How the Compact Curtails Academic Freedom

Seven of the nine universities originally invited to sign the Trump administration’s proposed “Compact for Academic Excellence in Higher Education” have rejected it, and now President Trump has extended the invitation to sign the compact beyond those nine institutions to all of higher education in exchange for preferential consideration for various federal benefits.

A college or university mulling over the invitation would do well to consider MIT president Sally Kornbluth’s reason for declining to sign it—that the compact “would restrict freedom of expression and our independence as an institution.”

Let’s focus on matters of free expression and academic freedom by examining the compact in three broad categories: viewpoint diversity, institutional neutrality and student expression.

Viewpoint Diversity

Several major components of the compact center around the demand that universities “commit themselves to fostering a vibrant marketplace of ideas on campus.” The compact explains that this “requires an intellectually open campus environment, with a broad spectrum of ideological viewpoints present and no single ideology dominant, both along political and other relevant lines. Signatories commit themselves to revising governance structures as necessary to create such an environment.”

Although the First Amendment prohibits the government from mandating that an organization be neutral with respect to viewpoints, in fact many research universities have independently been striving to increase viewpoint diversity. But they face real obstacles. The large majority of faculty are politically liberal, and it is not apparent that even the conservative minority includes many MAGA adherents. Observers of the phenomenon believe that it is a matter of self-selection rather than discrimination against conservatives. (See Neil Gross’s Why Are Professors Liberal and Why Do Conservatives Care?)

Universities are exploring two quite different strategies to increase conservative viewpoints among their faculty. A joint effort between Johns Hopkins University and the American Enterprise Institute seeks to expand the pipeline of conservatives potentially interested in academic careers. Other institutions are establishing civics institutes that emphasize more traditional views of American history than the critical perspectives provided by some history and social science courses.

Even if these efforts are successful, they are unlikely to satisfy the compact’s demand that “no single ideology [be] dominant, both along political and other relevant lines”—whatever the last phrase may mean. As the conservative Roman Catholic scholar Patrick Deneen has unhappily observed, virtually all contemporary Western universities—even his home institution of the University of Notre Dame—are committed to the ideology of philosophical liberalism of the sort championed by the 19th-century philosopher John Stuart Mill to the exclusion of, say, religious concepts of the truth.

The compact also requires that universities commit themselves “to transforming or abolishing institutional units that purposefully punish, belittle and even spark violence against conservative ideas.” While the university itself behaving this way toward anyone is reprehensible, the compact reveals its partisan colors by limiting its protection to conservative ideas. Politically “progressive” activities, including pro-Palestinian protests, also have been targeted. As a matter of constitutional law, while the government may not impose viewpoint neutrality on an organization, its own granting of benefits must be viewpoint neutral.

The compact requires that “signatories commit to rigorous, good faith, empirical assessment of a broad spectrum of viewpoints among faculty, students and staff at all levels.” The validity of surveys of this sort has been called into question (here, too). Especially in an era of AI, people may be skeptical that even good-faith efforts to anonymize their responses will be successful and respond by trying to please their peers and those in authority rather than with candor. More fundamentally, the Supreme Court has held that the First Amendment protects professors and others (this, too) from being compelled to disclose their ideological and political beliefs and affiliations.

The compact requires “a broad spectrum of viewpoints … within every field, department, school and teaching unit.” What can this mean? Must a department of immunology have vaccine skeptics? Must an economics department have Marxists? Must a sustainability school have climate skeptics? Must a political science department have democratic socialists? In ironic contrast with the compact’s demand for a “commitment to rigorous and meritocratic selection based on objective and measurable criteria in the appointment process,” selecting faculty based on their beliefs to achieve a broad spectrum of viewpoints within every field puts ideology ahead of academic merit.

More fundamentally, a requirement of “objective and measurable criteria” would force universities to abandon the peer-review process—the universal method for assessing candidates for faculty positions in higher education. Peer review requires drawing on experts to make judgments about a candidate’s prospects for original research and excellent teaching that are not subject to objective and measurable criteria. Although no less subject to biases than other discretionary decisions, such judgments are intrinsic to peer review, which is a foundational component of academic freedom and essential to progress in academic fields.

The compact imposes a similar requirement of objective criteria in student admissions. This goes against the -practice by virtually every American college and university of taking nonquantifiable factors into account—a practice endorsed by the Supreme Court in its decision prohibiting affirmative action based on race.

Institutional Neutrality

Most of the discussion so far has focused on the rights of faculty and students, but private universities have their own First Amendment rights as well. These are violated by the compact’s demand for “institutional neutrality,” which requires university administrators to refrain “from actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university.”

My own view is that there’s much to be said for university administrators not commenting on current controversies. But there are many legitimately different views about when comments are appropriate. For example, in an interview with The Daily Princetonian, Princeton University president Christopher Eisgruber said, “You can’t be neutral about everything.” The paper added that Eisgruber “specifically noted speaking on behalf of diversity, inclusivity, free speech, academic freedom and sustainability.” In any event, was it wrong for university presidents to condemn Hamas’s slaughter of Israelis or the assassination of Charlie Kirk?

The compact’s demand for institutional neutrality “must apply with equal force to all of the university’s academic units, including all colleges, faculties, schools, departments, programs, centers and institutes.” The extension to centers and institutes raises particular problems of academic freedom.

Just looking at my home institution, the intellectual environment at Stanford University has benefited greatly from having the avowedly conservative Hoover Institution, whose mission statement expresses a strong political position: “Both our social and economic systems are based on private enterprise from which springs initiative and ingenuity … Ours is a system where the Federal Government should undertake no governmental, social or economic action, except where local government, or the people, cannot undertake it for themselves.”

By the same token, the intellectual climate has benefited from Stanford’s Clayman Institute for Gender Research, which is committed to advancing “gender equality,” and its Center for Comparative Studies in Race and Ethnicity, whose mission is to advance “racial equity.”

In the vein of “be careful what you ask for,” a comprehensive requirement of institutional neutrality might doom some of the emerging civics initiatives that are intended to bring conservative perspectives to campus. Interestingly, the U.S. Department of Education recently announced the launch of the America 250 Civics Education Coalition in collaboration with the conservative America First Policy Institute, Turning Point USA, Hillsdale College and others. The coalition is “dedicated to renewing patriotism, strengthening civic knowledge and advancing a shared understanding of America’s founding principles in schools across the nation.” No university committed to institutional neutrality could join this effort.

Whatever one’s views about transgender policies, the compact’s requirements of single-sex spaces in bathrooms and locker rooms and of “fair competition” in sports do not violate academic freedom. That cannot be said, however, for the requirements that “institutions commit to defining and otherwise interpreting ‘male,’ ‘female,’ ‘woman,’ and ‘man’ according to reproductive function and biological processes.” Closing off debate by mandating definitions smacks of George Orwell’s newspeak.

Student Expression

Most of the compact regulates the conduct of university administrations and faculty. But three sections focus on students.

The compact requires universities “to screen out [foreign] students who demonstrate hostility to the United States, its allies, or its values.” Even though the government may forbid immigration based on an applicant’s viewpoints, it can’t require universities to exclude them. Noncitizens who are lawfully present in the U.S. have the same First Amendment free speech rights as citizens.

The compact also addresses protests. Most of the actions it prohibits are not protected by the Constitution. However, for better or worse, the First Amendment does not permit, as the compact demands, punishing “demonstrators [who] heckle or accost individual students or groups of students” absent other aggravating circumstances.

Finally, the compact requires universities to “adopt policies prohibiting incitement to violence, including calls for murder or genocide or support for entities designated by the U.S. government as terrorist organizations.” However loathsome calls for murder or genocide may be, the First Amendment protects students who utter them unless they call for imminent action. Providing material support to terrorist organizations may be punished, but the compact’s mandate is not so limited, and President Trump appears to be expanding “terrorist” to include vaguely defined domestic organizations.

Conclusion

The compact imposes its requirements as a condition for receiving a panoply of federal benefits: access to student loans, grant programs and federal contracts; funding for research; approval of student and other visas; and preferential treatment under the tax code. The list of benefits is immediately followed by the comment that “institutions of higher education are free to develop models and values other than those below, if the institution elects to forego [sic] federal benefits.” It doesn’t require much reading between the lines to imagine that the administration will deny these benefits—many of which are essential to the very existence of a research university—to institutions that do not sign the compact.

As MIT president Kornbluth wrote, “The premise of the document is inconsistent with our core belief that scientific funding should be based on scientific merit alone.” Her point has the backing of the federal district court in Harvard v. Department of Health and Human Services, which held that the government may not condition research funding on an institution forgoing its constitutionally protected rights.

Secretary of Education Linda McMahon’s cover letter inviting institutions to sign the compact states that the document “is largely in its final form, but we welcome limited, targeted feedback.” Vanderbilt University, for example, has indicated it is taking up the offer to provide such feedback. But even apart from the principled objection of tying research funding to issues unrelated to research, the academic freedom violations seem too embedded in the document to admit of “limited, targeted feedback.”

Moreover, although some aspects of the compact might seem quite reasonable, there are still others—for example, a requirement that tuition be free for students in the hard sciences at certain universities—that seriously impinge on a university’s autonomy, not to mention its financial viability.

Ironically, many of the issues raised in the compact are ones that universities and adjacent organizations have been independently addressing in recent years, in recognition of the need for revising universities’ “academic social contract” with America. They should not allow criticisms that they are toadying to the Trump administration through anticipatory obedience to deter them from this important task.