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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

David M. Rabban: This is probably the greatest threat to academic freedom in the history of our country.

Nico Perrino: Even greater than the McCarthy era?

David M. Rabban: I think so, because it’s broader.

Erwin Chemerinsky: Oh, I completely agree with that. My hope is that they’re going to fight the government.

David M. Rabban: At the risk of losing the money.

Erwin Chemerinsky: There is a risk of losing the money, but the alternative is to give up your core academic freedom. The reality is capitulating to a bully only makes things worse.

Nico Perrino: Welcome back to “So to Speak: The Free Speech Podcast,” where every other week, we take an uncensored look at the world of free expression through the law, philosophy and stories that define your right to free speech. By now, I’m sure you’ve heard about the Trump administration’s effort to freeze the federal funding of a number of universities, including 400 million at Columbia, and 2.2 billion at Harvard. Additionally, at Harvard, the administration is reportedly looking to take away its tax exempt status, and possibly $1 billion in funding for health research.

Yesterday, Harvard sued to reverse the funding freeze, arguing that, “The freeze was unlawful, both statutorily and constitutionally.” Now, the justification for the administration’s actions against the universities are mixed. For example, in one letter to Harvard, the administration writes that the school failed to live up to both the intellectual and civil rights conditions that justify federal investment. Meanwhile, on True Social, President Trump said, “The school is a joke that teaches hate and stupidity, and is unworthy of federal funding.”

Our guests today are two professors, who signed onto a statement by a group of 18 law professors, who opposed the administration’s funding threats at Columbia on free speech and academic freedom grounds. At the time of their statement, Columbia, of course, was the most prominent university being targeted. And since then, Northwestern, Cornell, Princeton and Harvard have also had their funding revoked or suspended, and nearly 60 other colleges and universities are under investigation, with their funding hanging in the balance, allegedly for violations of civil rights’ law.

Our guests today are David Rabban. David is a distinguished teaching professor at the University of Texas, at Austin School of Law. And his most recent book is “Academic Freedom: From Professional Norm to First Amendment Right,” which was published last year. Professor Rabban, welcome to the show.

David M. Rabban: Thank you for having me.

Nico Perrino: Also joining us is Erwin Chemerinsky, who is the distinguished professor of law at the University of California, Berkeley Law School, as well as the school’s dean. His most recent book is “Worse Than Nothing: The Dangerous Fallacy of Originalism.” Erwin, welcome on to the show.

Erwin Chemerinsky: Delighted to be with you.

Nico Perrino: So, we, at ��֭����, have been doing a lot of messaging around the government’s demands at Columbia, at Harvard, at a number of these other schools. And the resounding response that we get is: “It’s the government’s money, so it’s the government’s rules.” Erwin, maybe I’ll start with you. What is wrong with that premise?

Erwin Chemerinsky: It’s wrong as a matter of law, and wrong as a matter of the Constitution. To start with the law, there’s procedures that have to be gone through before cutting off funds. There’s the notice, and hearing, and finding of facts a violation of federal law. There’s to be 30 days’ notice to both houses of Congress if money is cut off under Title VI. None of this has been followed. Also, there are substantive standards. You can only find that a campus has violated Title VI, with the notice of rights violations, if it was deliberately indifferent. There have been no such findings.

Funds can only be cut off for the parts of the program that were deemed to violate federal law. Here, the money has been cut off indiscriminately. All of this is a violation of federal law. Beyond that, it’s a violation of the First Amendment. What’s going on here is punishing universities for speech that they allowed under the First Amendment, to punish them for not restricting speech has constitutional consequences. And, finally, in terms of, “It’s the government’s money, the government could do what it wants,” actually, it’s Congress that can set conditions for federal funds. And the Congress hasn’t set conditions here. It’s the administration on its own. I think that this is all just a pretext on the part of the Trump administration to try to exercise more control over universities.

Nico Perrino: Professor Rabban, do you see it the same way?

David M. Rabban: I do. I would add that in the first Supreme Court decision that recognized academic freedom as a First Amendment right, that was Sweezy v. New Hampshire in 1957, the court emphasized the importance of protecting the academic life of universities from intrusion by the government. That’s the key theme. It’s the foundation for the first amendment right of academic freedom.

Nico Perrino: Yeah, well, the argument on the other side is going to be that there was unlawful discriminatory harassment against primarily Jewish students, which violates Title VI of the Civil Rights Act, things like building occupations encampments, for example, which critics argue is unlawful. It doesn’t constitute protected speech. But you have First Amendment rights advocates, free speech advocates coming in and say, “No, what they’re doing to Harvard, what they’re doing to Columbia, violates free speech principles. These are private universities, not bound by the First Amendment, but as institutions, they do have first amendment rights.” Where does that argument go wrong?

Erwin Chemerinsky: Let me say two things. First, Title VI of the 1964 Civil Rights Act says, “Recipients of federal funds can’t discriminate on the basis of race.” It’s tried to include ethnicity. And it says that, “If there’s a hostile environment, the school cannot be ‘deliberately indifferent to it.’” Schools are not held responsible for all the speech that goes on on campus. It’s unrealistic. The standard is deliberately indifferent. Now, of course, there’s been no findings of fact that Columbia or Harvard, any of these universities, were deliberately different.

Also, I think realistically, if you look at what Columbia did, it’s hard to say they were deliberately indifferent. So, I think under Title VI, you’ve got, as I said, not following proper procedures, not meeting the legal standard, cutting off funds from parts of the university that had nothing to do with any of this, like the medical school. But then, you get to the Constitution. It’s true, of course, that the First Amendment doesn’t apply to Columbia, but the government can’t punish Columbia for its speech or the speech that it allows, for the government to punish Colombia does implicate the First Amendment.

David M. Rabban: So, I would say that government interference, in the courses the university can offer, the people the university can hire, has nothing to do with protecting against antisemitism. So, totally apart from the Title IV problems that Erwin mentioned. I just want to say one other thing.

Nico Perrino: Yeah, sure.

David M. Rabban: Maybe, Erwin, I’m not sure if this is a correction or modification of what you said. It’s true that the First Amendment only applies to state action, and that Columbia is a private university. So, the First Amendment does not apply to the interaction between Columbia University, and its own professors and student body. But if the government acts against a private university, that violates the private university’s First Amendment right to academic freedom, which the courts have frequently recognized.

So, I just want to emphasize, the First Amendment applies to private universities, as well as public universities, when it’s a question of the state interfering with the educational life of the university.

Nico Perrino: And how has the state done that in the case of Columbia and Harvard? I know it demanded, essentially, that the Middle East Studies Department at Columbia be put under academic receivership.

David M. Rabban: Well, that’s a good example. That’s a good example.

Nico Perrino: Well, and at Harvard, you have this demand that it implement this viewpoint diversity requirement, how that would be implemented, what viewpoint diversity means, subject to all these various audits from the government. That would, I assume, implicate the First Amendment. Erwin, it looks like you want to get in.

Erwin Chemerinsky: Of course, it would. It’s for exactly the reasons that David said. This is the federal government trying to control the speech on campus. If you look at the letter that was sent to Harvard University, it says, among other things, “There’s going to be oversight of faculty hiring, student admissions, governance, that they’re going to make sure that there’s viewpoint diversity.” That’s the federal government regulating speech on campus. And as David points out, none of this has anything to do with remedying the alleged violation of Title IV, but all of this, that we’re talking about now, would infringe the First Amendment if mandated by the federal government.

David M. Rabban: Justice Frankfurter, and his very influential concurrence in this Sweezey case, the first case in which the Supreme Court recognized academic freedom as a First Amendment right, emphasized what he called the “four areas of academic freedom of a university,” protected by the First Amendment: “who shall teach, what shall be taught, how it shall be taught, and who shall be admitted to study.” And the threats from the government to Columbia, to Harvard, to other schools, interfere with those rights protected by the First Amendment and academic freedom.

Nico Perrino: So, how should the federal government have gone about the situations at Columbia and Harvard, if it did want to investigate Title VI violations. I assume it's to do all the things that you listed out earlier, Erwin. But then let’s say it has these findings of facts. It finds that noncompliance existed. What changes could it make at these universities, consistent with nonconstitutional and statutory requirements?

Erwin Chemerinsky: But before you get there, I want to emphasize the words you said, “If they wanted to investigate.” It’s not that they investigated. It’s that they imposed punishments without notice, without a hearing, without findings of fact, without notice to Congress, without a conclusion of deliberate indifference, and not limiting the remedy to the part of the program that discriminated. Now, obviously, if there was a part of Columbia University, or any university, that was violating Title VI, there could be remedial action taken.

The idea would be to come up with a program for remediation that didn’t involve cut off of funds. Cut off the funds rarely has happened, and only as a last resort. Instead, what the Trump administration has done is as a first resort, and with Columbia, in making demands to Harvard that no university possibly could agree to.

Nico Perrino: And David, what do you think the university or the administration could demand of these universities, if it found they were out of compliance with Title IV.

David M. Rabban: Well, they would have to stop what they’re doing that’s out of compliance with Title VI, but that doesn’t have any –

Nico Perrino: Could they, for example, demand that these universities implement mask bans, for example? It’s one of the things that was in the demand letter to Harvard and to Columbia. The idea being that some of the unlawful occupations, some of the encampments, were facilitated by the anonymity of those partaking in them. Could it, for example, force these colleges and universities to adopt the International Holocaust Remembrance Alliance’s definition of antisemitism, which the federal government has been forced to adopt, through a Trump administration executive order, which lumps within the definition of antisemitism, some forms of anti-Zionism.

These are things that you see the Trump Administration wanting on these college campuses, requiring of these colleges in order to remain consistent with Title VI, but that have made free speech advocates and First Amendment advocates a bit queasy.

David M. Rabban: Well, I think the definition of anti-Zionism, as antisemitism, itself raises First Amendment problems, that that definition violates First Amendment protection for speech on matters of public concern. What I want to emphasize most is your questions, as to remedies under Title IV, I would say, have nothing to do whatsoever about the university’s regulation of its own education. Decisions about who teaches, what shall be taught, who gets tenure, those are decisions for universities, not for the federal government. And for the federal government to intrude in those decisions violates the First Amendment. Section Title VI is a separate issue.

Erwin Chemerinsky: I completely agree with David. An answer to two things that you raised. First, in terms of masks, it’s unclear right now whether or not a public university can prohibit masks, or whether the government can require a private university to do so. The Supreme Court has said there is a First Amendment right to speak anonymously, and arguably, wearing masks is that. But there are some lower court cases that have upheld prohibitions and masks in the context of anti-clan statutes. The Supreme Court hasn’t dealt with it.

And we can certainly talk about from a First Amendment perspective, could a public university prohibit masks? Could the government require it? In terms of the IHRA definition, I want to agree with something David said, parts of that definition are enormously troubling from a First Amendment perspective. So, for example, part of that says, “To hold Israel to a double standard or a higher standard with regard to human rights is deemed antisemitic.”

I strongly disagree. I don’t believe saying that the United States should meet the highest standards with regard to human rights is anti-American. I don’t believe saying I want Israel to meet the highest standard of human rights is antisemitic. And yet, that’s part of the definition. And my point here, which David said, is how much the definition, then, is about restricting speech.

David M. Rabban: I think the administration is using this issue of antisemitism, really, as a pretext to interfere in the most fundamental ways with the educational work of universities.

Nico Perrino: Let me ask this. Is there a way in which you can get that definition of antisemitism on campus through just this kind of subtle coercion? So, for example, Columbia has already adopted a definition of antisemitism that’s more or less consistent with the IHRA definition. Harvard has also adopted the IHRA definition of antisemitism, and in its lawsuits, celebrates that it’s adopted this definition of antisemitism. And says that very few other colleges have adopted us. Look at this, federal government, we are really trying to combat antisemitism on campus.

And I have a hard time believing that Columbia and Harvard would have done this independently, were it not for this government pressure, were it not for the federal government adopting the definition, and saying, “Hey, you, 60 colleges and universities, we’re coming after you. So, get your act in order.”

Erwin Chemerinsky: Not quite factually, Harvard did. So, there was a lawsuit against Harvard in the federal district court, and there’s a lawsuit for a Title VI violation.

Nico Perrino: Yeah, the Kestenbaum lawsuit. Yeah. But I think they settled that, in part because they were worried about the federal government.

Erwin Chemerinsky: I don’t know.

Nico Perrino: That’s speculation on my part.

Erwin Chemerinsky: The district court denied Harvard’s motion to dismiss around August of 2024. And Harvard settled that suit, and Harvard adopted the IHRA definition of antisemitism as part of that settlement. So, that’s just factually what happened, whether they did that because of the Trump administration, I can’t guess as to their motives.

David M. Rabban: Also, private universities, like Harvard and Columbia, have more discretion in determining their own rules about whether antisemitism includes anti-Zionism, than a public university does.

Nico Perrino: Yeah, and I want to ask about the rules, because part of the demand letters to Columbia and Harvard is also that they restructure their governance. So, for example, they want Harvard to reform its student disciplinary processes and procedures. They want investigations of certain faculty in certain departments. They want to bring the disciplinary processes all under one roof. I think in the case of Columbia, the president would have ultimate authority, as opposed to a shared governance between students and faculty members. Does that implicate constitutional concerns? Erwin, I see you nodding your head “yes.”

Erwin Chemerinsky: Of course, it does. David so well summarized, from Sweezy, all of the areas that our universities control as part of academic freedom. Many of the things that you just enumerated, would go directly towards that, and give federal oversight, and maybe federal control. That’s fundamentally at odds with academic freedom in the First Amendment.

David M. Rabban: Even if there were a violation of Title VI, the remedy cannot be violation of constitutional rights to free speech and academic freedom. I mean, it’s constitution law 101, but it’s important to reiterate.

Nico Perrino: Columbia kind of acceded to the government’s demands. But then, it sounded like the president of the university, in private conversations within the university community, was walking back their commitment to the government demands, or saying that the commitment to those demands wasn’t what the reporting would suggest it would. And then, she resigned. We have a new president at Columbia, interim president.

But that president has also taken a firm stand, in the wake of Harvard, standing up to the administration, and said, “We’re not going to let the administration come in here and dictate our governance, for example, or violate free speech and academic freedom norms.” And amidst all of this, you have the federal government coming in and saying, “Oh, okay, so, then, we’re going to require a judicial consent decree to ensure that you commit to these demands that we’ve made of you, and that you’ve said you’re willing to meet.” How do you look at that whole situation and dynamic there? It seems like Columbia is a little bit more schizophrenic on these points than Harvard has been.

Erwin Chemerinsky: Well, first, Columbia did say that it was going to agree to a settlement, but then it got none of the $400 million back. And certainly, that might have influenced Columbia’s choice to realize that even if we give in, it’s not leading to the money being returned. Second, I think one step that we’ve omitted, that’s quite important, is Christopher Eisgruber, the president of Princeton University, so strongly coming out, and saying that Princeton isn’t going to exceed, that what was being done by the Trump administration is illegal. Harvard filed its lawsuit yesterday, and the statement from the president of Harvard. My hope is that this is going to then lead to all of the universities being targeted, saying, “This is illegal and unconstitutional. We’re not giving in. We’re fighting back.”

David M. Rabban: And I want to add the president of my own undergraduate University, Wesleyan University, who’s been out front on this from the beginning, and I give him a lot of credit.

Erwin Chemerinsky: Michael Roth.

David M. Rabban: Michael Roth. With respect to Columbia, in my most kind of generous interpretation of what it initially did in its discussions with the government, I thought Columbia was trying to kind of kick the ball down the road a bit without agreeing to anything that would irreparably compromise their academic freedom. It would consider maybe asking someone inside Columbia to look at the Mid-Eastern Studies program. That wasn’t an agreement to change anything or to do anything that would be unconstitutional. So, it wasn’t a heroic act, for sure, but it wasn’t a total cave.

And I think part of what might have changed Columbia’s behavior was that it realized that agreeing with the federal government was not going to work out, and the federal government was changing its conditions day by day. So, I think they felt they tried, and it didn’t work. So, that stiffened them up, as well as what Chris Eisgruber did, and Michael Roth.

Nico Perrino: It seems to be a pretty sloppy approach from the federal government. You saw the “New York Times” reporting last week that the letter to Harvard was sent mistakenly, and then you had a “Wall Street Journal” report that said, “Eh, maybe it wasn’t mistakenly. It was just sent a day early.” So, there is some confusion as to whether the precipitating letter, that led to all these series of events, should have been sent in the first place, but regardless, the administration seems to be doubling and tripling down on this letter. Erwin, you had mentioned that this was unlawful statutorily and constitutionally. I know lawyers don’t like to say something’s an easy lawsuit, or a straightforward lawsuit. But do you see it that way?

Erwin Chemerinsky: I do. And I’ll analogize here to the Trump executive orders against law firms. Three law firms – four law firms now have challenged every district court to rule. This includes judges, who regard as liberal, and judges conservative, who have immediately said, “It’s unlawful.” I expect the same thing will be done in the Harvard suit or the others against the universities. Some of it is the sloppiness of how it’s being done, to use your word. But some of this, clearly, they have not followed the procedures required by law under Title VI. They haven’t met the legal standard. And in terms of the First Amendment, if there’s anything that’s a slam-dunk, it’s what they’re seeking against Harvard violating the First Amendment.

David M. Rabban: I agree with Erwin on the slam-dunk, First Amendment point. And I want to point out that again, in this original Sweezy case, the government, through the New Hampshire attorney general, asked Sweezy questions about the content of his visiting lecture at the University of New Hampshire. “Did you advocate Marxism? Did you advocate the theory of dialectical materialism?” And Sweezy maintained that the First Amendment protected him from having to answer those questions, and the Supreme Court agreed.

That was simply asking about the content, and you can’t do that under the First Amendment. Now, the government wants to dictate the content, which is far more intrusive than simply asking about it. And that’s part of the reason I consider this a slam-dunk. It certainly should be one.

Nico Perrino: Many observers of higher education in recent years have been critical of higher education’s lack of so-called “viewpoint diversity.” And so, when they read the federal government’s letter to Harvard and its demands, that it have more viewpoint diversity in its faculty and student body. They see this as perhaps a necessary, maybe ham-fisted, corrective to a real problem. Do you both see viewpoint diversity in higher education as a real problem?

Erwin Chemerinsky: I strongly favor viewpoint diversity in higher education. I want my law school and my campus to be a place where all ideas and views are expressed. How you get there becomes difficult. You can’t choose to hire a faculty member or not hire a faculty member on the basis of their ideology. Imagine that we’re doing a search, and I’ve got to tell you, usually higher faculty have no idea what their ideology is. But I couldn’t say, “I’m going to favor hiring this person over another person because they’re conservative, and the other person’s views are liberal.” That would violate the First Amendment as a public university.

We can’t, in admitting students, look at their ideology and say, “Oh, we have too many liberal students, so we’re going to take conservative students instead, even though they have lesser credentials.” So, yes, I want there to be ideological diversity, but we can’t use the viewpoint of people in choosing who to hire or not hire, who to admit or not admit.

David M. Rabban: I want to say that I believe there has been a problem with lack of even academic viewpoint diversity on American campuses. I believe it’s probably harder for a conservative to get hired at an American university than for someone who’s not conservative. I don’t believe it’s as much of a problem as many people say, but it is a problem. But the answer to that problem has to be within the university, being alert to the importance of having, I would say, ideological differences over academic matters within academic departments. The answer to the lack of ideological diversity in universities is not government takeover.

Nico Perrino: And that’s more or less what Harvard acknowledges in its lawsuit. It says it wants more viewpoint diversity at the university, but it’s not the government’s responsibility to mandate viewpoint diversity. One question, or I guess, challenge for institutions that do want more viewpoint diversity is, how do you get more viewpoint diversity without also establishing a political or ideological litmus test in your hiring?

Now, in the Harvard letter, it bans litmus tests, but in the same breath, mandates viewpoint diversity, and also says that the school, Harvard should deny admission to international students who are, quote, hostile to the American values and institutions inscribed in the US Constitution and Declaration of Independence. That seems to be a political litmus test. And we all debate all the time. Our national discourse is about what actually are the values of the US Constitution and the Declaration of Independence. But how might one foster viewpoint diversity, independent of federal government demands in a way that doesn’t put political litmus test? Doesn’t say, “I want a conservative, therefore we’re only going to search out for conservatives.” Or is that how it has to be done? Has any academic squared this circle, so to speak?

David M. Rabban: I think some academic institutions, I would say, including my own, have been attentive to diversity within the academic field, within law, in making appointments, which is a good thing, I feel. There are certain academic schools, maybe more associated with political conservatism, and apart from the association with a political ideology, I think it’s good to have some people in law and economics, which may have more conservatives than other fields of law, just as it was good to have some critical legal studies.

It’s good to have academic diversity within a school. And sometimes, that academic diversity lines up with broader political diversity. I think affirmative action for conservatives and for…

Nico Perrino: Libertarians, perhaps.

David M. Rabban: Libertarians, and for just people with different views than the majority, is a good thing. It’s a healthy thing. It ought to be encouraged. It ought to be encouraged by the faculty and by the dean. It shouldn’t be imposed by people from the outside, often whose reason has nothing to do with the belief in diversity, but has to do with their own political ideology.

David M. Rabban: Erwin?

Erwin Chemerinsky: I agree with the goal. I think I disagree with you about the means. I agree that the goal should be a faculty with ideological diversity. I agree in terms of a means, in terms of broadening the fields that you look at. But I would oppose affirmative action for conservatives if it means favoring a conservative or a liberal in hiring, or favoring a liberal over a conservative hiring. I don’t think that we should be looking at ideology at all in making our hiring decisions.

And I’ve got to tell you, that apart from fields where you can tell the ideology from the writing, for most people we hire, say, at the corporate law field, I have no idea whether they’re liberal or conservative. I just recently learned a colleague of mine, who teaches in the business area, is quite politically conservative, but I couldn’t have possibly known that. You’ve got to also take in mind that the part of what makes this difficult, and this is true with regard to student admissions, is self-selection. We ask the students who are applying to Berkeley what area of law they’re most interested in this year.

This year, the students who have applied, we admitted, 55% of them said that the thing they’re most interested in is public interest, law and social justice. Fifteen percent, the next largest, say they’re interested in intellectual property. I think that because of Berkeley’s reputation, there’s a lot of self-selection, even though we pay absolutely no attention to ideology, or race, or sex in the admissions process.

David M. Rabban: I would say, and Erwin, I guess this is where we disagree, if I were at Berkeley and saw that, I would say as a faculty member or as a dean, “Gee, having a diversity of ideological views, including political views, provides for a healthy learning environment.” And just as racial diversity is helpful to a learning environment, as one factor among many.

As Justice Powell said, I think ideological diversity among students, among faculty, promotes education, and therefore it makes sense not to make a decision based on ideology, but to take either academic or even political ideology into account, among a pool of more or less equally-competent people, and use that as one factor among many. I think that’s a good thing for education.

Erwin Chemerinsky: And I totally agree with you about the importance of ideology and the benefit of diversity. But the idea that somebody is going to be hired or not hired because they’re conservative, as opposed to liberal, or somebody gets admitted or not admitted because they’re conservative as opposed to liberal. And the Supreme Court and FIREfor Fair Admission said the problem with the one factor analysis is that in instances, the one factor is going to be decisive. And I’m very uncomfortable having somebody’s ideology determine who we hire or who we admit.

David M. Rabban: I don’t believe in it as one factor. It’s one factor among many, just as race is one factor among many. Erwin, do you agree with affirmative action in student admissions based on race?

Erwin Chemerinsky: Well, of course, the Supreme Court has said it’s impermissible. But yes, I would say that I would favor what the Supreme Court had said previously. And if we’re going to do it for race, I wouldn’t have any problem with doing it with ideology, but…

David M. Rabban: That’s my only point.

Erwin Chemerinsky: I don’t understand, in light of FIREfor Fair Admission, what I’m saying, why we’re going to say we can’t consider that factor of diversity, but ideological diversity is going to be a factor. And I guess the place where either we agree or disagree is I never would want to say, in the end, we’ve hired somebody, or admitted somebody, or not hired somebody, or not admitted them, because of their ideology and views.

David M. Rabban: Even in part. Even in part.

Erwin Chemerinsky: Again, I would like to know what we mean by “in part.” I will stand by…

David M. Rabban: It was a very similar academic background in terms of the quality of their undergraduate major, how they did on their LSAT, etc., but we’re considering who to admit, and at the margins. When it’s a school that doesn’t have diversity, we want to take this into account. I think it’s a good thing. I think, at Wesleyan, for example, I think, and this might have been Michael Roth’s initiative, there were places reserved for people who had military background, not reserve. There was an attempt to recruit them, and there are all kinds of reasons for doing that.

But one of them is they’ve had different life experiences and maybe different ideology, and it’s a good thing for the student body to be exposed to that kind of background, as well as to others. So, I think like looking for people with a military background, or graduates of community colleges, for example, who have a distinctive experience, those are things that the university should take into account.

Erwin Chemerinsky: We agree completely on that.

Nico Perrino: So, it sounds like we agree that we want more viewpoint diversity. How necessarily we get there, there’s some disagreement around the edges. But we’re also all in agreement, then, that the means by which the federal government is trying to effectuate viewpoint diversity at Harvard are unlawful, and probably also misguided. Erwin, you brought up FIREfor Fair Admission. And this is a retort that I’ve heard to Harvard’s case.

Folks say that in that letter that was sent to Harvard by the federal government, it cites the violation of civil rights law. People, online, will say, “Well, didn’t we learn that Harvard was violating civil rights law and FIREfor Fair Admission?” So, how can things that have been found have been unlawful in the past affect, for example, Title VI compliance?

Erwin Chemerinsky: First, what’s important to remember is that what Harvard did was in compliance with the law that existed at the time, Title VI and equal protection. The Supreme Court and FIREfor Fair Admission overruled 45 years of precedent, in overruling, effectively, Grutter v. Bollinger; Fisher v. University of Texas at Austin; Regents of the University of California v. Bakke. So, it’s not fair of Harvard to say, because they were following the law as it was, but the Supreme Court overruled the law, that Harvard had been doing something wrong.

Second, if the concern is Harvard’s admissions process, relative to race, there is a remedy relative to that under Title VI. What the Department of Education was doing in its letter had nothing to do with that. And the remedies the Department of Education was imposing in terms of faculty hiring, student admissions, governance viewpoint, personally, had nothing to do with the issues raised in FIREfor Fair Admission.

Nico Perrino: And you also have to give the university, if I’m not mistaken, an opportunity to correct the noncompliance before removing federal funding. So, let’s say, for example, the investigation found that they were discriminating against Asian students in their admissions processes. The remedy would be for them to stop discriminating against Asians, to perhaps have a voluntary resolution agreement before they moved on to a funding freeze or a funding revocation. Is that correct?

Erwin Chemerinsky: That’s correct. But it’s also important to note that, with regard to this, the district court made findings of fact that Harvard had not discriminated against Asian students. But you’re absolutely right. Before funds can be cut off, there has to be an opportunity to correct.

Nico Perrino: I want to ask if there are parallel or equal concerns surrounding what the Obama and Biden administrations did under Title IX, and what the Trump administration is doing under Title VI. Going back to 2011 the Obama administration sent out a Dear Colleague letter that defined sexual harassment broadly, and that also made certain requirements of colleges and universities, in their disciplinary proceedings, where they are adjudicating alleged sexual misconduct, things like it needs to use the preponderance of the evidence standard, rather than clearing, convincing or beyond a reasonable doubt, that it has to use a single investigator model. It suggested not turning over certain evidence to respondents in these cases.

Institutions like ��֭����, and others, and many conservatives argued that this was unlawful, not just statutorily, because the administration was doing rulemaking through the Dear Colleague letter processes, as opposed to the Administration Procedure Act case, but to the extent that they were also dictating how disciplinary processes must proceed, and also mandating speech codes that it was unlawful constitutionally.

Now, we, at ��֭����, acknowledge, and have seen, that what the Trump administration is doing at Columbia and Harvard is different in scope, scale, and, arguably, severity as well. But they seem to be, at least in our minds, along similar paths, trying to use weaponized federal civil rights law to violate the individual autonomy and constitutional rights of these institutions, and to the effect that these mandates also make demands on students, or punish students, possibly their constitutional rights as well.

Now, one of the things that I’m disappointed about is that all the conservatives, who rallied around institutions like ��֭����, to oppose the Title IX mandates, many of them seem to be absent in the Title VI context. And I don’t remember any conservative institution making the argument that, “Well, it’s the federal government’s money. They can make whatever demands they want in the Title IX context.” But I’m seeing that left, right and center right now in the Title VI context. So, I’d love to get both of your perspectives, to the extent you were following the Title IX debate around any parallels or concerns that you might have had in that context, and how you see it vis-à-vis this current moment.

Erwin Chemerinsky: To my knowledge, the Obama and Biden administrations didn’t cut off funds from institutions. Here, we got cut off of $40 million from Columbia. We have a cut off of $2 billion from Harvard. That makes it in-kind different. I’ll use your words of scope, scale and severity. It was also done through a Dear Colleague letter, which is quite different from acting without any advance notice. That said, I disagree with some of what the Obama administration had been doing with regard to Title IX, but I don’t think it’s, in any way, comparable to what we’re seeing now.

David M. Rabban: I agree. I do think it’s important to recognize that the Obama administration also misbehaved, in a different, lesser way, to some extent, procedurally, which I’m not that expert in. But, also, substantively, in, for example, requiring speech codes that would be punished as protected speech under the First Amendment, that some people find offensive or even hurtful. That speech is protected under the First Amendment, and that kind of speech was punished under many university speech codes, which are themselves unconstitutional much more often than not.

And FIREhas been out front, hooray for FIREfor monitoring these speech codes, and how they’ve been utilized, often unconstitutionally, by universities. It almost seems, sometimes, like passive resistance, on the part of universities, in not applying the First Amendment to limit speech codes.

Nico Perrino: And I do want to just clarify for our listeners, who aren’t familiar with Title IX, this is Title IX of the 1964 Civil Rights Act that bans sex discrimination in federally-funded education activities and programs. Title VI is different in that it bans discrimination based on race, color and national origin, and has been interpreted to expand to things like shared ethnicity, including antisemitism. So, that’s the distinction between Title VI and Title IX.

I want to close out this portion of the conversation, before zooming out and asking you guys some big picture questions, by talking about the threats from the Trump administration to go after these universities’ tax exempt status. President Trump has floated revoking the tax exempt status of Harvard. What authority, if any, does he, as the President of the United States, have to not just float that, but perhaps direct his agencies to look into that. And is there any there, there, that you guys can see? Erwin?

Erwin Chemerinsky: I am not an expert on tax law or tax procedures. On the other hand, I understand there’s a federal statute adopted that says the president cannot direct the IRS to do things like this.

Nico Perrino: The Nixon era statute, right?

Erwin Chemerinsky: Right. The president doesn’t have the authority to revoke tax status. During the first Trump administration, a tax was created on endowments of the universities above a certain level. That has to be done by Congress. It can’t be done by the executive. And to rescind a tax exempt status because of disagreements, including disputes over ideology, is illegal and unconstitutional.

David M. Rabban: Like Erwin, I’m not an expert in tax law, but I pick up on his last point as a first amendment scholar. You cannot deny tax-exempt status based on disagreement with the viewpoint of a university.

Nico Perrino: That federal statute that was passed after everything that happened with Richard Nixon, I believe, also stipulates criminal penalties and fines for any violation. It doesn’t just apply to the president. The president can’t just direct the IRS to audit, for example, institutions or individuals. I think it also applies to other high-level officials within the government, including the treasury secretary. Whether Trump’s Department of Justice would pursue any of those statutes, I am skeptical, to say the least.

But there is precedent for a university losing its tax-exempt status for violations of civil rights law, or in the case of Bob Jones University, well-established civil rights policy.

David M. Rabban: That’s a different basis than viewpoint discrimination.

Nico Perrino: It sure is. But what hook, if any, given that Bob Jones precedent, would the Trump administration have to go after Harvard for alleged civil rights violations, and revoked its tax exempt status as a result of findings that there are violations. And I believe in the Bob Jones case, the court emphasized that revoking the tax exempt status was a sensitive decision, that should only be made when, “There is no doubt” that an organization violates fundamental and longstanding federal policy.

But that seems a bit mushy to me, and I don’t think there’s been any case like that since the Bob Jones case. And it’s often been kind of viewed skeptically. And this was Bob Jones, the loss of tax-exempt status because of rules, I believe, that had banned interracial dating and marriage, if I’m not mistaken.

Erwin Chemerinsky: There wasn’t a constitutional issue with regard to Bob Jones in the same way for revoking Harvard or University’s Texan status because of Hughs raises a constitutional question that wasn’t present in Bob Jones. Second, there were elaborate procedures that were followed with regard to Bob Jones. None of that has been used with regard to the tax exempt status of Harvard. It seems to be just a unilateral presidential decision.

And what you’re dealing with there is implementing a federal statute. This is just the Trump administration, on its own, deciding what it wants to do. Congress can set conditions on federal funds. The president doesn’t have the authority to add additional ones.

David M. Rabban: I want to point out, sometimes, universities make unconvincing claims based on their First Amendment academic freedom against taxation. And one case, I read, involves my own law school, university, Stanford. Stanford opposed revocation of tax exempt status on its golf course, okay, that was used mostly by alumni. And I don’t see how taxing a golf course interferes with the university’s first amendment rights to determine what to teach.

So, there are limits, how much a university can rely on the First Amendment to prevent taxation. Of course, what we’re talking about is a totally different context. But I think it is important to concede that sometimes universities, like sometimes professors, make unconvincing claims of First Amendment academic freedom. That’s not the situation here at all, as we’ve discussed at length.

Nico Perrino: Well, Stanford’s golf course is sacred ground. Tiger Woods, of course, went to Stanford.

David M. Rabban: Right. But it could be sacred, but it still could be “taxed”, right, “sacred,” right?

Nico Perrino: And I believe in the Bob Jones University tax-exempt case. The looking into of its alleged violation spanned four different presidential administrations, so this was a very drawn-out process before the arrival at the revocation of tax exempt status. And I believe, I might be wrong about this, that Bob Jones has got its tax exempt status back after that case. It took some time.

But let’s zoom out here. Given this federal pressure that we’ve seen, 60 universities under investigation, a handful of them already having their funding freeze, do you think we’re going to see more colleges and universities go the direction of Hillsdale, for example, and say, “We’re not taking any federal funding because we don’t want the strings attached?” And Hillsdale is a conservative college in Michigan.

David M. Rabban: Well, I think they’re more likely to do what Harvard’s done, and to resist intrusion from the federal government, claiming it’s unconstitutional, and trying to get courts to enjoin the federal government from withholding funding.

Erwin Chemerinsky: I agree with David on that, but I think one of the things that’s lost in discussion is why college universities are taking federal funds. The largest amounts of money go to medical schools, to engineering schools, to science departments, and this is because the government is funding essential research. If the government cuts off the funding for Harvard or Columbia medical schools, it’s going to tremendously set back research with regard to cancer, Alzheimer’s, a myriad of diseases, the restriction.

And returns from the National Institute of Health grants are going to have a devastating effect on medical research in the United States. It’s not subsidizing profiteering by universities. It’s paying for essential research. And the reality is, when you’re talking about the amount of money, there isn’t an alternative. For Berkeley, it’s $650 million in federal funds a year. It’s less because Berkeley doesn’t have a medical school. That’s $650 million out of a $4 billion budget. That’s an enormous amount of money. There isn’t an alternative to federal funding. And most of that goes in the sciences and engineering.

Nico Perrino: Isn’t that incentive, though, for universities to fold, and not resist the government, Erwin?

Erwin Chemerinsky: Well, my hope is that they’re going to do exactly the opposite, in what you say, if they're going to fight the government, that what they’re going to say is with…

David M. Rabban: At the risk of losing the money.

Erwin Chemerinsky: There is a risk of losing the money, but the alternative is to give up your core academic freedom. And that’s why what Columbia did the settling was wrong, what Harvard did and what Princeton has done have to be the models. I understand the threat. It’s the same thing in terms of the threat to law firms, but the reality is, capitulating to a bully only makes things worse.

David M. Rabban: And to my mind, reinforcing what Erwin is saying, this is probably the greatest threat to academic freedom in the history of our country.

Nico Perrino: Even greater than the McCarthy era?

David M. Rabban: I think so, because it’s broader.

Erwin Chemerinsky: Oh, I completely agree with that. In the McCarthy era, there was tragic targeting of individual faculty members, whether it was firing of them or not hiring individuals, students being involved. This is putting the universities at existential risk. This is the first effort, that I can ever think of, for the United States government to try to control education by college and universities in this country.

Nico Perrino: To close out here, what are you guys hearing through the grapevines, or not just from other faculty, but also from potentially university administrators. How are they looking at the threats? What might they – what are they saying they’ll do if the administration comes after them? How is it unfolding within the halls of academia?

David M. Rabban: Erwin probably talks to more administrators than I do.

Nico Perrino: What are you hearing, Erwin? What are you thinking?

Erwin Chemerinsky: There’s enormous anxiety. There’s anxiety, I think, at every university that hasn’t had funds cut off, that they’re next on the list. And what’s it going to be? Berkeley’s had $40 million lost already in terms of just freezing of grants. That’s a substantial amount of money. And what does it mean for the fact of their careers? What does it mean in terms of the research that’s going to be done to benefit society? Berkeley is the subject of seven different federal investigations, so I think anxiety is the word.

And one thing we haven’t touched on is the anxiety that’s being felt by our international students, the visa revocations, the revocation of the school called “SEVIS status.” Our international students are absolutely terrified, and their speech is being chilled. We don’t know, usually, why visas are being revoked. The government doesn’t tell them. It’s not following the statutory, regulatory law. It’s not providing due process.

But it’s also important to remember the Supreme Court said, in 1945, in Bridges v. Wixon, that “Non-citizens, as well as citizens, have free speech in this country, and there can’t be adverse immigration action taken because of people’s speech.” And yet, both the president and the secretary of state have said that’s exactly why they’re revoking visas. So, all of this is inconsistent with the First Amendment, and all of this is creating an enormous climate of anxiety on campuses.

David M. Rabban: I’ve heard from my own foreign students, I have quite a few in my law school classes, tremendous concern about what the administration is doing. I also, with respect to administrators, I have a sense, I don’t speak too frequently, they recognize this existential threat to universities that we’ve been talking about. For them, it’s the question of how to deal with and negotiate other threats of loss of funding, with standing up for the academic independence of universities, and how administrators will resolve those tensions, I think, remains to be seen.

Nico Perrino: Do you guys think the Supreme Court will hear a case, eventually, on the rights of foreigners, the First Amendment rights of foreigners in this country, either the Mahmoud Khalil case or there’s another one regarding a Tufts University student who wrote an op-ed, Rumeysa Ozturk. I think both of those cases might be right, but my understanding of the legal process is that they need to exhaust remedies through immigration court.

So, it’s that you go in front of an immigration judge, you can appeal to the Immigration Appeals Court, and then only after that can you get into a federal court and make your first amendment claims, if I’m not mistaken. Now, you do have these cases in federal court with regard to the habeas corpus petitions and whatnot. But it seems like there’s something that needs to be resolved here, because you have foreign students, who are deathly afraid to leave their dorm rooms at many of these colleges.

“Deathly” maybe isn’t the right word, but existentially afraid that everything that they’ve worked for at these colleges is at risk, and that there are rights that are being violated that nobody is protecting in this country right now.

Erwin Chemerinsky: Let me try to take that step by step. First, at least three federal district courts have issued temporary restraining orders, in particular cases, against the revocation of visas and SEVIS status. The largest of these was a northern district Georgia case on Friday for 133 students. I expect we will see many more of these, because the revocation of the visas and SEVIS status is just not following law and regulation, not providing due process, and in some instances, it’s a violation of the First Amendment.

Second, I think a case like Mahmoud Khalil’s will get to the Supreme Court, and it should be clear, So, as far as we know, what was done. He’s a green card holder, married to someone who’s a United States citizen, wife just had a baby the other day. And it was according to President Trump and the Secretary of State, Rubio, said it was because of the views that he expressed. And no one should face deportation, green card revocation, visa revocation because of their views. That’s Bridges v. Wixon. And so unless the Supreme Court wants to change the law, and I desperately hope that they won’t, what’s being done to Mahmoud Khalil violates the First Amendment. And so, I do think that one of these cases will get to the Supreme Court.

David M. Rabban: I also think one of the kinds of cases that Harvard is now involved in will get to the Supreme Court too, since the government is intruding so much at so many different institutions.

Nico Perrino: All right, well, professors Erwin Chemerinsky and David Rabban, I appreciate this conversation. I’m sure there’s gonna be much more to say on this topic in the days, weeks and months ahead, but I thank you for your time today.

David M. Rabban: Thank you for having us.

Erwin Chemerinsky: Such a pleasure.

Nico Perrino: I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIREcolleagues, including Sam Li, Aaron Reese and Chris Maltby. The podcast is produced by Sam Li. To learn more about “So to Speak,” you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle “free speech talk.”

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