Trump Can’t Cut Off Berkeley’s Funds by Himself. His Threat Still Raised Alarm.

Sarah Brown and Katherine Mangan, The Chronicle of Higher Education, February 3, 2017

Back in October, when President Trump vowed to “end” political correctness on college campuses, it was unclear how the then-presidential candidate planned to go about doing that.

On Thursday, he dropped a hint: He threatened to cut off federal funding to the University of California at Berkeley after violent protests there prompted campus leaders to call off a talk by a far-right provocateur.

Milo Yiannopoulos is a Breitbart News editor and Trump supporter who has for months traveled to campuses to give talks that often draw protests and have sometimes resulted in violence.

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Mr. Yiannopoulos was scheduled to speak on Berkeley’s campus late Wednesday, as part of his “Dangerous Faggot” tour, and more than 1,500 students gathered outside the venue to peacefully protest. Then about 100 additional protesters — mostly nonstudents, Berkeley officials said — joined the fray and hurled smoke bombs, broke windows, and started fires. The violence forced the campus police to put Berkeley on lockdown and led university leaders to cancel the event.

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Could Mr. Trump take away a university’s federal funding for what he sees as a violation of the First Amendment? Not on his own, and not entirely, some scholars say, though there are ways he could advocate for cutting some of it.

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Berkeley’s chancellor, Nicholas B. Dirks, went to great lengths last week to explain why the university would not give in to demands to cancel Mr. Yiannopoulos’s appearance. The First Amendment, the chancellor wrote, does not allow the university to censor or prohibit such events.

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On Thursday, Mr. Dirks released a statement doubling down on his earlier comments about the campus’s commitment to free speech:

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“We deeply regret that the violence unleashed by this group undermined the First Amendment rights of the speaker as well as those who came to lawfully assemble and protest his presence.”

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Terry W. Hartle, a senior vice president at the American Council on Education, took the question mark on the end of Mr. Trump’s tweet literally. The president might have been asking, Could I withhold federal funds from Berkeley? Mr. Hartle said.

Yes, the federal government has the authority to withhold federal funds like financial aid from colleges that engage in certain activities, Mr. Hartle said. And it has the authority to attach conditions to the money it gives out. The

Solomon Amendment, for instance, requires colleges to admit ROTC or military recruiters to their campus or risk losing money.

But Congress would have to act to give the government the ability to take away federal funds for controversies involving the First Amendment, Mr. Hartle said.

The government also couldn’t pull funding from Berkeley by retroactively saying the institution’s federal money is contingent on protecting free speech, said Alexander (Sasha) Volokh, an associate professor of law at Emory University.

“If the funding comes explicitly with strings attached, which is that you must adequately protect free speech on your campus if you want these funds, and if the university takes these funds knowing the condition, that’s one thing,” he said.

The U.S. Supreme Court has weighed in several times on strings attached to federal funding, Mr. Volokh said, and has determined that such conditions must be clearly stated in advance and related to the matter being funded.

For instance, he said, the court said it was OK for the government to tie federal highway funds to a requirement for states to adopt a drinking age of 21, because highway safety could be affected by the drinking age. But the National Institutes of Health probably couldn’t attach a requirement for free-speech protection to a grant for researching Ebola, he said.

Moving forward, Mr. Trump could tell federal research agencies that some of their contracts with colleges and researchers should now include stipulations about free speech, Mr. Volokh said. “I have the feeling that Trump had something much blunter in mind,” he said.

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Berkeley is in a particularly difficult situation, Mr. Hartle said, because in his view the university did everything right when Mr. Yiannopoulos came to the campus. “Berkeley tried to allow him to speak and to allow protesters to protest,” he said. “Everything was fine until the protests turned violent.”

One challenge for colleges, he said, will probably involve dealing with people, particularly nonstudents, who want to disrupt speakers and who “now see resorting to violence as simply another tactic in an effort to accomplish their purpose.”

If Mr. Trump were to push Congress to pass a law giving him the authority to take away federal funds from colleges for free-speech controversies, Mr. Hartle said, “they should carve out some sort of exception when it involved violence or a police request.”

While the president might not make such legislation a priority, college officials shouldn’t dismiss his criticism of Berkeley, said Mr. Zimmerman, of Penn. “It’s ridiculous and frightening for the president to be threatening to withhold money based on his perception of what’s happening with free speech on campus,” he said. On the other hand, he said, “Trump is not wrong when he says a lot of people on these campuses want to squelch free speech.”

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Given the violence, Mr. Zimmerman doesn’t begrudge Berkeley’s administration for canceling the speech. But he described as problematic a letter signed by dozens of professors saying that Mr. Yiannopoulos shouldn’t be allowed to speak on campus.

Ultimately, Mr. Volokh is more concerned about the way in which Mr. Trump made his point, versus the content of the tweet. “It wasn’t enough for him to say that free speech is important,” Mr. Volokh said. “He had to do it in a way that was threatening.”

 

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