The Trump administration’s 10-point compact for colleges—touted as conferring a priority in securing federal funds—is unlawful and a dangerous trap for university presidents. Parts of the compact purport simply to reaffirm that a college must comply with existing statutory requirements. But, as a whole, the document would force those institutions into impossible legal choices fraught with potentially existential consequences. In addition, it would expose university presidents, provosts, and admissions directors to substantial personal liability while submitting their schools to foreseeable clawbacks of funding and private donations. This would dramatically increase, not decrease, President Donald Trump and his administration’s discretion and power over the college’s future. This moment offers a significant opportunity for leadership: By linking arms and refusing to sign the agreement, these institutions will be drawing a line in the sand and making it easier for other schools to stand firm.
This compact is unconstitutional and unlawful. The inclusion of language to transform or abolish units that “punish, belittle, and even spark violence against conservative ideas” exposes the compact’s true intent: to chill expression disfavored by the government and lift up their preferred speakers and speech; to bring a potential voice of political opposition to heel; and to quash free intellectual inquiry. That violates the First Amendment and the unconstitutional conditions doctrine; it exceeds any statutory or other authority granted to the president; it violates the Administrative Procedures Act; and it transgresses the 10th Amendment in the case of public institutions by encumbering the rights reserved for the states.
Of equal concern is in how it unconstitutionally and unlawfully expands the administration’s leverage over universities—and individual university leaders. As Attorney General Pam Bondi threatened, “Any university president willingly breaking federal civil rights laws will be met with the full force of the federal government.” Enforcement of civil rights laws is only reasonable if it is properly predicated. It becomes unlawful in the context of unprecedented weaponization of enforcement for political purposes. To date, the Trump administration has weaponized civil rights investigations into antisemitism on campuses—which on its face is indeed a serious concern—and withheld billions of dollars of federal research funding to pressure universities into adopting its political priorities. In July, the Department of Justice demanded that University of Virginia President James E. Ryan resign as a condition to settle a civil rights investigation.
In practice, this compact does nothing to shield signatories from those actions going forward, as the compact envisions continued scrutiny from a politicized Justice Department around compliance that can result in not only the loss of its benefits but also all federal funding. Rather, this Justice Department could go further, having already shown its willingness to target vexatious and malicious investigations and prosecutions against its opponents even if they would not likely result in convictions.
The compact puts in play a powerful new tool for coercion by requiring university presidents, provosts, and directors of admissions to annually certify compliance with its commitments. This opens these individuals up to the potential for heavy civil penalties—with possible treble damages—under the False Claims Act if the government can successfully argue they knowingly (even if unintentionally) made a false representation, as there is no intent requirement in the statute. These claims can even be brought by private individuals on behalf of the government (known as “qui tam” actions), inviting attacks by employees, students, or alumni. It also opens those leaders up to potential criminal liability under 18 U.S.C. §1001 for anything determined to be a false statement. Even if prosecutions under that and other statutes might not result in convictions, investigations and unfounded prosecutions would be a powerful coercive force by the government over university leadership. The requirement for certification is not an accident: It gives the administration new, even more powerful tools to pressure university leadership into compliance with its political goals.
The potential risk to institutions and their leadership does not end there. It would put them in the impossible position of following long-standing interpretations of civil rights law by the courts—which can be enforced by private suit—and disingenuous interpretations by the Trump administration enforced under the compact. For example, under the compact, institutions must define gender according to “reproductive function and biological processes,” despite standing Supreme Court precedent in Bostock v. Clayton County that gender discrimination can amount to sex discrimination—meaning that adopting the compact could open up an institution to civil rights claims. Colleges who sign on would also agree to cap international undergraduate student enrollment at no more than 5 percent per country, potentially exposing them up to claims of national origin discrimination or an equal protection or due process lawsuit. Other personal liability and private actions might be possible, even if they are less of a slam dunk.
The undeniable conclusion is that college leaders must ask tough questions of their general counsels and personal lawyers before agreeing to sign this compact. It increases their personal legal risk, and it increases the likelihood that they will have funding stripped down the road if the president or others in the administration don’t believe they’ve tilted the scales enough toward the political and ideological interests of the Trump administration. It adds substantial new risk that donors will be able to claw back past donations. It’s a lose-lose for universities, their leaders, and for academic freedom broadly.
If university presidents show leadership in this crucial moment and refuse to sign onto an unconstitutional and unlawful agreement, the administration may think twice about expanding the compact to all schools nationwide. This challenge to fundamental free speech and civil rights and liberties has enormous import for the future of rights for all Americans. Significant resources and vocal public solidarity should be offered by alumni, businesses, and civil society to help targeted universities bring effective litigation against this illegal overreach of government.
Higher education institutions should not cede this degree of control over their campuses. Congress and the White House can use the regular tools of government, such as laws and regulations, to shape institutional behavior where it is legal to do so—but they must not be allowed to unconstitutionally coerce behavior by dangling research funding as a carrot for their ideological goals of suppressing speech. Research funding should be used to fund science, advance technology, and improve Americans’ lives rather than sell out to the highest ideological bidder.