Add Northwestern and Cornell to the growing list of universities whose federal funding is being threatened because of alleged failure to appropriately manage antisemitism on those campuses.

The New York Times broke the story Tuesday: “The Trump administration has frozen more than $1 billion in funding for Cornell and $790 million for Northwestern amid civil rights investigations into both schools, two U.S. officials said.” This follows on similar moves against Harvard ($9 billion), Brown ($510 million), Columbia ($400 million), and others.

And now there is a report that the federal government is “asking” Columbia to enter a consent decree — a “voluntary” agreement — to give a federal court oversight over the recent settlement agreement between the institution and the government.

To help our readers understand what’s going on — and why it is legally questionable and a problem for open inquiry — I asked Heterodox Academy (HxA) Director of Policy Joe Cohn to answer some questions about this scene.

Why should we want the government to have the power to bring colleges and universities to heel when it comes to civil rights protections?

“University campuses need to be places where all students of all viewpoints and backgrounds feel free and able to participate fully without harassment,” Cohn said.

The rise of antisemitism, Cohn explained, is causing serious problems for students on some campuses. “It’s reasonable — and even necessary in many instances — to have enforcement,” he said, “but it needs to follow the procedure laid out in federal regulations.” That’s not happening, as explained further below.

At HxA, we advocate for open inquiry in higher ed, and Cohn wants to be clear that “Enforcing anti-discrimination laws properly is not in tension with the value of open inquiry. After all, if an institution is discriminating against a class of people, those people are not truly free to study, free to teach, or free to research.”

“With reports of Jewish students and faculty being harassed, buildings being occupied and classes and events being disrupted by protesters, and even reports of vandalism and violence, it’s clear there is a need for the federal government to hold institutions that are failing to address this conduct accountable.”

How do these threats of massive federal funding cuts to America’s premier research institutions threaten open inquiry?

“No institution, no matter how rich, is in a position to simply ignore the possibility of losing hundreds of millions of dollars, and in some instances billions of dollars of federal funds,” Cohn explained. “The sheer size of the risk removes any incentive for institutions to fight back if the government makes demands on them — even if those demands go beyond protecting civil rights and threaten open inquiry.”

Cohn noted that the Trump administration’s actions have gone beyond addressing rightful concerns about discriminatory behavior and into the realm of policing ideas, posing “obvious and direct threats” to academic freedom.

The Trump administration’s demands on Columbia, for example, included putting a department under receivership in an apparent attempt to coerce changes to the curriculum, and surveillance (and possible punishment) of constitutionally-protected speech, such as particular arguments about Israel that are covered by the IHRA definition of antisemitism.

Insider Higher Ed reported that, “while the letter received by Columbia called for one specific Middle Eastern studies department to be placed under receivership, Harvard’s letter called more generally for ‘oversight and accountability for biased programs [and departments] that fuel antisemitism.’”

These moves constitute sweeping threats to freedom of thought, inquiry, and speech.

Cohn notes that federal law explicitly states, “No provision of any applicable program shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over the curriculum, program of instruction, administration, or personnel of any educational institution…”.

“While that statute applies to programs administered by the Department of Education and not necessarily to its enforcement of Title VI, generally speaking, it prohibits the federal government from getting involved in the curriculum of an educational institution,” Cohn said, “even if they think it is biased. The feds are supposed to keep their hands off curricula.”

“Additionally,” he explained, “the Unconstitutional Conditions Doctrine means that the government cannot force institutions of higher education to agree to violate people’s constitutional rights – including the rights provided to them under the First Amendment. So the government can’t force Columbia or any other university to censor itself or censor the constitutionally-protected speech of faculty or students.”

“Meaningful enforcement of Title VI is clearly warranted,” said Cohn, “but cutting corners is unlawful and destructive to institutions and the important educational and research functions the world needs them to perform.”

What’s legally wrong with how the Trump administration has been going about this?

The Trump administration, in its “shock and awe” approach to alleged campus antisemitism, is patently flouting federal regulations. Civil rights violations of the sort we are talking about fall under Title VI of the Civil Rights Act of 1964, and federal regulation lays out clearly how the Title VI enforcement process is supposed to work.

Title VI expressly demands that certain procedures are followed before funds are terminated. It states (emphasis added):

Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such non-compliance has been so found…

Section 100.8 of the regulations implementing Title VI is even more specific. It indicates that, if the government and a university can’t come to agreement over corrective action through “informal means,” the government must then advise the university of the failure to comply.

Before punitive action is taken, the regulations mirror the statute itself when they make clear that there must be “an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed” (emphasis added).

Then, under the regulations, there is a waiting period for punishment, namely “the expiration of 30 days after the Secretary has filed with the committee of the [U.S.] House [of Representatives] and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance…shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.”

The point of this kind of careful procedure and limit on punishment, Cohn explained, is “to ensure there isn’t error involved and to avoid collateral damage.” It also keeps the federal government in the role of enforcing specific laws, not using funds for general-purpose political leverage.

The president cannot order federal agencies to ignore the text of Title VI or the requirements of the regulations which set forth procedures designed to ensure that civil rights statutes can be enforced fairly. Barring congressional action and new formal rule making, the regulations in place must be followed.

That hasn’t been happening, and it constitutes reason for grave concern for all those who care about the protection of open inquiry.

Are there lessons everyone should learn from these enforcements, particularly from the situation at Columbia?

All eyes are appropriately on Columbia University now because in many ways the institution has been ground zero with respect to antisemitism on college campuses and federal enforcement.

There is a strong case to be made that the campus climate at Columbia is hostile to Jewish students and faculty. During anti-Israel protests post October 7, protesters called for an intifada against Jews and urged the killing of Israeli soldiers. According to the New York Post, “Jewish students at Columbia University were chased out of their dorms, received death threats, spat upon, [and] stalked and pinned against walls.”

According to an August 2024 report by Columbia’s Taskforce on Antisemitism, some Jewish students “recounted seeing drawings of swastikas in their dorms, students yelling pro-Hamas chants, and being denied access to public spaces and opportunities simply because they were Jewish or Israeli.”

“Federal intervention at Columbia seems appropriate, given the institution’s ongoing struggles to address its toxic anti-Jewish discriminatory environment,” said Cohn. “Columbia should have done everything within its lawful powers to create a discrimination-free environment, and have the backbone to defend academic freedom. If it agrees to a consent decree instead of asserting its rights, it will have failed at both.”

“Another lesson to be learned from this is that the mechanisms available to the federal government to enforce anti-discrimination laws may need to be adjusted to ensure that they still have teeth, but can’t be used for general intimidation. But perhaps the most important lesson is that institutions must circle the wagons and defend each other when the line is crossed from protecting students to censoring ideas.”