The District Court Opinion in the AAUP Case Challenging the Columbia Funding Cutoff Gets Just About Everything Wrong
Last week, Federal District Judge Mary Kay Vyskocil dismissed the lawsuit filed by the Association of American University Professors (AAUP) and American Federation of Teachers (of which the former is a subsidiary) that sought to restore funding to Columbia University on the ground that President Trump’s withholding of federal grant money was unconstitutional retaliation for unpopular speech on Columbia’s campus and violated federal statutory requirements for funding cutoffs for failure to comply with Title VI’s anti-discrimination mandate. The core of Judge Vyskocil’s opinion is that the grants at issue were made to Columbia, not to the AAUP members who are the principal investigators (PIs) conducting the research funded by those grants. Thus, she concludes, the plaintiffs lack Article III standing, so there is no jurisdiction to hear the case. As I explain below, that holding is wrong. As I also explain below, the opinion contains dangerously ingenuous dicta about Title VI and displays a shocking lack of appreciation for separation of powers.
Standing
Judge Vyskocil recognizes that an association has standing to sue for the injuries of its members. AAUP and AFT identified specific Columbia faculty members whose research has been cut. Yet Judge Vyskocil concludes that they have not been injured. Why not? The short answer is that she has a completely unrealistic understanding of how federal-grant-funded research operates. She paints a picture in which the federal government contracts with universities and then those universities—completely independently—decide who will carry out the grant-funded research and how.
Having applied for and received federal grants in the past, I can say that’s wholly inaccurate. PIs conceive the research programs, have primary responsibility for writing the grant proposals, and execute the research projects the grants fund. Yes, as a formal matter, the contract is between the funding agency of the federal government and a university, but as a practical matter, the grant is to the research team through the university.
In any event, even accepting Judge Vyskocil’s formalism, PIs suffer Article III injury when their grants are cut. Judge Vyskocil offers some reasons why she thinks that PIs are not third-party beneficiaries to the contracts between the government and the university. I think she might be wrong about that, but even if she’s right as a matter of contract law, that is not the proper question for Article III standing. One can have standing to sue for injury even without being a third-party beneficiary under contract law. Think about a products liability case by a pedestrian suing an automobile manufacturer in which the plaintiff alleges that the defendant built a car with faulty brakes, leading to a collision that caused the plaintiff injury. The plaintiff may be able to recover in tort even though they’re not a third-party beneficiary of any contract with the defendant manufacturer. So too here: none of the causes of action that AAUP and AFT alleged sounds in contract, but that doesn't preclude relief on other grounds, including under the Administrative Procedure Act.
Judge Vyskocil’s conflation of contract law and standing might be justifiable (if sloppy) as part of a ruling about traceability. In order to have standing, a plaintiff’s injury must be traceable to the defendant’s allegedly unlawful conduct. Judge Vyskocil says that the AAUP and AFT members whose grants were cut won’t suffer injury unless Columbia in turn declines to pay them. She writes:
Plaintiffs have not demonstrated that it makes a difference to their members whether the funding for their research and salaries comes from American taxpayers, non-party Columbia’s multi-billion-dollar endowment, the largess of Columbia’s donors, or the eye-popping tuition bills paid by Columbia students . . . . Insofar as Columbia elects not to use its various private resources to fund specific research and personnel, Plaintiffs’ members’ quarrel is with Columbia.
Either Judge Vyskocil is unaware of or chooses to ignore the fact that much of any university endowment is restricted by law to particular uses. She also overlooks that the very reason why the Trump administration has chosen federal funding as the weapon with which to attack universities is that even the most well-endowed universities depend on those federal funds for much of the research they conduct. Universities around the country are laying off staff and making other cuts not by choice but by necessity. Moreover, even if no AAUP/AFT members are themselves laid off, layoffs to grant-supported staff or, as has happened numerous times, stop-work orders regarding their research, injure them in their professional capacity.
Thus, Judge Vyskocil’s conclusion that there is no injury to AAUP/AFT members is flatly wrong. That means that her standing holding is wrong. AAUP and AFT have associational standing to assert the injuries of their members, full stop.
Even if they didn’t, they could still have standing in their own right, but Judge Vyskocil denies the plaintiffs standing to assert their institutional interests because she says that their “core business is to be labor unions.” That is arguably true of AFT, but it certainly isn’t true of AAUP. I’m an AAUP member. (I'm also an AFT member but only because AAUP members are automatically also AFT members.) AAUP does not bargain collectively on behalf of any bargaining unit to which I belong. I’m a member because its mission aligns with my principles. AAUP was founded for the purpose of defending academic freedom, which remains its “core business.” That Judge Vyskocil doesn’t see the threat to academic freedom from the actions of the Trump administration against Columbia and other universities says much more about her ideological blinders than it says about AAUP.
Title VI Dicta
In addition to her erroneous standing ruling, Judge Vyskocil peppers her opinion with dicta about the merits. The plaintiffs allege, among other things, that the funding cutoff was illegal because the administration did not follow any of the statutory requirements for policing alleged Title VI violations. Those allegations closely parallel arguments I have made in various fora (including here, here, and here).
Judge Vyskocil responds by repeatedly and ingenuously accepting the Trump administration’s assertions that it didn’t cut off funds under Title VI but under separate regulatory authority incorporated in some grants allowing them to be terminated if "an award no longer effectuates the program goals or agency priorities. 2 C.F.R. § 200.340(a)(4)." Her own analysis on this point is self-defeating. Quoting the government’s representations, Judge Vyskocil writes:
On March 7, 2025, Defendants the Department of Justice (“DOJ”), HHS, the DOE, and the GSA publicly announced the “cancellation of approximately $400 million in federal grants and contracts to Columbia University due to the school’s continued inaction in the face of persistent harassment of Jewish students.”
She also writes that
the agencies informed Columbia that it was inconsistent with Executive Branch priorities and no longer convenient to give hundreds of millions of taxpayer dollars to an institution that, in the agencies’ assessments, had displayed “a disturbing lack of concern for the safety and wellbeing of Jewish students” and had “otherwise fail[ed] to serve the best interests of the United States” in its uses of Americans’ money.
The alleged toleration of antisemitism falls within the administration’s claim that Columbia is in violation of Title VI, which should trigger the statutory procedural requirements the Trump administration ignored. Note that the only indication that grant cutoffs were for any reason other than Columbia’s toleration of antisemitism is the unsupported insertion of the word “otherwise” in addition to the other allegations. But surely the naked allegation that a grant is being terminated for some unspecified misalignment with an administration’s priorities cannot suffice to take a cutoff wholly outside the procedural regime mandated by Title VI. If it did, then the regulation allowing termination for lack of alignment with agency priorities would allow an administration to utterly circumvent an important statutory safeguard Congress attached to the exercise of its spending power.
Separation of Powers
The acceptance of near-absolute executive power is also on display early in Judge Vyskocil’s opinion, where she reveals both her culture-war instincts and her limited comprehension of our system of government. She writes:
With no apparent sense of irony, lawyers for an organization called “Protect Democracy” insist that a district court judge should order the Executive Branch immediately to restore the flow of taxpayer dollars to an elite university, which funding Defendants represent is inconsistent with the priorities of the duly elected President of the United States.
It would indeed be ironic for an organization called “Protect Democracy” to ask a federal judge to allocate funds to an elite university (or any other person or entity) in the teeth of a decision by Congress not to fund it, but of course that is not at all what the case is about. This case is about a president abusing the power delegated to him by Congress.
Congress, not the president, has the constitutional power of the purse, and it exercised it in a way that places specific restrictions on the ability of the executive branch to tinker with appropriations upon allegations of civil rights violations. There is nothing undemocratic about petitioning a court to order the executive to comply with the law—unless one thinks that the president is an elected king who can rule by decree regardless of what laws Congress has enacted pursuant to its Article I powers. If that is Judge Vyskocil’s view, however, she could have saved readers of her opinion some time by stating so forthrightly and dismissing the case on the ground that Donald Trump and his administration are simply beyond the reach of any law, including the Constitution he swore to preserve, protect, and defend.
-- Michael C. Dorf