Introduction

On October 1, 2025, the U.S. Secretary of Education asked nine institutions, including six private schools (Brown University, Dartmouth, Massachusetts Institute of Technology (MIT), University of Pennsylvania (Penn), University of Southern California (USC), and Vanderbilt University) and three state universities (the Universities of Arizona, Texas, and Virginia), to join a “Compact for Academic Excellence in Higher Education.” The Secretary wrote that signatories would receive “multiple positive benefits” “including allowance for increased overhead payments where feasible, substantial and meaningful federal grants, and other federal partnerships.” The compact threatens the withdrawal of federal government benefits—including research funding, access to student loans and grant programs, non-profit tax status, and approval of student and other visas—if the targeted institutions do not agree to and comply with its terms. The administration described the proposed compact as “largely in its final form” but invited “limited, targeted feedback to ensure mutual alignment” by October 20 with the aim of having a signed agreement by November 21. After MIT rejected the compact, the government asked all universities to join it.

This memo provides a brief legal analysis of the proposed compact. As explained below, the compact is unlawful and unconstitutional. It violates the First Amendment rights of freedom of speech, association, and academic freedom; the separation of powers and constitutional constraints on executive power; constitutional limits on federal spending power; equal protection; and due process. The compact contravenes federal civil rights laws and would require public universities to violate the Constitution. While beyond the scope of this memo, the compact also infringes various state constitutions and state laws.

The compact is unprecedented. It would place both private and state universities under invasive federal control, allowing the government to dictate acceptable fields of study and academic departments as well as the appropriate mix of viewpoints among faculty, students, and staff. The compact threatens that universities that do not agree to its terms will lose federal funding. Though stated in more temperate language, the compact’s demands are more extreme than those issued to Harvard, over which it felt it had no choice but to sue. Adopting the compact would destroy academic freedom and university autonomy and undermine the expertise and academic excellence that have made American higher education the envy of the world. Regardless of the merits of the compact’s individual policy proposals, they should not be imposed by fiat or accomplished through a federal takeover of institutions of higher education.

Legal Analysis

The First Amendment and Unconstitutional Conditions

The compact blatantly violates the First Amendment.

Universities enjoy First Amendment rights—including the rights to speech, association, and academic freedom—as do their faculty, staff, and students. The First Amendment prohibits the government from discriminating among viewpoints or using government power to favor or disfavor certain ideas. “If there is any fixed star in our constitutional constellation,” the Supreme Court has emphasized, “it is that no official, high or petty, can prescribe what shall be orthodox” in the world of ideas. The First Amendment protects the right to disagree strenuously and sharply, including to belittle views with which we disagree, and protects much that we might describe as hate speech in public discourse, including offensive, demeaning, and hurtful speech. “[I]mplicit in the right to engage in activities protected by the First Amendment [is also] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”

The Constitution protects academic freedom as “a special concern of the First Amendment.” The Supreme Court first considered academic freedom during the Red Scare:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.

As Justice Frankfurter’s influential concurrence in the same case elaborated:

A university is characterized by the spirit of free inquiry, its ideal being the ideal of Socrates—‘to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs. Dogma and hypothesis are incompatible, and the concept of an immutable doctrine is repugnant to the spirit of a university. . . .It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘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.’

The Constitution not only protects these rights but also prohibits the government from conditioning benefits—including discretionary benefits to which a recipient has no right—on relinquishing or waiving their constitutional rights, First Amendment or otherwise. A number of the compact’s provisions contain unconstitutional conditions.

The compact allows universities to develop “models and values” different from those of the Trump administration, but only if they “forego federal benefits.”  This is the definition of an unconstitutional condition: requiring universities to give up their First Amendment rights—and those of their community members—in order to receive benefits from the government. 

The compact’s second provision explicitly instructs universities to insulate a set of viewpoints it ambiguously terms “conservative ideas” from criticism the government deems to “punish” or “belittle” such ideas. All viewpoints—conservative, liberal, or otherwise—are afforded the same constitutional protection and cannot be selectively favored or censored by the government.

The compact would impose extraordinary and ongoing federal intrusion into university governance. The compact mandates that universities submit to governmental “assessment” of the viewpoints of faculty, students, and staff in every field, department, school, and teaching unit. It instructs universities to “transform[] or abolish[]” academic departments at the government’s direction and would place the views of the faculty and student body under federal supervision, empowering the government to determine the approved mix of faculty and student viewpoints and the permissible subjects of academic inquiry.  

The compact would replace expertise and academic merit with government dictates. Universities could be required to hire epidemiologists who do not believe in vaccines, or scientists who think climate change is a hoax, for example, so as to ensure the government’s preferred “spectrum of ideological viewpoints.” These conditions not only are antithetical to the mission of higher education, but also violate universities’ speech, academic freedom, and associational rights and those of their faculty, staff, and students. Provisions one and five, which prescribe certain admissions requirements and grading standards, violate the academic freedom and associational rights of universities and their faculty.

The compact requires universities to establish “conditions of civility” and to regulate “threatening” speech. Uncivil speech and much threatening speech is protected by the First Amendment. In the 1990s, more than 350 colleges and universities adopted hate speech codes. Every one that was challenged in court was declared unconstitutional.  The government may not limit or punish such speech unless (1) a speaker directs a threat to a person or group with the intent of placing the victim in fear of bodily harm or death, or (2) the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. In certain contexts, the government may also limit harassing speech that is sufficiently severe or pervasive to create a hostile environment. The compact’s requirements go well beyond those limits.

Provision four requires “all university employees, in their capacity as university representatives,” to abstain from “actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university.” It thus forbids university leaders or anyone speaking in their official capacity from expressing views on any subject not deemed by the federal government to have such an impact. It is one thing for universities voluntarily to adopt institutional neutrality policies. It is quite another to impose them by government fiat. A clearer unconstitutional condition on speech is difficult to imagine. 

The Court also has made clear that when the government provides funding for an array of other parties’ speech, it may not discriminate based on the viewpoint of the speech expressed. By contrast, when the government funds its own government speech, it is entitled to say what it wishes. Even in that context, however, the government may not limit what the recipient says using private funds. The government, for example, can choose only to fund family planning projects that do not include abortion counseling. It cannot, however, bar a recipient of those (family planning) funds from expressing the message the government refuses to pay for (abortion counseling) with other monies. The Court has emphasized that the government cannot “leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints.” Nor can it allocate subsidies in a manner that “aim[s] at the suppression of dangerous ideas.” Just as under the unconstitutional conditions doctrine, the government cannot require, as a condition of certain funding, that a recipient relinquish its First Amendment rights to say whatever it would like on its own dime.

Further, the compact would require the targeted state schools (Virginia, Texas, and Arizona) to violate the First Amendment by promoting certain views (“conservative ideas”) that the federal government favors and violating the speech, association, and academic freedom rights of their community members. Such favoritism and censorship by state actors is clearly forbidden by the Constitution.

In sum, the compact’s demand that core academic determinations and the appropriate spectrum of views of faculty, students, and administrators rest with the federal government rather than with university faculty and administrators is anathema to the First Amendment and contrary to universities’ core commitments to research excellence and the free exchange of ideas. 

Separation of Powers

The compact violates constitutional limits on executive power and contravenes separation of powers principles.  The Supreme Court has repeatedly emphasized that the doctrine of separation of powers “serves not only to make Government accountable but also to secure individual liberty,” to “preclude the exercise of arbitrary power,” and “to save the people from autocracy.” It is well-established that “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.”

When a president acts “pursuant to an express or implied authorization of Congress, his authority is at its maximum.”  A president may act unilaterally only by relying on “independent” constitutional powers. The executive may disregard “the expressed or implied will of Congress” only if the Constitution grants the president powers “at once so conclusive and preclusive” as to “disabl[e] the Congress from acting upon the subject,” such as commander-in-chief war powers.

Congress, not the president, is given the constitutional powers both to legislate and to spend (i.e., the power of the purse). Neither the Constitution nor federal law authorize the president or the Department of Education (DOE) to issue the compact unilaterally as they did. No federal law conditions federal research funding on the compact’s requirements, gives the DOE the power to impose such requirements as conditions of funding, or authorizes the DOE to withhold money Congress has authorized for research funds if universities do not meet these requirements. While the president has more expansive prerogatives in military and foreign policy, the executive branch does not have free constitutional rein to do whatever it likes with regard to entirely domestic issues like the funding of U.S. research institutions. It derives any power in these domains from federal laws adopted by Congress, which the executive is flouting. The compact’s demands, issued unilaterally by the DOE, thus violate the constitutional limits on executive power and separation of powers principles.

Over the last two decades, the Supreme Court has adopted several doctrines aimed at constraining the power of federal agencies like the Department of Education. Were the DOE or another executive branch agency to argue that a statute’s general language about federal funding allows it to impose the compact’s conditions under any circumstances—let alone by fiat rather than through the normal administrative rulemaking process —it would almost certainly be impermissible under the Court’s major questions doctrine. Under that 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. Indisputably, the compact’s requirements, which would fundamentally reorganize U.S. higher education and redirect billions of dollars in federal funds, among other things, involve questions of “economic and political significance.” The absence of clear congressional authorization means the DOE’s compact contravenes limits on executive power and the separation of powers.

Limits on Federal Spending Power

Under principles of federalism and the Tenth Amendment, numerous constitutional doctrines protect states from undue interference by the federal government. One of the most important of those principles holds that the federal government may not use its spending power to coerce a state’s obedience rather than merely incentivize or encourage it. The federal government can condition funding to states only if (1) the conditions are clear, (2) the conditions relate to the spending program’s purpose, (3) the conditions are not independently unconstitutional, and (4) the deal is not unduly coercive.

The compact breaches those principles. Its conditions are vague and undefined, are unrelated to any statutory funding scheme, and impose the administration’s preferred conditions in place of congressional priorities, generally research excellence. The conditions are unconstitutional on multiple grounds (as discussed above) and would require states themselves to engage in unconstitutional behavior such as violating the First Amendment rights of faculty, staff and students. And the conditions are severely coercive. In the Affordable Care Act (ACA) case, the Supreme Court ruled that conditioning Medicaid funds on whether a state expanded its Medicaid programs was an unconstitutional “gun to the head” because it would threaten approximately 10% of a state’s budget. Given the magnitude of federal funds’ contribution to most research universities’ bottom line and to their ability to function as research institutions, the threat of forcing universities to “forego [sic] federal benefits” easily appears unconstitutionally coercive. There is thus no doubt that the compact is unconstitutional as applied to public universities.

The Supreme Court has not addressed whether each of these limits—(1) unambiguous conditions; (2) relatedness; (3) no independent constitutional violation, and (4) bar on coercion—apply to federal funding of private recipients. Because they are grounded in principles of contract and individual liberties rather than federalism, the requirements that the conditions be clear and not independently unconstitutional, at least, appear to apply to the funding of private institutions and to be violated by the compact. If the bar on coercive federal spending conditions also applies to private recipients, the compact would appear to exceed that limit. Federal funding constitutes over 20% of Penn’s annual academic budget and nearly 50% of MIT’s, for example, which dwarfs the 10% of the budget the Supreme Court found to be “dragooning” and “a gun to the head” in the ACA case.

Equal Protection and Civil Rights Statutes (Titles VI, VII, and IX)

The compact contains interpretations of the Constitution and civil rights statutes that violate or go far beyond established law. It not only seeks to bind universities to ambiguously defined terms and principles that contravene current precedent but also incorporates provisions that would afford the federal government virtually unlimited discretion to reinterpret applicable law in the future. The compact’s discrimination-related provisions thus leave institutions vulnerable to liability from all directions.

The compact declares that “no factor such as sex, ethnicity, race, nationality, political views, sexual orientation, gender identity, religious associations, or proxies for any of these factors shall be considered, explicitly or implicitly,” in student admissions or financial support, with exceptions for single-sex schools and religious institutions. This provision lumps together categories that are treated distinctly and differently under federal and state constitutional and statutory law, with race-based classifications usually receiving the highest level of judicial scrutiny.

Even so, the compact’s ban on the “consider[ation]” of race outpaces established law. The Court has distinguished between race-based classifications, which are presumptively impermissible, and measures that do not classify on the basis of race. In SFFA v. Harvard, Chief Justice Roberts called universities’ diversity-related interests “worthy” and “commendable.” SFFA specifically allows for the consideration, for example, of essays that discuss how race has affected applicants individually.

The compact’s prohibition on “proxies” also reaches far beyond SFFA, where Justice Kavanaugh’s concurrence emphasized that “governments and universities still ‘can, of course, act to undo the effects of past discrimination in many permissible ways that do not involve classifications by race.’” Factors that universities routinely consider in admissions, including socioeconomic status, often correlate with race and may be used, among other purposes, to increase access for underrepresented groups. Read literally, the compact implies that socioeconomic status may be an impermissible consideration not only in admissions, but also in “financial support”—which presumably includes scholarships, loans, and other forms of financial aid, suggesting that allocating need-based aid is forbidden.  

The compact’s definition of sex, too, contradicts or is in profound tension with established law. It requires that signatories “commit to defining and otherwise interpreting ‘male,’ ‘female,’ ‘woman,’ and ‘man’ according to reproductive function and biological processes” and implies that “sex” is an “immutable characteristic.” This definition appears to deny the existence of trans, non-binary, and intersex persons. In doing so, it contravenes federal employment discrimination law: the Supreme Court has defined sex discrimination to include sexual orientation and gender identity under Title VII of the Civil Rights Act. Whether the same definition of “sex” applies to other federal nondiscrimination requirements remains an open legal question; the Biden administration and many lower courts have found that it does, while others have not. Many states and localities, including the jurisdictions in which several of the nine targeted institutions are located, ban discrimination based on gender identity. Depending on location, then, a university that follows the compact’s requirements regarding sex segregation may violate federal, state, or local laws.

Although the compact refers in passing to sports, bathrooms, and locker rooms, the “defin[ition]” and “interpret[ation]” of sex/gender may apply to everything from what can be taught in classrooms, to who can live in college dormitories, to what health care university hospitals can provide, to what scientific and medical research is permitted. In addition to potential statutory violations, the federal government and public universities that comply with the compact risk violating myriad constitutional provisions, including the First Amendment (see above) and the equal protection clause. The Court has yet to decide what standard of review applies to state action that discriminates against transgender people. But even under the lowest level of judicial scrutiny, rational basis review, it is well-established that laws and policies may not be based on a “bare desire to harm a politically unpopular group.” Many of the Trump administration’s actions against transgender persons use denigrating language that a court could find fails this standard.

Finally, federal law does not limit educational institutions’ ability to consider an applicant’s views in admissions. Indeed, the First Amendment likely protects private institutions’ ability to consider such views, while already forbidding state schools from doing so. Further, the compact’s prohibition on consideration of “political views” or “nationality” conflicts with its provisions that require protection for “conservative views” and place limits on international student enrollment, including based on views deemed “anti-American” or inconsistent with “western values.”

Such ambiguities and contradictions sow confusion about what is permitted and prohibited. The compact commits signatories to “adopt policies consistent with all legal requirements, including those of the Department of Education’s Office for Civil Rights,” whose interpretations are subject to change and often depart from or conflict with established law. Together the compact’s provisions place universities in a catch-22, exposed to potential liability if they comply with its terms and also if they don’t.

Due Process

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” A regulation is unconstitutionally vague if it causes “men of common intelligence . . . necessarily [to] guess at its meaning and [to] differ as to its application.” The degree of precision required by the Constitution increases with the gravity of the penalty and the importance of the rights at stake—particularly, where, as here, First Amendment freedoms are concerned.

Many of the key terms of the compact are unconstitutionally vague. Among those nebulous terms are: “conservative ideas,” “civility,” “belittle,” “support,” “grade … inflat[ion], or deflat[ion],” and “proxies” for admissions purposes (for example, is socioeconomic status or zip code a proxy?). The compact similarly leaves unconstitutionally vague the “broad spectrum of viewpoints” the government will require every school, department, and teaching unit of the university to contain and the degree of “direct impact upon the university” a societal or political event must have in order for a university leader to be permitted to speak about it. These are “classic terms of degree,” and as such, provide “no principle for determining when … remarks [or actions] pass from” the safe to the forbidden side of the line.

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to [government enforcers] for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.Third, but related, where a vague statute “abut(s) upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of (those) freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”

The compact offends these basic constitutional values. It leaves potential signatories unaware of what they are binding themselves to or how to avoid punishment; invites arbitrary and discriminatory enforcement; and chills protected speech, association, and academic freedom.

Global Concerns

Taken as a whole, the compact would effectively abolish academic freedom and place U.S. higher education, both private and state institutions, under federal control. Its demands are contrary to the mission of American higher education: expanding knowledge, research excellence, and the free exchange of ideas. 

The compact commits signatories to vague, ambiguous, and internally contradictory terms and conditions. Because the compact leaves the federal government to define and enforce such overbroad terms, signatories of the compact would bind themselves to a moving target, raising attendant dangers of arbitrary and discriminatory enforcement. The real possibility that conflict will arise between executive definitions and judicial interpretations or state or local legal requirements exposes signatories to liability from all sides. The compact thus would put universities in an impossible, no-win compliance position.

The punishments the compact would impose, should the government find a signatory out of compliance, are both draconian and far exceed what the government could levy under governing federal law. The compact would allow the government to withdraw benefits or exact penalties on institutions without the regular processes required under governing statutes—and indeed, the compact gives the Department of Justice complete discretion to review and find an institution in noncompliance without any required process, standards, oversight, or other check.

Upon the first finding of willful or negligent noncompliance, the compact mandates the withdrawal of all federal benefits for no less than one year. Subsequent violations result in loss of all federal benefits for no less than two years. Upon the government’s finding that a university has breached the compact, it must return all federal monies already received and must reimburse, upon request, any private contributions made during years the institution was found to be out of compliance.

When read in tandem with the recent presidential memorandum on domestic terrorism, the compact’s financial stakes increase.  That memo appears to import the broad program of surveillance, asset freezes, and limited process—developed in the context of the war on terror to deter and disrupt foreign terrorist organizations—into the investigation and fund-freezing of domestic organizations and individuals. The memo conflates “‘anti-fascist’ rhetoric” and “extremism on migration, race, and gender”—including in “educational institutions”—with “domestic terrorism.” The compact requires universities both to discipline “support for entities designated by the U.S. government as terrorist organizations” and to engage in detailed and intrusive reporting regarding its funding streams.

By allowing invasive oversight of external funding streams, capping the proportion of foreign undergraduate students, and limiting the ability of institutions to raise tuition, the compact also would make U.S. higher education more financially dependent on federal funds, drawing it further under the government’s thumb.

Signatories would relinquish their autonomy, their constitutional freedoms, and the freedoms of their community members—and they would face potentially severe financial sanctions and liability—all without the guarantee of any federal benefit other than a vague assurance of preferential treatment.

Conclusion

The compact places university leaders in an unimaginably difficult position. To agree to the compact, however, would devastate the mission, values, and independence of American higher education. It would strangle the academic freedom that has spurred the vast innovation, economic growth, and advances in human knowledge that U.S. higher education has created and spurred. Universities should both individually and collectively refuse federal takeover and unequivocally reject the compact. In doing so, they will defend their own constitutional and statutory freedoms, those of their community members, and our constitutional future.

 

The authors write in their individual capacities, listing institutional affiliations for identification purposes only.