The “Compact for Academic Excellence” Will Have Ripple Effects For Higher Ed

On October 1st, the U.S. Secretary of Education sent a “Compact for Academic Excellence in Higher Education” to nine universities. The administration’s proposed compact is a wide-ranging agreement between universities and the federal government, which will require universities to comply with the government’s priorities or risk losing federal funding. The response to the compact by the higher education community was widespread and swift, with the vast majority of universities and associations denouncing the compact as federal overreach and extortion.

The initial nine universities—MIT, Brown, University of Pennsylvania, Dartmouth, University of Southern California, Vanderbilt, University of Virginia, University of Arizona, and UT Austin—were not immediately asked to sign the compact, but were invited to provide “limited, targeted feedback to ensure mutual alignment” by October 20th. By that date, seven out of the nine institutions had formally rejected the compact outright. The remaining two, Vanderbilt and UT Austin, are providing feedback to the administration, without yet accepting or rejecting the agreement.

The administration intends to have a finalized and signed version of the compact by November 21st. While White House officials have said that Trump has now extended the invitation to all colleges and universities (if only by means of a Truth Social post), it isn’t currently clear how institutions are supposed to go about signing the agreement. Over the next several weeks, we will likely learn more about the final version of the compact, as well as which universities are willing to agree to its demands.

What does the Compact include?

The Compact for Academic Excellence begins by acknowledging the mutually beneficial relationship between the federal government and the university system. It then goes on to explain that the benefits universities receive from the federal government (including access to student loans, grant programs, federal contracts, research funding, visa approval, and tax benefits) are conditional on their compliance with the administration’s priorities. The rest of the compact outlines these priorities, as well as the ways the federal government will enforce their compliance.

The priorities touch on many areas of university policy and procedure, including admissions, hiring, tuition, speech, and protest. Some of the specific points include:

• Admissions and Hiring: Barring a consideration of “sex, ethnicity, race, nationality, political views, sexual orientation, gender identity, religious associations, or proxies for any of those factors” in admissions or financial aid, with similar reassertions regarding university hiring.
• Ideology: Committing to “transforming or abolishing institutional units that purposefully punish, belittle, and even spark violence against conservative ideas.”
• Institutional neutrality: Forbidding university faculty and staff from “actions or speech relating to societal or political events.”
• Gender policy: “Defining and otherwise interpreting “male,” “female,” “woman,” and “man” according to reproductive function and biological processes.”
• Financial responsibility: Freezing tuition for the next five years, and reimbursing students who leave the institution after their first term.
• “Foreign Entanglements”: Instituting a 15% cap on international students, and greater oversight of foreign donations.

The compact goes on to say that universities who “willfully or negligently violate this agreement shall lose access to the benefits of this agreement” for at least a year, and will have to immediately return any federal funds advanced during the year of the violation. It’s not entirely clear if the “benefits” mentioned here are those outlined in the opening of the compact, or some additional benefits not currently included, like preferential consideration for funding, which was alluded to in the invitation to the original nine universities.

One main concern about the compact, as it is written right now, is that many of its terms are vague enough to invite confusion or misinterpretation. This could mean that the Department of Justice, who the administration has tapped to enforce the compact, could interpret the requirements broadly enough that even universities who are attempting to comply may find themselves in violation. Especially when it comes to the First Amendment concerns of free speech and free association, universities and their faculty, staff, and students may feel the need to be even more cautious in order to avoid repercussions. This is likely to have a chilling effect across the board, and especially on the “vibrant marketplace of ideas” that the compact mentions as such an important part of a college campus.

What does the law say?

According to legal experts, the current version of the Compact for Academic Excellence is unconstitutional on a number of important fronts. To start, Congress is the branch of government with the constitutional powers of legislation and spending. The president (and his executive departments) do not have the power to create new legal obligations or make sweeping decisions regarding university funding. In a legal analysis of the compact by UPenn law professors Amanda Shanor and Serena Mayeri, they explain the executive branch’s limitations further: “Under [the Supreme Court’s major questions] doctrine, an agency does not have power to take action on a question of major “economic and political significance,” unless Congress clearly authorizes the agency to do so.” The future of the country’s university system is certainly a matter of economic and political significance, and one that requires congressional and judicial oversight.

Another major constitutional issue with the compact is its treatment of the signatories’ First Amendment rights. This includes not only the universities’ administrators, who may make the decision to sign, knowing they are relinquishing the right to communicate and make decisions in certain ways (which is issue enough). Universities will also be signing on behalf of—and implicating—their entire institution, including faculty, staff, and students who likely have no say at all in these new restrictions. As Shanor and Mayeri write: “All viewpoints—conservative, liberal, or otherwise—are afforded the same constitutional protection and cannot be selectively favored or censored by the government.”

In another legal analysis, this one by Genevieve Lakier, a law professor at the University of Chicago, she identified an additional issue with the compact’s constitutionality: the unconstitutional conditions doctrine. Those aforementioned university administrators, knowingly signing their rights away, would not exactly be doing so freely. According to this doctrine, “the government may not condition access to government benefits on the recipient’s agreement to waive their constitutional rights, including the rights protected by the First Amendment.” In other words, the government is not allowed to force individuals to choose between retaining a right and receiving a government benefit.

Unfortunately, the fact of the compact’s unconstitutionality doesn’t necessarily mean that it can’t or won’t be used as a tool to control universities anyway. This compact is just the latest in a variety of messaging from the administration over the past year—from executive orders and memos, to speeches and social media posts—that are shaping attitudes inside and outside of higher education. So whether or not the compact is finalized by the intended date of November 21st, and regardless of who signs it, the administration is going to continue to find ways to pursue its polarizing priorities.

What are the wider implications?

Now that the Compact for Academic Excellence has technically been extended to all U.S. colleges and universities, it’s unclear what the repercussions will be for institutions that refuse to sign. White House spokesperson Abigail Jackson clarified to Inside Higher Ed that “the Administration does not plan to limit federal funding to schools that sign the compact.” Theoretically, this means that universities who refuse to sign are still eligible for federal funding, but whether they will receive less funding or less priority in comparison to signatories is unclear. The current version of the compact does state, rather ominously, that: “Institutions of higher education are free to develop models and values other than those below, if the institution elects to forego [sic] federal benefits.”

Depending on how the compact shakes out, and whether and how enforceable its terms are, it has the potential to lead to the widespread reorganization of U.S. higher education, and the redirection of billions of dollars in federal funds. On an individual level, the compact’s terms will be sure to impact faculty, staff, and students in a variety of ways, with the steepest effects felt by trans and queer students, international students, and students of color.

While a seemingly critical mass of education organizations and university administrators have signed onto statements denouncing the compact—including those from the American Council on Education and the American Association of Colleges and Universities—it’s hard to know if widespread refusal to comply will be enough to defang the compact and stymie its reach. But widespread refusal may be the best tool that higher education has, along with a continued steadfast commitment to intellectual freedom and the free exchange of ideas, unencumbered by government interference.

Final Thoughts

In 1957, during the era of McCarthyism, the Supreme Court heard the case of Sweezy v. New Hampshire, regarding academic freedom. In Justice Felix Frankfurter’s concurring opinion for that case, he enumerated the “four essential freedoms” of a university: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” These four freedoms are still vitally relevant today, and our colleges and universities deserve to exercise those freedoms to the fullest extent, and without fear.