In May of 2016, the Obama administration threatened to take away federal aid from colleges that restricted people from using bathrooms corresponding to their preferred gender identity.
“When a school provides sex-segregated activities and facilities,” the administration’s letter at the time stated, “transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”
The Lt. Gov. of Texas, Dan Patrick, said then, “President Obama, in the dark of the night — without consulting Congress, without consulting educators, without consulting parents — decides to issue an executive order … forcing transgender policies on schools.”
Many conservative campuses over the last decade petitioned for exceptions to federal mandates like this on religious liberty grounds, most tried to decrease their reliance on federal grants, and some ultimately decided to opt out of federal funding entirely.
Now with political pressure coming from the Trump administration to take away federal funding from major universities, an entirely new set of campuses is having to ask hard questions and make difficult decisions. Among other things, this highlights a unique moment when campuses across the political spectrum share common concerns about preserving intellectual independence and freedom to direct their own educational missions.
Federal pressure switches sides
“Much of this higher-ed funding behavior is not new. It’s just coming from a different political direction,” University of Texas at Austin law professor Steven T. Collis told the Deseret News. “There’s no question, under the Obama and Biden administrations, the federal government had been engaging in similar behavior for some time and threatening to pull funding from schools with policies that reflected ideologies that they didn’t like.”
Now that the Trump administration is pursuing similar aims, the media and academics are giving it more attention, he said. “They tended to ignore it before because it didn’t threaten them.”
Whether or not these strings on aid are legally and constitutionally allowed is “not clear at all,” added Collis, the founding faculty director of the Bech-Loughlin First Amendment Center and its Law & Religion Clinic at the University of Texas at Austin. “The case law is not clear, and the analysis for religious schools would be different than the analysis for a secular school.”
While religious schools can invoke the free speech clause and religious freedom law, private secular schools will rely primarily on the free speech clause.
Preserving independence as private universities
In order to “maintain Harvard’s financial relationship with the federal government,” the Trump administration outlined nearly four pages of 10 demands — stating “we expect your immediate cooperation in implementing these critical reforms.”
In its April 14 letter, Harvard responded to White House demands saying, “the university will not surrender its independence or relinquish its constitutional rights. Neither Harvard nor any other private university can allow itself to be taken over by the federal government.”
In a separate letter to faculty, Harvard President Alan M. Garber wrote, “The administration’s prescription goes beyond the power of the federal government. ... And it threatens our values as a private institution devoted to the pursuit, production, and dissemination of knowledge. No government — regardless of which party is in power — should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.”
As the news unfolded, Hillsdale College, a Michigan school founded by Baptists, couldn’t help but weigh in, given its decades-long policy of refusing federal aid.
The same school kept coming up in social media discussions about Harvard.
Conservative eyes on Harvard
Action Trump takes against schools like Harvard and Columbia is being eyed warily by conservative campuses — aware that similar steps could be taken by future Democratic administrations against their own schools.
The pressure campaigns towards religious conservative campuses reached a fever pitch during Democratic administrations over the last decade — including student lawsuits challenging faith-based schools’ ability to access government funds when they don’t obey federal rules on sexuality and gender.
Although presidents Obama and Biden didn’t explicitly threaten tax exempt status of schools, progressive activists agitated for this possibility. David M. Andersen pointed out in a BYU Law review article that some groups went to “the extreme of planting spies within churches to immediately report to the IRS whenever clergymen address policy issues and admonish churchgoers to take action on those issues.”
The two restrictions the Internal Revenue Code places on the political speech and activities of tax-exempt organizations are narrowly focused on participating in “any political campaign on behalf of (or in opposition to) any candidate for public office” and “carrying on propaganda, or otherwise attempting, to influence legislation.”
Yet Andersen noted, “nonetheless, groups opposed to the political activity by churches continue to threaten religious entities with revocation of tax-exempt status for speaking out on social policy issues and urging members to take action in support of church positions.”
Disentangling from government strings attached
It’s “a matter of principle,” said David Whalen, Hillsdale’s provost, in explaining the school’s 1984 decision to forgo financial aid. “The regulatory and bureaucratic intrusion that Title IV brings with it gets deeper and deeper with every passing year.”
“As everyone knows, where there is money there is control.”
During the debate around civil rights on campuses in 2016, Donald Heller, provost at the University of San Francisco, affirmed, “Once you agree to accept federal funds for anything, you have to comply with all federal laws.”
Most schools that have turned down federal funding in the form of Title IV financial aid programs are conservative religious campuses, including Grove City College in Pennsylvania, Christendom College in Virginia, Pensacola Christian College in Florida, Patrick Henry College in Virginia, Wyoming Catholic College, and Gutenberg College in Oregon. One Orthodox Jewish institution, Yeshiva Toras Chaim Talmudic Seminary of Denver, also opts out of the same federal funding.
After Biola University in California was turned down in its request for a religious exemption from Title IX, Brett McCracken, then associate director of presidential communications, said, “We want to offer the choice to Christian students who want to go to school in a place that believes the traditional things that the Bible and Christian churches have believed for thousands of years about marriage and sexuality, among many other things.”
He added, “We want to be able to do our form of religious education in a unique way and we want to hold true to our convictions, and when you get entangled with the government in this kind of relationship it can become messy.”
For similar reasons, Brigham Young University has also reduced reliance on federal funding in recent decades. During the pandemic, Brigham Young University and other schools owned by The Church of Jesus Christ of Latter-day Saints also turned down a total of $333 million in pandemic relief funds — out of a desire to be self-reliant and a belief it could assist its students without help from the CARES Act funds.
Weaponizing government funding
Whether they are coming from the political left or right, Collis called the implications of these recent intrusive government policies “disastrous.”
In both instances, he said, each side has taken questionable action “to combat what they see as a greater wrong. The left believes they are trying to combat systemic inequality. The current political right believes they are combatting other forms of racism and the extreme left-wing homogeneity and activism of academia.”
Yet, Collis said, they’re together creating an environment of willingness to use government force against ideas we don’t like — and “we’re just begging for it to never end. Every time power shifts, you’re just gonna see people using the federal government to do this against ideologies and universities they don’t like.”
“There are effective ways to tackle the wrongs both the left and right want to correct,” Collis said. “But government trying to control the inner workings of universities should not be one of them. Universities cannot function well for long in that environment.”
Stephanie Barclay, a Professor of Law at Georgetown Law School and Co-Director of the Georgetown Center for the Constitution, agreed. “The government shouldn’t use funding to try and change a university’s mission or pedagogy, or what they teach or what they believe in — the values they’re trying to promote.”
Regardless of the motivating political ideology, Barclay expresses concern about when the ability to receive federal funding or participate in federal programs is conditioned on that school’s “willingness to toe the line on whatever the dominant view is of that administration at a given point in time” —something then “used as a way to punish dissenting voices and viewpoints.”
“Government shouldn’t weaponize federal funding to get speakers to only share messages it agrees with,” she said, “especially at universities where we need more of a marketplace of ideas — not more control of that expression.”
Barclay expresses hope that the fact this has happened on both sides of the political aisle can make people more sensitive about this problem in the future. “This shouldn’t be a partisan issue” she said — highlighting opportunities for conservative and liberal schools alike to “stand up for the importance of these first amendment values in a way that transcends politics.”