Conditional Funding Can Raise Difficult Legal Questions. Trump’s Freezes Don’t
[Note: Tomorrow I'll be attending an all-day gathering of constitutional scholars and lawyers hosted by the Knight Institute at Columbia to discuss federal funding and the First Amendment. Each of the participants wrote a short paper. They are collected here. My contribution can be found here and is reproduced below.]
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In Agency for Int’l Dev. v. Alliance for Open Society Int’l, Inc. (2013), the Supreme Court invalidated a condition on federal spending. Under the challenged law, which provided money to combat the spread of HIV/AIDS throughout the world, a funded nongovernmental organization (NGO) was required to “have a policy explicitly opposing prostitution and sex trafficking.” The Court held that this condition violated recipient organizations’ right to free speech. Yet the Court’s opinion made clear that another condition on funding—forbidding the use of the money at issue “to promote or advocate the legalization or practice of prostitution or sex trafficking”—was unproblematic. According to the majority opinion by Chief Justice Roberts, there is a constitutionally dispositive difference “between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.”
The Chief Justice immediately acknowledged, however, that the dividing line between permissible conditions on how the government’s money is spent and impermissible leveraging of that money to regulate other speech “is hardly clear, in part because the definition of a particular program can always be manipulated to subsume the challenged condition.” Nonetheless, the Court thought the line necessary.
Necessary perhaps, but is it even possible? After all, as the Court’s spending cases sometimes recognize, money is fungible. At least within a single enterprise, additional resources for one unobjectionable program can be used to free up resources for another, more problematic, program.
Suppose that the philosophy department at a university has a long and ongoing history of tolerating racial harassment of students by prominent faculty members. Philosophers do not generally apply for or need federal grants to conduct their research, but faculty in the hard sciences do. As we have witnessed in recent months, even universities with very substantial endowments cannot simply replace lost federal grant money, so federal funding cuts to the hard sciences may result in the cancellation of research projects and layoffs of non-tenured laboratory and other support staff in the hard sciences. Universities might also respond to such cuts by reallocating at least some of their budgets. Belt-tightening across the university will mean that every department—including humanities departments, for which undergraduate enrollment has been declining for two decades—will feel the pain. Conversely, therefore, pre-cut federal funding of the hard sciences can be understood as cross-subsidizing the humanities. Thus, before any cuts occurred, a federal grant to study, say, how to develop climate-change-resilient strains of corn at the university that also houses the philosophy department that tolerates racial harassment could have been fairly characterized as a federal subsidy for conduct that violates Title VI.
It could have been so characterized, but, following the logic of Alliance for Open Society Int’l, it should not have been. We can read the line drawn by the Court in that case as establishing a qualitative standard. In this view, the difference between, on one hand, government permissibly refusing to fund objectionable speech (or conduct) and, on the other hand, leveraging funding to a program as a means of censoring unrelated speech is one of degree. At some point, the relation between the projects being funded and the objectionable speech (or conduct) is so attenuated that the government should be understood to be impermissibly leveraging the funding power. The Court’s frank acknowledgment that the line is difficult to draw does not fatally undermine the distinction for reasons familiar to nearly all lawyers. Legal constructs like proximate causation in tort have the same quality.
Whether a defendant’s negligence is a but-for cause of a plaintiff’s injury is a question about facts in the world (which is why but-for cause is also sometimes called cause in fact). The but-for cause inquiry asks whether the injury would have occurred without the negligence. Proximate cause, by contrast, is a legal conclusion (which is why proximate cause is also sometimes called legal cause) about the relation between the negligence and the injury, reflecting a normative judgment about foreseeability and other factors.
So too with the line between permissible government refusal to subsidize objectionable speech (or conduct) and impermissible government leveraging of the funding power to achieve censorial ends it could not constitutionally achieve directly. That the distinction reflects a normative judgment rather than simply making a factual claim does not render it irredeemably problematic.
Accordingly, application of the so-called unconstitutional conditions doctrine as described in Alliance for Open Society Int’l results in the conclusion that most of the Trump administration’s funding cutoffs to universities violate the First Amendment. Whatever line-drawing problems might exist in close cases, these are not close cases. There is no indication that the administration is concerned that by funding research into cancer, heart disease, and infectious diseases (to name three grants highlighted on the Harvard website in early May 2025), it is also funding antisemitism or unlawful racial preferences—except in the remotest sense that clearly falls on the impermissibly leveraging side of the Alliance for Open Society Int’l line.
Notably, we can reach that conclusion without giving any special weight to the fact that the cutoffs to Harvard and other universities infringe academic freedom. Alliance for Open Society Int’l did not involve a university or any claim of academic freedom. The plaintiffs were NGOs asserting the same First Amendment rights that any individual or organization could assert.
Does the fact that many of the funding cuts from the Trump administration target universities render them unconstitutional for the additional reason that they infringe academic freedom? To make that question concrete, suppose that the Trump administration makes explicit what has heretofore been mostly implicit: that federally funded universities can no longer offer courses in or sponsor research on particular topics. Imagine that the government agrees to unfreeze a university’s federal funds only on the condition that the university end classes in and research on critical race theory, human evolution, and/or climate change. In light of the specific targeting of academia, is that constitutionally objectionable in ways that go beyond the objection that a garden-variety NGO would be able to lodge in complaining about improper leveraging under Alliance for Open Society Int’l?
Put more generally, is academic freedom itself part of the First Amendment? I would like to think the answer is yes, but the relevant precedents do not go as far as they might.
In Keyishian v. Board of Regents (1967), the Supreme Court stated that academic freedom is “a special concern of the First Amendment.” However, the majority opinion in Rust v. Sullivan (1991), purported to reaffirm that principle but in doing so arguably weakened it. The Rust Court stated “that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.”
That language could be taken to imply that the only limits on conditional funding to universities are the vagueness and overbreadth doctrines. So, would a sufficiently precise and narrow funding condition forbidding teaching of and research into critical race theory, evolution, and/or climate change pass constitutional muster? Although lower courts have found special protection for academic freedom in the First Amendment, the Supreme Court still has not definitively resolved the issue. Fifteen years after Rust, in Garcetti v. Ceballos (2006), the Court expressly declined to address the question of whether faculty at public universities have any special protection against censorship, acknowledging only that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”
Is the argument to which the Garcetti Court alluded but did not address persuasive? I would hope so, but the Supreme Court cases to date are not dispositive. Moreover, recognizing a special First Amendment right of academic freedom for universities and faculty would cut against the grain of other cases denying any special First Amendment protection for particular kinds of institutions. Despite the fact that the First Amendment protects not only freedom of speech, but also freedom of the press, Branzburg v. Hayes (1972), rejected a reporter-source privilege rooted in the First Amendment, while Zurcher v. Stanford Daily (1978), rejected a heightened showing of need for searches targeting journalists.
Eventually the Supreme Court may decide whether the First Amendment provides any concrete—as opposed to rhetorical—protection for academic freedom beyond free speech doctrines that apply to all actors. In the meantime, however, academic institutions currently being targeted by the Trump administration can point to at least five ways in which the funding cutoffs are unlawful.
First, as discussed above, under Alliance for Open Society Int’l, the excessive and unrelated cutoffs fall on the impermissible leveraging side of the line. Second, as I and others have explained at greater length elsewhere, the administration has followed none of the statutory procedures and limitations that are supposed to precede any funding cutoff. Third, because Congress, not the president, has the power of the purse, the violation of the statutory requirements means that the president’s unilateral and ad hoc funding freezes exceed the scope of any delegated authority and thus violate separation of powers. Fourth, it is apparent in the case of the escalating actions taken against Harvard that the funding power is being used to retaliate for statements in opposition to the administration in violation of Harvard’s First Amendment rights. And fifth, insofar as the administration is demanding that recipients of federal funds suppress the speech of third parties, it violates the free speech rights of those third parties—a principle the Supreme Court unanimously reaffirmed in National Rifle Assoc. v. Vullo (2024).
Last year, I elaborated on a version of that fifth point in discussing government interpretations of Title VI that threatened to make private universities an instrument of censoring students whose protests against the Gaza war were exercises of protected free speech. I raised that concern in response to policies adopted by the Department of Education under President Biden. The Trump administration’s demands continue along the same lines but much more aggressively and intrusively.
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The proper scope of the unconstitutional conditions doctrine—at issue in a case like Alliance for Open Society Int’l—has confounded lawyers, judges, and scholars for decades. Meanwhile, there is a widely shared and longstanding sense that academic freedom has some relation to free speech, but there is little agreement about what exactly that relation consists of. These are interesting and important questions, but for now, they will remain theoretical.
The important question for now is not whether the Trump administration’s use of the funding power is lawful. For multiple reasons, it plainly is not. The urgent question now is whether any combination of universities, lawyers, courts, and public opinion can rein in the Trump administration before it does irreparable damage to American academia, the millions of people who benefit from discoveries and innovations made possible by federally funded research, and the rule of law.