This memo was written and sent to Yale's President, general counsel, and board of trustees shortly after the University's negotiations with the Trump administration over allegations of discrimination in admissions were publicly reported. We publish it here in its original form.
MEMORANDUM
To: President Maurie McInnis and General Counsel Alexander Dreier
From: Serena Mayeri and Amanda Shanor
Re: Analysis of Potential Trump-Yale Deal
Date: June 30, 2026
Introduction
We write as legal scholars who have studied the Trump administration’s agreements with universities and other institutions, and as alumni who care deeply about Yale. We understand that Yale is under tremendous pressure and recognize the appeal of negotiating a settlement with the government in attempts to ward off the attacks faced by Harvard and other elite universities, including our own (the University of Pennsylvania). But we are gravely concerned about the potential implications of Yale reaching such a deal, even one that appears narrow in scope.
This memo briefly analyzes the concerns raised by previous agreements between the federal government and universities. We pay particular attention to the University of Virginia (UVA) agreement, which, like the Yale investigation, appeared to focus on race-related policies.
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The Trump administration has followed a consistent playbook in its negotiations with universities and other civil society institutions. First, the government threatens or imposes catastrophic financial consequences, such as funding cutoffs and other penalties. Next, the administration coerces institutions to agree to vague and often contradictory definitions of concepts such as discrimination, equality, sex, antisemitism, protest, and terrorism, and the scope of executive power (e.g., its authority to change the terms of the agreement, impose penalties not authorized by law, or enforce rules not found in law).
Several troubling features are common to the university agreements:
- First, the agreements bind schools to vague, shifting, and contradictory definitions of prohibited conduct that go far beyond and may violate established law.
- Second, even in the absence of external monitoring, the creation of possible personal civil and criminal liability for university leaders functionally ensures ongoing federal oversight and control.
- Third, these agreements exert a chilling effect on academic inquiry, institutional independence, political discourse, and free expression—values that lie at the heart of Yale’s mission.
- Fourth, university deals have not insulated schools from pressure or interference. If anything, they have invited further demands.
- Finally, these deals contain myriad unconstitutional and unlawful provisions. Overwhelmingly, universities and other institutions that have pushed back against similar pressure from the administration rather than signing agreements have been successful in court.
I. Vague, Ambiguous, and Shifting Definitions
Existing university agreements commit schools to legal definitions and interpretations that go beyond and sometimes violate established law. For example, UVA promised to follow the over- and under-inclusive definition of discrimination contained in (non-binding) July 2025 Department of Justice guidance. That guidance went far beyond the Supreme Court’s ruling in SFFA v. Harvard, which explicitly allows colleges to consider, for example, how an applicant’s race—“through discrimination, inspiration, or otherwise”—has affected their lives, and acknowledges diversity as a laudable goal. The DOJ guidance, in contrast, bars the use of race, sex, or other protected characteristics, “no matter the program’s labels, objectives, or intentions.” The guidance appears to prohibit the use of race-neutral “proxies,” including indicia of socioeconomic status. It bans criteria such as “cultural competence,” “lived experience,” “first generation” status, or “underserved geographic areas” if the government suspects they are being used to increase the representation of racial or other minorities.
The DOJ guidance is full of ambiguities and internal contradictions, creating uncertainty about what would and would not be considered a violation of the UVA agreement’s terms. For example, its broad definitions of unlawful discrimination could be read to prohibit reliance on virtually any criteria other than those that tend to decrease diversity, such as standardized test scores. An admissions boost—or even financial aid—to students who have experienced economic hardship, or to first-generation students, could be interpreted by the government to violate the agreement. Yale’s admirable leadership in creating programs to bolster first-generation students and those from low-income backgrounds could be read to run afoul of these strictures, especially if they disproportionately benefit students of color.
Perhaps more dangerously, because the DOJ guidance is internally contradictory, or at best subject to multiple interpretations—some of which violate established law—pledging adherence to it can expose the university to liability from all sides. Vagueness, ambiguity, and contradictory provisions are a feature of many of the government’s deals with universities, perhaps by design. For example, Brown’s agreement requires that Title VI be applied evenhandedly to all, but then promises targeted outreach to students from Jewish day schools. Some of the agreements prohibit discrimination based on national origin while requiring schools to hand over incriminating information about student visa holders. Some require (or purport to require) schools to abide by a definition of sex drawn from an executive order that departs from accepted science and violates federal and state laws that prohibit discrimination based on sexual orientation and gender identity. In the absence of judicial precedents that could inform the interpretation of these vague terms, there is no background understanding against which the university could reliably predict the agreement’s meaning.
Further, some of the agreements punish universities for following then-prevailing understandings of the law. For example, the Trump administration froze $175 million in federal funding to Penn because a transgender swimmer competed on the women’s swim team at a time when both Title IX and NCAA rules at least allowed and arguably required her participation. The Penn deal to restore funding thus rested on a retroactive application of the Trump administration’s reinterpretation of Title IX to proscribe actions whose permissibility had not previously been questioned.
II. Ongoing Federal Oversight and Control
The lack of formal external monitoring might appear to distinguish UVA’s agreement from other deals such as Columbia’s and Brown’s. The reality, however, is that the UVA agreement’s terms—similar to provisions of the Cornell and Northwestern deals—include ongoing federal oversight and control and expose university leaders to civil and criminal liability. The deals require that various administrators, including Presidents and members of boards of trustees, certify quarterly, under penalty of perjury, the university’s compliance with their terms. The administration’s declared intention to use the False Claims Act to prosecute “civil rights fraud” by universities and to encourage private qui tam actions to this effect mean that these provisions place university leaders—and potentially all employees responsible for signing grants—in serious legal jeopardy. This is particularly true given the ambiguities and contradictions described above.
The UVA deal, celebrated as a “constructive outcome” that upholds “the university’s principles and independence,” in fact subjected the university to even greater legal peril than if it had done nothing at all. It provided that if the university made underspecified changes related to “DEI” to the federal government’s satisfaction, in 2028 the administration would close open investigations into the university. Under the agreement’s express terms, the federal government remains free to open new inquiries at any time and to investigate noncompliance with the agreement itself, not just federal law. Further, the government reserves the right, at any time and for any reason, to terminate the agreement and to “pursue enforcement actions, monetary fines, or grant or funding terminations” pertaining to any past or future actions.
This may be the most dangerous aspect of these deals: they attempt to establish the executive’s sole, unlimited, and arbitrary power to say what the law is and what the Constitution means—and to impose its own shifting interpretations on institutions at will.
III. Chilling Effects on Academic Inquiry and Freedom of Expression
University agreements contain other troubling provisions that infringe the privacy, freedoms, and safety of university affiliates. Requirements include disclosure of information about students and university employees, including not only admissions-related data but also information about school policy violations that the government retains the prerogative to share across agencies and with law enforcement. References to the “prevention of terrorist financing” may appear to concern foreign funding. But they may also facilitate governmental attempts to impose broader censorship and legal penalties on universities, their donors, and community members pursuant to the President’s executive actions targeting those the government considers to promote “extremism on migration, race, and gender,” or “hostility towards those who hold traditional American views on family, religion, and morality,” as “domestic terrorists.”
These agreements often contain terms that purport to safeguard “academic freedom” and promise no government interference with curricula or freedom of expression. But if universities can face drastic financial penalties anytime the federal government decides that the institution is out of compliance with the agreement, the chilling effect on faculty, administrators, and students will inhibit free academic inquiry and robust political discourse—values that are core to Yale’s mission.
IV. Unconstitutional and Unlawful Demands
The government’s proposed Compact for Academic Excellence in Higher Education and individual university deals executed before and after contain many unlawful and unconstitutional terms. Many of their provisions violate 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. Some also infringe state constitutions and state laws.
These legal and constitutional flaws are important for at least two reasons. First, they mean that universities that enter such agreements accede to the government’s end run around the Constitution and the law as enacted by Congress and interpreted by the courts. Second, they suggest Yale might likewise be victorious in court should it decide to push back against the government’s demands, as schools such as Harvard, UCLA, and Penn have done.
We will note some common legal and constitutional infirmities here; a more complete legal analysis of the Compact may prove helpful in assessing a Yale deal.
- The First Amendment (speech, association, and academic freedom)
Universities enjoy First Amendment rights. The First Amendment prohibits the government from discriminating among viewpoints or using government power to favor or disfavor certain messages or associations. The Court also has made clear that when the government provides funding for other parties’ speech (such as research), it may not discriminate based on viewpoint. And it may not limit what the recipient says using private funds. 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. These principles protect universities against, inter alia, governmental efforts to impose or influence what is taught or researched or who teaches or researches (including as promoting “viewpoint diversity”); punish institutions presumed to be “woke” or otherwise out of ideological step with the administration; institute protest or other speech rules that go beyond narrow First Amendment exceptions (e.g., true threats, incitement, or severe-or-pervasive harassment); compel universities to disclose the personal information of faculty that, e.g., study certain topics or join particular groups; or collect information about syllabi or faculty viewpoints.
- Separation of powers and limits on executive power
The power to spend and to make law belong to Congress, not the President. With respect to entirely domestic issues like the funding of U.S. research institutions, the executive derives all power to act from Congressional statute, absent which executive action is unconstitutional. No statute authorizes the executive to impose the conditions on research funding, tax exempt status, or the like that the administration has sought by private agreement, still less by fiat rather than rulemaking. What is more, the recently developed major-questions doctrine likely demands clear congressional authorization, absent here. No federal law authorizes the executive to withhold money Congress has authorized for research funds if universities do not meet the administration’s demands. The current administration routinely has flouted procedural requirements for suspending federal funds under civil rights statutes such as Title VI and Title IX.
- Spending power limits
The government may attach conditions to federal funds only if the conditions are clear, related to the spending program’s purpose, not independently unconstitutional, and not coercive. Threats to withhold all federal support from a university dwarfs the roughly ten percent of a state budget the Supreme Court deemed “a gun to the head,” making related demands likely unconstitutionally coercive as applied to public universities. Many agreements sought from private universities violate the clarity and no-unconstitutional-condition limits that apply to private recipients.
- Equal protection / civil rights statutes
The government’s terms commit universities to rules the Constitution and civil rights statutes do not impose. In addition to reaching far beyond SFFA v. Harvard, the government’s terms often prohibit conduct the law permits or requires. For example, the executive-order definition of “sex” that some agreements incorporate departs from Title VII as construed in Bostock and from many states’ antidiscrimination laws, so compliance in one direction risks liability in another. Additionally, many agreements collapse distinct legal standards—for instance, treating race, sex, and national origin alike, whereas courts analyze these categories differently.
- Due process / void for vagueness
A condition is unconstitutionally vague when people of ordinary intelligence must guess at its meaning, and greater precision is required where First Amendment freedoms and severe penalties are at stake, as is generally true of key terms in university agreements. Terms like “proxies,” “DEI,” and undefined civility, conduct, or protest standards invite arbitrary and discriminatory enforcement and drive institutions to over-comply. This vagueness makes the certification requirements perilous: requiring university employees to certify compliance with standards whose meaning is unknown or shifts at the government’s discretion necessarily puts them at risk.
- Unconstitutional conditions
The Constitution not only protects the foregoing 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.
The agreements that the administration has sought with universities—and the actions they have taken to pressure them into agreement—include many of these unlawful or unconstitutional elements. For this reason, universities, law firms and institutions that have rejected the government’s coercive deals have been overwhelmingly successful in challenging them in court. Recognizing the high stakes for democracy and civil society, alumni, students, and faculty have rallied behind institutions that stand up for their rights, likely to the schools’ broader benefit—just as law firms that have refused deals have fared better on many metrics than those that have signed them.
Conclusion
We understand that the government’s pressure campaign places Yale and other schools in an unenviably difficult situation. But the existential nature of the threat is a reason not to consent to deals that amount, at best, to conditional reprieves of uncertain duration and value.
Universities that have made deals often face continued pressures and demands. Penn, for example, made an early agreement with the Trump administration a year ago and has been targeted on many fronts ever since.
Moreover, a deal with Yale will reverberate far beyond the university. The government undoubtedly hopes that other schools facing similar investigations will follow suit—increasing its leverage over higher education more broadly.
Yale should instead stand up for the Constitution and the rule of law. Schools and law firms that have pushed back have won an almost unbroken string of legal victories. A powerful coalition of faculty, students, and alumni united across ideological, disciplinary, and geographic lines last year to reject the administration’s “compact” for higher education, and Yale can expect similarly robust support from a growing network of supporters around the country should it defend its institutional independence.
Serena Mayeri, Professor, University of Pennsylvania Carey Law School (Yale J.D. and Ph.D, History) and Amanda Shanor, Associate Professor, University of Pennsylvania Wharton School (Yale B.A., J.D., and Ph.D., Law). We write in our individual capacities.
Agreement between the United States of America and the Rector and Visitors of the University of Virginia (Oct. 20, 2025), https://federalinfo.virginia.edu/sites/federalinfo/files/2025-10/US-University-of-Virginia-Standstill-Agreement-20251022.pdf [hereinafter “UVA Agreement”]. Press coverage often characterized UVA’s deal as focused narrowly on DEI. See, e.g., Press Release, U.S. Dep’t of Justice, The Justice Department Announces Agreement with University of Virginia (Oct. 22, 2025), https://www.justice.gov/opa/pr/justice-department-announces-agreement-university-virginia-0; ‘A fair deal or a ‘surrender? Stakeholders weigh in on Trump-UVA agreement, Higher Ed Dive (Oct. 24, 2025), https://www.highereddive.com/news/a-fair-deal-or-a-surrender-stakeholders-weigh-in-on-trump-uva-agreemen/803786/; What Did the University of Virginia Agree To?, Inside Higher Ed (Oct. 24, 2025), https://www.insidehighered.com/news/government/2025/10/24/what-did-university-virginia-agree. Supporters touted its terms that purportedly protected academic freedom and avoided external monitors or large monetary penalties. See UVA Agreement, supra note 1, at 1 (“Both Parties affirm the importance of and their support for academic freedom. The United States does not aim to dictate the content of academic speech or curricula, and no provision of this Agreement . . . shall be construed as giving the United States authority to dictate the content of academic speech or curricula.”). The reality, however, was very different.
Those threats have included, e.g., termination of federal funding, withdrawal of tax-exempt status; revocation of universities’ ability to enroll foreign students; cancellation of security clearances; imposition of a steep endowment tax; and suspension and debarment from eligibility for federal grants and student loans. See Kim Lane Scheppele, Bullying universities, The Contrarian (July 28, 2025), https://www.contrariannews.org/p/trumps-regulation-by-deal.
U.S. Dep’t of Justice, Guidance for Recipients of Federal Funding Regarding Unlawful Discrimination (July 29, 2025), https://www.justice.gov/ag/media/1409486/dl [hereinafter DOJ Guidance].
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 214–15, 230–31 (2023) (describing universities’ diversity interests as “worthy” and “commendable”).
DOJ Guidance, supra note 5, at 1.
Id. at 5, 8.
Id. at 2, 5, 8-9. The DOJ instructs schools: “Before implementing facially neutral criteria [such as “low-income”], rigorously evaluate and document whether they are proxies for race, sex, or other protected characteristics.” Id. at 8-9.
Resolution Agreement Between the United States and Brown University §§ B.6, C (July 30, 2025), https://www.brown.edu/sites/default/files/brown-and-united-states-resolution-agreement_July-30-2025.pdf [hereinafter “Brown Agreement”].
See, e.g., Resolution Agreement between the United States of America and Northwestern University 7 (Nov. 28, 2025), https://www.northwestern.edu/provost/docs/federal-updates/resolution-agreement-united-states-northwestern.pdf [hereinafter “Northwestern Agreement”].
Exec. Order No. 14,168, 90 Fed. Reg. 8,615 (Jan. 30, 2025) (defining “sex” as, inter alia, “an individual’s immutable biological classification as either male or female”).
See, e.g., Northwestern Agreement, supra note 11, at 2.
See Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces the University of Pennsylvania Has Entered into a Resolution Agreement to Resolve Its Title IX Violations (July 1, 2025), https://www.ed.gov/about/news/press-release/us-department-of-education-announces-university-of-pennsylvania-has-entered-resolution-agreement-resolve-its-title-ix-violations; Resolution Agreement Between the U.S. Dep't of Educ., Office for Civil Rights, and the University of Pennsylvania, Docket No. 03-25-6901 (July 1, 2025), https://ocrcas.ed.gov/sites/default/files/ocr-letters-and-agreements/03256901-b.pdf.
See, e.g., UVA Agreement, supra note 1, at 2; Agreement between the United States of America and Cornell University 2-3 (Nov. 7, 2025), https://statements.cornell.edu/2025/documents/cornell-settlement-agreement.pdf (hereinafter “Cornell Agreement”); Northwestern Agreement, supra note 11, at 10.
Press Release, Justice Department Establishes Civil Rights Fraud Initiative (May 19, 2025), https://www.justice.gov/opa/pr/justice-department-establishes-civil-rights-fraud-initiative.
FCA actions can result in treble damages and other penalties.
Paul Mahoney, Message to the UVA Community (Oct. 22, 2025), https://news.virginia.edu/content/interim-president-paul-mahoneys-message-university-community-uvas-agreement-justice.
UVA Reaches Agreement with U.S. Justice Department on Outstanding Compliance Investigations, UVA News (Oct. 22, 2025), https://news.virginia.edu/content/uva-reaches-agreement-us-justice-department-outstanding-compliance-investigations (quoting Rector Rachel Sheridan).
This was perhaps by design, insofar as the political opponents of the leaders who signed the agreement were likely to be the ones subject to it. See James E. Ryan, President Emeritus, University of Virginia, to Faculty Senators (Nov. 14, 2025), https://www.insidehighered.com/sites/default/files/2025-11/Jim%20Ryan%20letter.pdf. We would be happy to provide additional information and resources about the context of the UVA agreement.
UVA Agreement, supra note 1, at 2-3.
See id.
Id. at 2.
See, e.g., Northwestern Agreement, supra note 11, at 4.
Cornell Agreement, supra note 14, at 4.
National Security Presidential Memorandum No. 7, 90 Fed. Reg. 47,225 (Sept. 30, 2025). The government recently sought up to 100-year sentences for ICE protesters it labeled antifa. Dep’t of Justice, Press Release, Leader of Antifa Cell Members in North Texas Sentenced to 100 Years in Prison for Terrorist Attack on ICE Facility (June 23, 2026), https://www.justice.gov/opa/pr/leader-antifa-cell-members-north-texas-sentenced-100-years-prison-terrorist-attack-ice.
See, e.g., Northwestern Agreement, supra note 11, at 2 (“No provision of this Agreement, individually or taken together, shall be construed as giving the United States authority to dictate faculty hiring, University hiring, admission decisions, Northwestern’s curriculum, or the content of academic speech and research.”).
Amanda Shanor & Serena Mayeri, A Brief Legal Analysis of the Department of Education’s Proposed Compact for Higher Education, Knight First Amendment Inst. (Oct. 8, 2025), https://knightcolumbia.org/blog/a-brief-legal-analysis-of-the-department-of-educations-proposed-compact-for-higher-education.
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995).
Id.; Fed. Comm. Comm’n v. League of Women Voters, 468 U.S. 364 (1984); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998).
The Constitution likewise forbids the government from using its leverage over an intermediary (such as universities) to suppress the expression of another (their faculty, staff, and students). Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175 (2024); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
See Administrative Procedure Act, 5 U.S.C. § 551 et seq.
West Virginia v. EPA, 597 U.S. 697, 721 (2022). When acting on a major question, “something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.” Id. at 723.
South Dakota v. Dole, 483 U.S. 203 (1987).
University of Pennsylvania Fiscal Year 2025 Operating Budget; University of Pennsylvania Fiscal Year 2026 Operating Budget; Jason Cohn, How Much Federal Funding Do Colleges and Universities Receive?, Urban Inst. (May 8, 2025), https://www.urban.org/urban-wire/how-much-federal-funding-do-colleges-and-universities-receive.
600 U.S. 181 (2023).
Bostock v. Clayton County, 590 U.S. 644 (2020).
Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982); Rust v. Sullivan, 500 U.S. 173, 200 (1991) (“[W]e have recognized 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”).
See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 218-19 (2013).
See, e.g., President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Human Servs., 788 F. Supp. 3d 182 (D. Mass. 2025) (granting summary judgment and permanent injunction on First Amendment, Title VI, and APA grounds), appeals docketed, Nos. 25-2230, 25-2231 (1st Cir.); Am. Ass’n of Univ. Professors v. Trump, 815 F. Supp. 3d 907 (N.D. Cal. 2025) (preliminary injunction barring administration from threatening or freezing University of California funding on civil-rights grounds); Am. Ass’n of Univ. Professors v. Rubio, 802 F. Supp. 3d 120 (D. Mass. 2025) (finding administration’s visa revocation and deportation policy unconstitutionally viewpoint-discriminatory in violation of First Amendment and APA), appeal pending (1st Cir.); Perkins Coie LLP v. U.S. Dep’t of Justice, 783 F. Supp. 3d 105 (D.D.C. 2025) (permanently enjoining Exec. Order No. 14,230), appeal docketed, No. 25-5241 (D.C. Cir.); Jenner & Block LLP v. U.S. Dep’t of Justice, 784 F. Supp. 3d 76 (D.D.C. 2025) (permanently enjoining Exec. Order No. 14,246), appeal docketed No. 25-5265 (D.C. Cir.); Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President, 784 F. Supp. 3d 127 (D.D.C. 2025) (permanently enjoining Exec. Order No. 14,250), appeal docketed, No. 25-5277 (D.C. Cir.); Susman Godfrey LLP v. Executive Office of the President, 789 F. Supp. 3d 15 (D.D.C. 2025) (permanently enjoining Exec. Order No. 14,263), appeal docketed, No. 25-5310 (D.C. Cir.).
See, e.g., Roy Strom, Paul Weiss Deal with Trump Haunts Industry One Year Later, Bloomberg News (March 19, 2026); Ankush Khardori, The Fallout Is Growing on Trump’s Deals with Law Firms, Politico (July 10, 2025), https://www.politico.com/news/magazine/2025/07/10/trump-law-firms-deals-mess-column-00445259.
Serena Mayeri Serena Mayeri is Arlin M. Adams Professor of Constitutional Law and Professor of History at the University of Pennsylvania Carey Law School.
Amanda Shanor is an Associate Professor and Wolpow Family Faculty Scholar at the Wharton School of the University of Pennsylvania.