Could Trump Cut Berkeley's Funds?

Editor: Scott Jaschik, editor of Inside Higher Ed, offers an analysis on a provocative current issue.  We thank Scott for his permission to reprint it on our blog.  You can find the original article here.

Could Trump Cut Berkeley's Funds?

Experts say current law doesn’t permit punishing a university over handling of a speaker -- and that the president’s tweet distorted what took place.

By

Scott Jaschik

February 3, 2017

The news out of the University of California, Berkeley, Wednesday night stunned many. A lecture by Breitbart writer Milo Yiannopoulos -- known for his inflammatory insults -- was called off amid violent protests. While a large group of students and others engaged in nonviolent protest, an organized group of about 100-150 people from off campus, many of them masked, set fires, threw fireworks and rocks, and scuffled with police. The university had defended the right of Yiannopoulos to appear, but said safety issues forced it to call off the event.

Then Thursday morning, with Berkeley still cleaning up from the protests, President Trump weighed in.

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Donald J. Trump

✔ @realDonaldTrump

If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view - NO FEDERAL FUNDS?

3:13 AM - 2 Feb 2017

59,391 Retweets

213,516  likes

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The tweet set off much discussion in higher education. Some noted that Berkeley did not "practice violence" Wednesday night or deny free speech.

Many asked: Could Trump cut off federal funds to Berkeley? As a large research university, Berkeley depends on federal funds both for student aid and research. Hundreds of millions of dollars would be at stake if Trump could withhold the money.

Experts said they don't think the president has the authority to do so.

Tony DeCrappeo, president of the Council on Governmental Relations, a group that monitors laws and regulations related to research universities, said he knew of no law that would permit Trump to cut off funds to a university over a campus speaker.

The American Council on Education had a lawyer review the issue and found no such authority to punish a college over a speaker dispute, said Terry W. Hartle, senior vice president at the association of college presidents. He said that, during the Nixon administration, officials discussed some ways to use federal funding to punish colleges that were the sites of anti-war protests, but the idea never went forward and was viewed as unconstitutional.

Federal laws do of course impose requirements on colleges receiving federal aid that have nothing to do with the aid, per se. And some members of Congress have used such laws to oppose certain trends on campuses. In the 1980s, U.S. Representative Gerald Solomon, a New York Republican, attached to several appropriations bills provisions that cut off federal funds to institutions that did not permit military recruiters on campus. At the time, many law schools did ban military recruiters, saying that the military's anti-gay discrimination (since ended) violated institutional policies. In 2005, the U.S. Supreme Court upheld the law.

Hartle questioned whether any law or regulation should deny Berkeley the right to handle an event like the violent Wednesday night protest in a manner officials thought was best to preserve safety. Hartle said that Berkeley officials "clearly and unambiguously" affirmed the right of Yiannopoulos to speak.

Having done so, Berkeley tried to let Yiannopoulos speak and called the speech off only when facing violence that could have gotten much worse, Hartle said.

"That was a situation that was out of control," Hartle said. Campus leaders "have to assure a safe campus without violence."

He added, "I think second-guessing decisions like that made by [campus] law enforcement is a dangerous thing to be engaged in."

Notably, Berkeley's handling of the Yiannopoulos visit also won praise from the Foundation for Individual Rights in Education, which regularly criticizes colleges that turn away controversial speakers.

"In the week leading up to Milo Yiannopoulos's appearance, the University of California, Berkeley, did in fact appear to uphold its obligations to protect its students’ First Amendment rights. Chancellor [Nicholas] Dirks’s letter to the campus community correctly rebuffed calls for the university to cancel the event, noting that as a public institution, expression cannot be banned based on content or viewpoint," said an email from Ari Z. Cohn, director of the Individual Rights Defense Program at FIRE.

"Dirks also properly explained that the university could not tax the event with excessive security fees based on the content of Yiannopoulos’s expression, or anticipated opposition to his appearance. FIRE welcomed Dirks’s strong defense of Cal students’ First Amendment rights, and we hope that others will follow in his footsteps even in the wake of what transpired last night."

As to the idea of cutting federal funds, Cohn said that through future legislation, "the government could certainly condition the receipt of federal funds to public universities on compliance with their already legally binding constitutional and statutory obligations, including the First Amendment." But he added that this doesn't make sense for Berkeley, given that the university was trying to comply with its obligations.

"To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful," Cohn said.

Berkeley has not responded directly to Trump's tweet. But it did release a statement Thursday afternoon condemning the violence and providing an update on investigations of what happened.

In the statement, Chancellor Dirks criticized those who engaged in violence. “The violence was an attack on our fundamental values, which are maintaining and nurturing open inquiry and an inclusive, civil society -- the bedrock of a genuinely democratic nation,” he said. “We are now, and will remain in the future, completely committed to free speech not only as a vital component of our campus identity but as essential to our educational mission.”

Other details provided by Berkeley:

• Two students who are members of the Berkeley College Republicans were attacked on campus Thursday while doing an interview. Two men -- unaffiliated with Berkeley -- were arrested in the attack.
• Only one arrest -- of a nonstudent -- took place Wednesday night. The university is reviewing recordings and seeking information about others who could be charged. Pro-Yiannopoulos people on social media have questioned why Berkeley didn't arrest more people Wednesday night, but Berkeley has said its police officers did an admirable job under tense conditions in preventing injuries and more violence.
• An early estimate of the cost of damage to the campus is about $100,000. Costs include fixing broken windows, replacing a generator that caught fire and was destroyed, sandblasting paint off the concrete steps of the student union, and cleaning up graffiti.
• Ten businesses off campus have reported damage.

The Politics of Criticizing Berkeley

Even if Trump can't cut a penny from Berkeley's budget, his tweet may well be great politics. Many on social media praised him and seemed to accept the view that the violent protesters represented Berkeley, and suggested that Berkeley did nothing to stop the violence. Berkeley has said that all its evidence points to the violent group coming from off campus. Tweets on Thursday said things like, "Yes, cut their funding" and "They destroyed property probably funded by taxpayers. Berkeley did nothing to stop distruction. CUT OFF ALL TAX FUNDING!" [Sic.]

Others questioned Trump's logic and defended the university.

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Gavin Newsom

✔ @GavinNewsom

As a UC Regent I'm appalled at your willingness to deprive over 38,000 students access to an education because of the actions of a few.

7:47 AM - 2 Feb 2017

 6,307 Retweets

 12,727 likes

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John R. Thelin, professor of the history of higher education and public policy at the University of Kentucky, said via email that the real story of Berkeley is in fact one of supporting free speech.

"It's important to keep in mind that the motto of the University of California is Fiat Lux! -- 'Let There Be Light!' That does not extend to invok[ing] smoke, mirrors, bombs or blasts," Thelin said via email. "As a Californian and a Berkeley grad school alumnus, I take the motto and symbols to heart. The Berkeley campus has a long tradition of open political forum stretching back to the 1930s, even long before the volatile, visible campus protests of the mid- and late 1960s."

As for the tweet, Thelin said, "President Trump's response seems to be a threat -- and probably predictable bluster. Stopping federal funding for research grants and/or student aid is both rash and probably not allowable."