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In October, President Trump proposed a compact for higher education, a federal takeover of state and private institutions thinly disguised as an offer of preferential funding consideration. Most of the initially targeted universities rightfully have rejected Trump’s unlawful and unconstitutional compact, but some schools, including the University of Virginia and Cornell, have since signed separate agreements with the federal government. Initial media coverage largely portrayed the deals as compromises that allowed the universities to preserve institutional autonomy and resolve outstanding federal investigations. But subsequent revelations about the coercive ouster of UVA’s former president underscore how, in fact, “deals” like these represent a dangerous new front in the Trump administration’s war on higher education.
UVA’s settlement, announced on 22 October, appeared to focus narrowly on diversity, equity, and inclusion (DEI) programs, to safeguard academic freedom, and to avoid external monitoring or monetary penalties. Cornell paid $60m and made various promises related to admissions, DEI, antisemitism, and foreign financial ties in exchange for a restoration of federal funding. UVA’s leaders hailed “a constructive outcome” that “uphold[s] the university’s principles and independence”, while Cornell’s declared that federal funding would be restored without sacrificing academic freedom. But the reality is very different.
UVA’s deal is not a deal at all. It provides that if UVA makes unspecified changes on “DEI” to the federal government’s satisfaction and provides it with data through 2028, the administration will close currently open investigations into the university. The federal government can open new inquiries at any time.
What the agreement does do is contractually bind UVA to the Trump administration’s definition of discrimination. That definition outstrips anything the law requires and, in fact, may force UVA to violate statutory and constitutional law. Far from extricating the university from government oversight, the agreement subjects UVA to federal monitoring and the risk of draconian financial penalties if the federal government decides, at its sole discretion, that the university has not complied.
UVA pledged to adhere to the drastically over- and under-inclusive definition of discrimination contained in non-binding July Department of Justice guidance. That guidance goes far beyond the supreme court’s 2023 decision in SFFA v Harvard, which prohibited certain uses of race in college admissions. SFFA explicitly allows schools to consider, for example, how an individual’s race – “through hardship, inspiration, or otherwise” – has affected their lives, and acknowledges diversity as a laudable goal. The government guidance, by contrast, prohibits the use of race, sex, or other protected characteristics “no matter the program’s labels, objectives, or intentions.”
UVA’s student body has never looked like Virginia; in particular, Black students have been severely underrepresented. Under UVA’s recently deposed president, the university made important strides toward greater inclusion. But the agreement forecloses all efforts to pursue the perfectly constitutional goal of increasing racial diversity in a state with a long history of discrimination and exclusion. The DoJ guidance also bans race-neutral “proxies” – including indicia of socioeconomic status as well as “cultural competence”, “lived experience”, “first generation” status, or “underserved geographic areas” – if they are used to increase the representation of racial or other minorities.
The administration’s guidance is riddled with ambiguities and internal contradictions. For example, its broad definitions of unlawful discrimination could be read to prohibit reliance on virtually any criteria other than those that tend to decrease diversity, such as standardized test scores. Practically speaking, if UVA gives an admissions boost–or even a scholarship–to students who have experienced economic hardship, or to first-generation college students, would that violate its agreement?
Moreover, the agreement places the university in grave financial jeopardy. It purports to pause pending investigations of UVA, while still allowing new ones, but the federal government reserves the right – at any time and for any reason – to terminate the agreement and to “pursue enforcement actions, monetary fines, or grant or funding terminations”. It requires UVA’s president to certify quarterly, under penalty of perjury, that the university has complied with the agreement, and it allows the government to investigate whether the university has in fact complied to its satisfaction. The federal government already has warned that certifications it determines to be untrue risk civil and criminal liability for “civil rights fraud” under the False Claims Act, including through actions brought by private citizens.
As a practical matter, this means that UVA has signed up for more potential investigations and penalties than if it had done nothing at all. And that may have been the point: to tie the hands of the next UVA administration in anticipation of Democrats’ imminent electoral victories. Whatever the reasons, we should see the agreement for what it is: the subjection of a great public state university to federal government control.
Cornell’s agreement, announced on 7 November, is less lopsided, perhaps thanks in part to the university’s responsiveness to community input. But it is still dangerous. The government demands $60m despite never having found that Cornell violated civil rights laws. The agreement requires that Cornell provide the government with admissions data, presumably to accuse the university of race discrimination if its student body is too diverse. It closes certain pending investigations but permits employment discrimination claims based on past conduct and future compliance reviews or investigations. The university has further agreed to use the DoJ’s extralegal discrimination guidance as a “training resource” for faculty and staff, which invites university employees to engage in potentially unlawful discrimination.
The agreement’s fine print contains additional perils. For example, Cornell agrees to disclose a range of student information and recognizes the government’s prerogative to share that data with law enforcement, an ominous nod to potential immigration consequences. A reference to the “prevention of terrorist financing” may relate to foreign funding – but in light of Trump’s recent executive orders targeting those the federal government considers to promote “extremist” views about race, gender, and migration as “domestic terrorists”, this provision may prove more menacing to free expression.
Both agreements affirm “academic freedom” and promise no interference with curricula or the free expression of ideas. But if universities can be subject to drastic financial penalties anytime the federal government decides “in its sole discretion” that the university is not complying, it is difficult to believe there will not be strong incentives for administrators, faculty, and students to avoid any speech or conduct that might attract negative attention from the Trump administration. Whether explicit or implicit, such federal control cuts to the heart of the freedom of inquiry that allows universities to contribute to the innovations, economic prosperity, and creation of knowledge that have made American higher education the envy of the world.
University leaders are under enormous pressure, and their refusal to sign Trump’s compact is courageous and important. But bespoke deals that more quietly exert federal control over public and private institutions set a dangerous precedent that should alarm all Americans.
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Serena Mayeri and Amanda Shanor teach law at the University of Pennsylvania
