Short Post: Are Universities Trying to "Have it Both Ways"?

One of the most misleading falsehoods currently being pedaled on the right about American private universities is that these institutions “cannot have it both ways.” If they decide to take federal money, they cannot ignore the will of the people as expressed through the election of President Trump. Right-wing activist Christopher Rufo expounded upon this argument at length in a long interview with The New York Times last week. He suggested that if private universities do not want federal oversight, they can simply refuse federal research funds. It sounds reasonable, but it is in fact utterly wrong.

First of all, what does it really mean for private universities to “take federal money”? It does not mean that the federal government is contributing unrestricted funds to their general operating budgets. It means that they have signed specific contracts to carry out certain specific research tasks in exchange for the funding. These contracts, like all contracts, come with conditions, but the conditions are clearly spelled out in law. The Civil Rights Act says that contracts can be terminated if the university in question violates the rights of its students. But the Act also details specific procedures for the investigation and punishment of possible violations. The Trump administration has not followed these procedures in regard to the funding it has already canceled or frozen, in flagrant violation of due process. And the contracts say nothing about the universities needing to align themselves with a President’s ideological program. Terminating a contract for this reason is illegal. As long as university personnel are fulfilling the contract—in other words, carrying out the specified research to the best of their abilities—it must be respected.

What I have said here so far applies principally to existing contracts. What about new ones? Does the administration have more leeway there? To choose what to fund, and what not? Not really. Research funds are not allocated by the executive branch of the government. They are allocated by Congress, which has just as much democratic legitimacy as the presidency. It is Congress that created agencies such as the National Institutes of Health and provides them with budgets each year. Those budgets are allocated for specific purposes: for instance, to conduct research into the causes and treatment of particular maladies. The executive branch has the responsibility of ensuring that Congress’s intentions are carried out as effectively as possible: in other words, to distribute funds to those best capable of carrying out the legislatively mandated research. That is the limit of its leeway, of its authority, and until 2025 it is what the agencies in question concentrated on doing: using scientific criteria to choose the best research projects to fund, and to monitor and evaluate the results. The executive branch has no legal authority to allocate research funding on the basis of how well a particular project aligns or fails to align with the President’s ideological program. To do so is to violate the intent of legislation duly passed by a democratically elected Congress. Far from fulfilling the will of the people, it does the reverse.