What shall we possibly chat about, Daphne? :)

For insightful views on Trump’s Higher Ed Compact, check out:

@fishkin.bsky.social at balkinization: balkin.blogspot.com/2025/10/the-...

@genevievelakier.bsky.social at divided argument: blog.dividedargument.com/p/the-uncons...

And @himself.bsky.social in the NYT: www.nytimes.com/2025/10/08/o...

Your post is excellent but I don't want administrators to read it and think that they need do nothing to defend themselves against what may (or may not!) be a very serious threat to their institutions

I hope you are right! You are obv right that now is the time to put as much pressure as possible on red state private schools to not sign. But vagueness is itself a 1A problem, bc of its chilling effects, so litigation is a viable parallel track that schools can and I think should explore.

I think universities should instead SUE the gov for what is a blatantly unconstitutional art of the deal. And they should start prepping their lawsuit now, before the Compact goes into effect.

I worry however that it underplays the partisan dynamics at work here. If all (public) schools in red states are forced to sign on to the Compact, and therefore get priority in federal funds, will schools in blue states feel free to resist? Do unis really have the capacity to simply...do nothing?

I don't think that it does. First, Finley treats the conditionality of the grants as in fact a serious 1A prob--which is why the majority works so hard to interpret the conditions narrowly. As do all the post-Finley cases, including Open Society.

Finley is a pretty bad opinion I think, but the majority upholds the restrictions only after finding them to be both advisory and not likely to result in targeted viewpoint discrimination. Pretty different to the situation here!!

The requirement of institutional neutrality in particular makes the parallel to the earlier unconstitutional conditions case even closer than I thought! Here too speakers are being asked to not editorialize in order to receive funds from the gov.....

Hence, I dearly hope that @aceducation.bsky.social and the institutions it represents do not just sign on the dotted line to a “compact” that they should fight tooth and nail against—and that the constitution likely protects them against. Do they have the political courage to do so though? End.

It is continuing to try--as it has for the entire year--to leverage its power of the purse to control American higher ed and by proxy the ideas that students around the country are exposed to. In principle, the 1A limits its ability to do so--but only if those protected by it stand on their rights.

Actually universities receive much STRONGER First A protection than broadcasters under contemporary precedents. And yet the admin is asking them to forego a core 1A right, just as the govt attempted to do in the radio case in order to receive federal funding

Indeed, the facts are quite similar to a case in which SCOTUS unanimously found the gov violated the doctrine when it prohibited radio stations that received federal funds from “editorializing”—for similar lets not create a less partisan public sphere reasons

supreme.justia.com/cases/federa...