Genevieve Lakier

Excellent post by @evelyndouek.bsky.social about the most important doctrinal move made by the Court in the Rubio case: to take seriously the chilling of speech as a First A injury. It should not be hard to understand why recognizing this matters so much to all of us RIGHT NOW.

A Compact for Control (opinion) No self-respecting institution of higher education should accept the Trump administration’s unconstitutional terms, Robert Post and Tom Ginsburg write.

Great piece @insidehighered.com by Robert Post and Tom Ginsburg about the considerable threats posed by Trump's (extortion) "compact" with 9 universities. @aaup.org

www.insidehighered.com/opinion/view...

Hello!

I am your friendly neighborhood First Amendment professor here to provide some background on Chiles v. Salazar, to be argued in Supreme Court this morning.

At issue is whether Colorado can ban licensed therapists from inflicting the discredited practice of “conversion therapy” on minors

The Unconstitutional Conditions Doctrine and the Compact for Excellence Members of the Trump administration love to say that federal funding is a privilege not a right and therefore something that can be granted or withheld based on changing administrative priorities.

“The fact that so many of its provisions infringe on the protected 1st A rights of the universities…makes the Compact almost certainly unconstitutional.”

Must read by @genevievelakier.bsky.social

blog.dividedargument.com/p/the-uncons...

Your post is excellent but I don't want administrators to read it and think that they need do nothing to defend themselves against what may (or may not!) be a very serious threat to their institutions

I hope you are right! You are obv right that now is the time to put as much pressure as possible on red state private schools to not sign. But vagueness is itself a 1A problem, bc of its chilling effects, so litigation is a viable parallel track that schools can and I think should explore.

I think universities should instead SUE the gov for what is a blatantly unconstitutional art of the deal. And they should start prepping their lawsuit now, before the Compact goes into effect.

I worry however that it underplays the partisan dynamics at work here. If all (public) schools in red states are forced to sign on to the Compact, and therefore get priority in federal funds, will schools in blue states feel free to resist? Do unis really have the capacity to simply...do nothing?

Excellent post--and in its own way remarkably hopeful about the unlikeliness of the Compact to succeed in its effort to control American higher education...

I don't think that it does. First, Finley treats the conditionality of the grants as in fact a serious 1A prob--which is why the majority works so hard to interpret the conditions narrowly. As do all the post-Finley cases, including Open Society.

Finley is a pretty bad opinion I think, but the majority upholds the restrictions only after finding them to be both advisory and not likely to result in targeted viewpoint discrimination. Pretty different to the situation here!!

The Unconstitutional Conditions Doctrine and the Compact for Excellence Members of the Trump administration love to say that federal funding is a privilege not a right and therefore something that can be granted or withheld based on changing administrative priorities.

The Trump Administration’s “Compact of Excellence” for Universities is... far from excellent! Indeed, it’s unconstitutional. In this post, let me count the ways.

blog.dividedargument.com/p/the-uncons...

The requirement of institutional neutrality in particular makes the parallel to the earlier unconstitutional conditions case even closer than I thought! Here too speakers are being asked to not editorialize in order to receive funds from the gov.....

From the NYT: “The White House on Wednesday sent letters to nine of the nation's top public and private universities, urging campus leaders to pledge support for President Trump's political agenda to help ensure access to federal research funds.”

University presidents it’s time for a united front. I mean, it’s past time. What are you going to do.

Hence, I dearly hope that @aceducation.bsky.social and the institutions it represents do not just sign on the dotted line to a “compact” that they should fight tooth and nail against—and that the constitution likely protects them against. Do they have the political courage to do so though? End.

It is continuing to try--as it has for the entire year--to leverage its power of the purse to control American higher ed and by proxy the ideas that students around the country are exposed to. In principle, the 1A limits its ability to do so--but only if those protected by it stand on their rights.

Actually universities receive much STRONGER First A protection than broadcasters under contemporary precedents. And yet the admin is asking them to forego a core 1A right, just as the govt attempted to do in the radio case in order to receive federal funding

FCC v. League of Women Voters, 468 U.S. 364 (1984) FCC v. League of Women Voters

Indeed, the facts are quite similar to a case in which SCOTUS unanimously found the gov violated the doctrine when it prohibited radio stations that received federal funds from “editorializing”—for similar lets not create a less partisan public sphere reasons

supreme.justia.com/cases/federa...

Even if institutions that don’t agree merely receive limited access to federal funds, it is hard to see how this is NOT an unconstitutional condition. They would still be effectively denied benefits bc they refused to waive their constitutionally protected right to academic freedom

I haven’t been able to access the document itself—if someone can point me to a copy I would be grateful—but the quoted language suggests that universities that do not comply with these demands will, in effect, not be eligible for federal benefits at all

Quotes text from the WSJ article that says as much

But the “compact” the admin is asking universities to sign demands that they change how they regulate speech on campus—including by abolishing departments that “belittle… conservative ideas” ????? in order to continue to receive federal funds

The doctrine of unconstitutional conditions says that govt actors cannot condition access to federal benefits on their agreement to waive their constitutional rights.

The admin’s efforts to get universities to agree to a list of demands in exchange for preferential access to federal funding isn’t just “troubling” as Ted Mitchell, prez of the @aceducation.bsky.social says in this article; it looks blatantly unconstitutional.🧵
www.wsj.com/us-news/educ...

The takeaway: the Roberts Court has been enabling speech repressive govt action for a long time now, not just this year. Hopefully this wil lbe a spur for the FIfth Circuit to act to protect academic freedom in Texas unis... but I'm not holding my breath.

But the Fifth Circuit has not carved out an exception for govt workers who are researchers or teachers. It should! But AFAIK as of now in Texas, it is not at all clear that profs at Texas Tech have any 1A rights when they research or teach

Courts of appeals have thus had to do the work of protecting academic freedom at public universities from legislative control by carving out an exception for public workers who are researchers and teachers—as some have www.opn.ca6.uscourts.gov/opinions.pdf...

In fact, SCOTUS held in 2006 that gov workers have no 1A rights when they speak pursuant to their job responsibilities and didn’t bother to carve out an exception for profs at public universities, although it didn’t dismiss the possibility that an exception could exist

www.oyez.org/cases/2005/0...

Texas Tech Moves to Limit Academic Discussion to 2 Genders

You would think this move by Texas Tech would be blatantly unconstitutional bc it intrudes so much on academic freedom, which SCOTUS has insisted is a "special concern of the First Amendment." But you would be wrong 🧵https://www.nytimes.com/2025/09/26/us/politics/texas-tech-gender.html

Weekly Roundup: September 26 Genevieve Lakier on weaponizing antidiscrimination law, Sanjukta Paul on laws and markets, and Ally Coll and Justin Gravlee on NIH v. APHA. Plus, an incredible online conference on Capitalism and…

The week in review: @genevievelakier.bsky.social on weaponizing antidiscrimination law, @sanjukta.bsky.social on laws and markets, and Ally Coll and Justin Gravlee on NIH v. APHA.

Plus, an incredible conference on Capitalism and Socialism (free, online, starting in an hour 😬).

Can Government Officials Pressure Private Companies and Universities to Restrict Speech?

I talked with Jeffrey Rosen and Eugene Volokh about the law of jawboning, Brendan Carr's threats against ABC, the Trump admin's threats against universities, and the deep problems created by a public sphere in which the gov pulls so many purse strings. open.spotify.com/episode/1sZo...