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