A President might not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against little resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, in a Chronicle of Higher Education piece. It quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”
Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:
It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.
More: cross-posted, slightly expanded, at Cato at Liberty. And FIRE (Foundation for Individual Rights in Education) has now weighed in on last night’s events at Berkeley surrounding an invited speech by Milo Yiannopoulos. On the federal funding issue, FIRE states its view as follows:
It is true that, under current law, public universities that enforce blatantly unconstitutional speech codes and private universities that violate their own promises of free speech do not face the same potential loss of federal funding for censoring campus speech that they do for violating other federal civil rights laws and regulations. However, FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.
Those who engage in violent and/or destructive protests are ultimately responsible for their unlawful behavior and may be subject to arrest and prosecution by law enforcement. To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.