirements (among others), the agencies are purporting to immediately freeze federal funds and to impose preconditions that the university must satisfy in advance of “negotiations.” The statute does not allow this approach.
• Title VI Remedies. Even if proper notice had been given, a hearing had occurred, and a statutory violation had been found, Title VI does not permit blanket funding removals. Rather, it requires that any removal be “limited in its effect to the particular program, or part thereof, in which noncompliance has been so found.” There has been no allegation—much less a finding—of noncompliance in the many parts of Columbia from which funding has been cut, including from urgent medical and scientific research. Moreover, any permissible remedy would have to be tailored to addressing unlawful discrimination. The agencies’ demands exhibit no such tailoring and, on the contrary, effectively tell Columbia to rewrite its policies on free speech, student discipline, public safety, undergraduate admissions, and more. Indeed, the remedies demanded in the letter not only far exceed the power of the agencies under Title VI; they also raise serious constitutional concerns.
• Academic Freedom and the First Amendment. The federal government enjoys broad discretion to provide funds to private institutions, including universities. The Supreme Court has made clear, however, that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech even if he has no entitlement to that benefit.” Simply put, funding conditions may not impose unconstitutional burdens on First Amendment rights. Many of the agencies’ demands risk compromising academic freedom, which the Supreme Court has recognized as “a special concern of the First Amendment.” The Court has emphasized the importance of academic freedom at universities in particular, stating that “[t]he essentiality of freedom in the community of American universities is almost self-evident.” In light of these core First Amendment principles, Title VI has never been understood to allow agencies to insist that a university restructure academic departments or abolish internal governance bodies, for example, as a condition of receiving federal funds.
• Unconstitutional Vagueness. The Supreme Court has further emphasized that “[b]road prophylactic rules in the area of free expression are suspect” and that “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” Yet for several of the agencies’ demands implicating freedom of expression, it is unclear what the university must do to comply. For example, the letter offers no details as to what “federal law” or “policy” the university’s admissions practices contravene, and it offers no guidance as to why the university’s existing “time, place, and manner” rules are inadequate. The vagueness of the agencies’ demands compounds the threat to academic freedom and rule by law.
• Due Process. A withdrawal of federal funding without adequate procedural safeguards likely violates the Due Process Clause of the Fifth Amendment as well as Title VI. The Supreme Court has stated that, in determining what constitutes adequate process, this clause requires an assessment of “the private interest that will be affected by the official action”; “the risk of an erroneous deprivation of such interest through the procedures used”; “the probable value, if any, of additional or substitute procedural safeguards”; and “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” The fact that Congress established the statutory procedures described above speaks to its own assessment of these factors. In any event, immediate withdrawal of funds without reference to a completed investigation—and in the absence of an opportunity for an administrative hearing or voluntary compliance with legitimate Title VI requirements—is not consistent with the Fifth Amendment.

'This is a preliminary analysis. We do not mean to suggest that it is an exhaustive list of problems with the demand letter, nor do we mean to elevate our concerns about this matter over concerns about other recent actions taken by the executive branch. We focus on the legal infirmities of the letter’s Title-VI-related demands because they have received relatively little attention to date. While we are in no position to dictate the university’s response, we hope that this analysis helps show how these demands threaten not only Columbia’s funding for critical academic research but also fundamental legal principles and the mission of colleges and universities across the country.'

 

SOURCE: David Pozen, Balkinization March 15, 2025

 

 

FACULTY REPONSE TO UNIVERSITY OF CALIFORNIA NO LONGER REQUIRING DIVERSITY STATEMENTS FROM JOB APPLICANTS

 

'President Drake’s announcement is a slap in the face to all of the faculty, students, and staff who have dedicated themselves to making the UC an inclusive and diverse community. Getting rid of diversity statements and freezing jobs is not “adjusting” to new circumstances, it is willfully complying with Trump’s racist and xenophobic assaults on higher education. These concessions will not protect the UC from Trump’s wrath, just as it didn’t protect Columbia nor any of the other institutions who have fallen in the crosshairs of the administration’s dismantlement of the country’s democratic institutions.

 

'Drake’s statements will only lead to more fierce attacks on faculty rights—attacks that have not just been coming from Trump, but from the UC Regents and the Office of the President. At least two UC Regents have stated on record that they want unilateral power over UC hiring decisions (largely in response to the outbreak of protests this past year) and have claimed that “shared governance is not working,” without any evidence to substantiate their accusations. Not only are the Regents actively pursuing a hostile restructuring of the UC system based on their own economic interests, their seeming jubilation over the opportunity to exploit Trump’s attacks on climate change, medical research, as well as data-driven intellectual and scientific inquiry signifies that UC leaders are more compelled by greed than by the needs of California residents. 

 

'On hiring freeze:

'The hiring freeze is far less a product of recent attacks by the federal government, than one facet  of a longer process to erode faculty’s civil rights and academic freedom. The UC leaderships’ use of students tuition as a piggy bank for capital investment rather than improving their learning spaces and our working spaces is a mockery to what the UC stands for and means to California residents. 

 

'UC capacity to fight back (and response to Steven Cheung (head of Academic Senate this year) who pretty much conceded to Drake too:

 

'I disagree with my colleague and Academic Senate chair that the UC is not powerful enough to fight back against these attacks. The UC is a pillar of the U.S. higher education system and a crucial line for social and economic mobility for a huge swatch of the state of California. In Fall 2023, the UC’s undergraduate admissions was composed of nearly 200,000 students, 83% of whom were California residents. Conceding to an autocratic leader has never advanced a society’s democratic principles. What we need to see are not concessions to a president that was fundamentally rejected by Californians, but we also need leadership that address the understand these attacks as an existential to democratic institutions and those who commit their lives to making the UCs a world class institution for higher education. 

 

'What we, as faculty students and workers, are demanding is the UC leadership to have a backbone and refuse to comply with the Trump administration’s violations of our academic freedom, civil rights, and constitutional protections of our first and fourth amendment rights. We are ready to do whatever it takes to defend our democratic institutions. What we need now is for UC leadership to take the same risks we’ve seen thousands of students, faculty, staff, and workers around the country make in response to Trump’s assault on higher ed.'

 

SOURCE: CUCFA list

 

 

A MESSAGE TO MY COLLEAGUES AT ELITE UNIVERSITIES: YOU MUST CHOOSE, STOCKWELLISM OR SOLIDARITY

 

'It’s amazing to me—though it shouldn’t be—that at a moment when anyone and everyone who teaches or works or studies at an educational institution is under threat, that a professor at Columbia would formulate the threat in the New York Times in this particular way:

 

'“Ultimately, the university cannot exist without research,” said Brent R. Stockwell, the chair of biological sciences at Columbia. “It would be really, really more akin to a high school or a local community college where you’re just teaching some classes without world-class researchers bringing the frontier of knowledge into the classroom.”'

 

'I don’t doubt that Stockwell sees his lifeworld in this way and that it would in fact be threatened in the way he says it will be. Without the millions and millions in federal funding that he and his colleagues luxuriate in, he would be sent plummeting into that netherworld, where high school and community college instructors reside, of “just teaching some classes”—and where, of course, many, many instructors at Columbia University also reside.

'I’m not going to knock this knucklehead for seeing his lifeworld as it is, and stating it so forthrightly to the New York Times.

'I am going to knock him for his utter lack of political sense:  

• not simply his full-frontal embrace of elitism and privilege, in the nation’s most important newspaper; 
• not simply his full-frontal embrace of elitism and privilege as a way, it seems, of trying to explain why the rest of us, inside or outside of academia, should care about protecting his elitism and privilege; 

'But also his utter failure to see that, whatever his path to glory and ascent has been in these past two decades, the only way forward, for him and his colleagues, in the coming months and years will be: 

•  to start seeing all of academe as a workplace;
•  to start seeing all of his fellow creatures in academe as co-workers, as sources of solidarity;
• and to start seeing all of the activities that go on in “just some classes” and offices and hallways and heating plants and cafeterias and so on, as not just real work with equal value to the work he does in his laboratory, but as real power.' 

SOURCE: Corey Robin, blog (March 20, 2025)