David Pozen writes:

Earlier this evening, Columbia University announced an agreement with the Trump administration in which Columbia makes a host of concessions in order to restore its eligibility for federal funding. The agreement is already being described as “unprecedented,” “the first of its kind.” These descriptions are true but ambiguous, because the agreement breaks new ground on any number of levels.

For instance, the agreement marks the first time that antisemitism and DEI have been invoked as the basis for a government-enforced restructuring of a private university. The agreement was engineered by a novel collaboration among the Department of Education, the Department of Health and Human Services, the General Services Administration, and the White House, which pooled their resources to ratchet up the pressure on Columbia (with some help on the side from the Department of Justice). The agreement is also the first to require a university to fork over money to the government as a condition of receiving money from the government, bringing a new brand of pay-to-play into the world of scientific and medical research.

And let’s not forget that the agreement grows out of the executive branch’s first-ever cutoff of congressionally appropriated funds to a university, so as to punish that university and impel it to adopt sweeping reforms, without any pretense of following the congressionally mandated procedures. Lawyers have been debating the exact circumstances under which the executive branch may freeze particular grants and contracts to particular schools. Yet as far as I’m aware, no lawyer outside the government has even attempted to defend the legality of the initial cutoff that brought Columbia to its knees and, thereafter, to the “negotiating” table.

In short, the agreement gives legal form to an extortion scheme—the first of its kind!—that defies the relevant statutes as well as the constitutional separation of powers and the First Amendment. [Continue reading…]