Trump/Northwestern Deal Violates Federal Law, Pritzker Professors Say

EVANSTON, IL — Two Northwestern Pritzker School of Law professors believe that the agreement between the Trump administration and the university violates the First Amendment and federal antidiscrimination law.

In November, Northwestern agreed to pay $75 million to the U.S. government to restore federal funding after reaching a deal with the Trump administration.

Under the deal, Northwestern agreed to make payments to the U.S. Treasury over the next three years. The school also agreed to adhere to federal anti-discrimination laws; put in place policies and procedures relating to demonstrations and protests; and implement mandatory antisemitism training for all students, faculty and staff.

Professors Heidi Kitrosser and Paul Gowder argued that the federal government provided no official explanation or warning for freezing $790 million in funding for Northwestern researchers in April. The agreement, the professors argued, was the product of government coercion, and the university should have sought legal action after the funding freeze.

"From the start, the Trump Administration violated federal law when it withheld federal

funds from Northwestern. The university would have been on a strong footing if it had sued the
administration; others who have sued in similar circumstances – including Harvard University
and faculty members at both Harvard and the University of California – have been successful in
the lower courts. Northwestern did not sue," Gowder and Kitrosser said in a joint statement on Dec. 8.

According to the professors, the agreement illegally uses federal funding as leverage to control the speech of Northwestern community members. Despite the government suggesting it has the right to impose conditions on universities that receive funding, the law professors argue that it is illegal to condition funds on approval of the grantee's speech outside the scope of the funded project.

The agreement also changed the university's already-existing anti-harassment policy, which prohibits "demeaning ... behavior," into a government mandate. This means that the university would need the consent of the Assistant Attorney General to modify any anti-harassment policies.

"This new government requirement, combined with the Agreement’s various monitoring and

reporting requirements and the Trump administration’s well-known positions on acceptable
campus speech, has significant potential to chill speech on campus," the professors said.

In addition to First amendment violations, Kitrosser and Gowder argue that the university agreed to several provisions that contradict the current Supreme Court interpretation of antidiscrimination law.

The agreement required the university to define "men" and "women" consistent with an executive order that rejects transgender identity. Because Northwestern is a private institution, the President doesn't have the authority to dictate how the university carries out regulation under Title VI or Title IX.

The professors' statement also argues that the most glaring example of violations of discrimination law concerns admissions and hiring at the university. The bar on the use of “personal statements, diversity narratives, or any applicant reference to racial identity” in the agreement appears to intend to rule out all admissions decisions that consider references or racial identity.

The same is true of faculty hiring.

"Imagine a student writes a personal statement that talks about how growing up in a segregated

community affected their high school grades or how being a victim of race-based police
misconduct inspired them to engage in activism or found a nonprofit. That would constitute an
'applicant reference to racial identity,'" the professors wrote. "The Trump Administration has no business demanding that Northwestern avoid it."

Patch staffer Megan VerHelst contributed to this report