The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Free Speech Unmuted: Harvard vs. Trump: Free Speech and Government Grants
The Trump Administration has announced that it was freezing grants to Harvard, and demanding that Harvard change many of its policies and practices in order to get back in the Administration's good graces. President Trump has also suggested that Harvard might lose its tax-exempt status for "pushing political, ideological, and terrorist inspired/supporting 'Sickness.'" Would such a cutoff of funding or tax exemption benefits violate the First Amendment? Jane and I discuss.
See also our past episodes:
- Free Speech Unmuted: Trump's War on Big Law
- Can Non-Citizens Be Deported For Their Speech?
- Freedom of the Press, with Floyd Abrams
- Free Speech, Private Power, and Private Employees
- Court Upholds TikTok Divestiture Law
- Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama
- Protests, Public Pressure Campaigns, Tort Law, and the First Amendment
- Misinformation: Past, Present, and Future
- I Know It When I See It: Free Speech and Obscenity Laws
- Speech and Violence
- Emergency Podcast: The Supreme Court's Social Media Cases
- Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna
- Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein
- The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky
- Free Speech On Campus
- AI and Free Speech
- Free Speech, Government Persuasion, and Government Coercion
- Deplatformed: The Supreme Court Hears Social Media Oral Arguments
- Book Bans – or Are They?
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Did Congress specifically name Harvard as the receiptant of the grants or did the statutue allow the executive branch with discretion to determine which organizations to provide the grants to?
Even if it has discretion it can't discriminate based on viewpoint in the allocation of the grants
What you don't realize is that the government can find pretty much anything it wants to go after. Race preferences, for example, that cross the line into illegal discrimination can be a federal crime (if school is state school) and are, in any event, illegal, and they run the risk of making the school into Bob Jones University.
If an entity is in violation of Civil Rights protections, they should not receive any money.
Mind you, we should cut ALL funding to ALL universities.
That’s the point - we aren’t talking speech, but illegal discrimination based on race, sex, religion, etc. As well as making it a hostile environment for esp Jews. But that has to be bolstered by evidence that the hostility makes the target reasonably fearful for their safety.
Congress doesn't award specific grants: it funds federal agencies like the N.S.F. and the N.I.H., which then make decisions about which grant applications to approve.
Many federal research grants are awarded to individual academics or groups of researchers, not to the institution they work for. An individual recipient can choose to move to a different university and take their grant with them. When Trump threatens to take away Harvard's grants, I believe that includes grants to individual academics currently working at Harvard. Harvard may also receive grants as an institution - I don't know.
Here's the problem. Obviously, when it comes to race-preferences, there is no breathing room, so once something crosses the line, the government can basically do what it wants to the university. Kinda like federal financial regulators.
Yeah, no.
The 1st Amendment does not require the government fund "speech" even in its broadest definition of any kind. Outside of any contractual obligations, which is a different issue completely, the Federal Government could cut off all funding to all schools for any or no reason whatsoever without any Constitutional implications. There is no such thing as free money with no strings attached. You accept funding, you accept the conditions attached.
All classes must begin by hailing the wisdom of demi god Trump? That kind of condition?
And like most you seem to confuse constitutional with desirable.
the Federal Government could cut off all funding to all schools for any or no reason whatsoever without any Constitutional implications.
1. I don't think that's true - reliance interests implicate due process.
2. Even if it were true, that doesn't mean you get to cut of funding for an *impermissible* reason. Like to go after freedom of speech. Hence the First Amendment getting a mention in the OP.
3. The grants money has plenty of strings. Federal terms and conditions are numerous. Prof works at a school that does proper obeisance to the MAGA worldview is not one of them.
Those are contractual issues, not Constitutional. Suppose hypothetically next year's budget includes zero money whatsoever for colleges. Would that be speech suppression?
There are plenty of reasons to oppose cutting off funding. The 1st Amendment isn't one of them.
1. Grants are not contracts.
2. Your hypo is not on point. This is not stopping next cycle's funding, it's stopping competed for and won research grants already in mid-performance. Some from years ago.
3. Under your logic because you can fire someone for any reason you can fire them for their race. No; that's not how it works.
Congress shall make no law. Appropriations are laws. If there is proof the approps law was made due to speech, how is that not against the Constitution?
I think grants are contracts.
No - see https://www.osp.pitt.edu/news/what-difference-between-federal-grant-and-federal-contract
"Federal terms and conditions are numerous. Prof works at a school that does proper obeisance to the MAGA worldview is not one of them."
How about not violating federal civil rights laws? All the leftists are pretending this is about being political dissidents when in reality it's because the universities are dyed in the wool racists.
The demands made on Harvard are about speech, not civil rights laws.
The administration hasn't even tried to bring an action against Harvard under the civil rights acts. What does that tell you?
the universities are dyed in the wool racists. you should do a bit of work to support assertions like that, lest you look like a weirdo.
That is not correct. Look up the concept of unconstitutional conditions. The government cannot condition the receipt of money on things that the government itself cannot do consistent with the constitution.
Far Right University opens Department of White Power and offers courses such as Slavery Revisited and Racial Variation of Intelligence. Do they get federal funding? Or are they protected by 'free speech?' Oh yeah - and African American students need to get 20% higher SAT scores than White students to be admitted. And all fraternities and sororities are racially segregated.
Feel free to provide an example of what you're blathering on about.
One word: accreditation.
No such IHE could ever be accredited and thus exist in the first place. And I think you know that.
In what universe is his hypothetical getting funding and accolades with their viewpoint? And yet that is CRT and DEI and AA are and they are celebrated for their racism and call discontinuing their racism and a return to color-blind norms as required by law viewpoint discrimination.
Why does a "non-profit" with a $53 BILLION endowment get so much government aid???? You are both wrong
It doesn't get any government aid. This is not like giving money to a museum or orchestra or something. This is research grants and the like.
I put this question in another thread, but it missed connecting. I will put it again here.
Who thinks Harvard's suit adequately protects 1A rights for students? It looks to me like it concedes a requirement to punish anti-Zionist advocacy for Palestinians—which would continue classed as punishable anti-Semitism—in exchange for a decision to protect Harvard's institutional right to broad 1A protection. Student rights to free assembly also look under-supported. I hope I am mistaken. Any comments from lawyers who have read the Harvard lawsuit?
The Harvard complaint is 50 pages and 191 paragraphs long. While I've skimmed the whole thing, I'm not going to guess what you're talking about in there. If you have concerns about a specific part of it, cite that part and I'll look at it.
Thank you Nieporent. Turns out that's a never-mind. My mistake. I found something elsewhere, and assumed (after a misread) that the complaint endorsed something it actually seems to have superseded. You were wise not to read 50 pages on my say-so.
As hard as it is to believe that this is where we are in the U.S, Trump and his people are now openly working (using taxpayer dollars) to cause people to report their religion or religious affiliation to the U.S. government. We all should be on the same side of these issues. Our Constitution commands that each person's religion, religious affiliation(s) or sentiments for or against any religion be left to the dictates of such person's own conscience.
https://www.msn.com/en-us/news/us/looked-like-a-scam-trump-admin-asks-college-employees-if-they-re-jewish/ar-AA1DviX5?ocid=msedgntp&pc=LCTS&cvid=29ee5076ac314b1ce0a078dd1d23bdfe&ei=18