Introduction
The United States government now gives an extraordinary amount of money to colleges and universities.1 If it threatens to withhold some of that money, it might be able to achieve important and legitimate goals. It can also create serious risks to educational institutions, perhaps even existential risks, and it might be able to use its power to move institutions in its politically preferred directions.2 May it deny funds to institutions that have violated the law? May it deny funds to institutions that do not protect speech? To institutions that do not respect viewpoint diversity? To institutions that act in accordance with values or moral commitments that federal authorities dislike or abhor? If an institution is unpatriotic, antisemitic, right-leaning, or left-leaning, may it be deprived of money for that reason? Is there a right to academic freedom, and what does it entail?
These issues are hardly new, but they came into newly sharp relief in 2025. On March 7 of that year, the Department of Education, the Department of Health and Human Services, and the General Services Administration announced a pause or termination of federal funding to Columbia University.3 On March 13, the same institutions sent another letter to the same university, suggesting that it “has fundamentally failed to protect American students and faculty from antisemitic violence and harassment in addition to other alleged violations of Title VI and Title VII of the Civil Rights Act of 1964.”4 They added that certain “steps” are “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.”5 This letter was followed by others to other universities.6 On April 11, 2025, a letter to Harvard offered its own conditions, meant to serve as the foundation for a “binding settlement agreement.”7
Proposed requirements of this general kind raise evident legal questions.8 The first of these is statutory: Do existing enactments permit the federal government to impose requirements of this sort? The second questions are constitutional: Do steps of this sort violate some constitutional provision?
My goal in this essay is to explore a subset of the relevant questions, involving the First Amendment.9 Much of the analysis will abstract from questions of the current moment.10 My hope is that the analysis, mostly focused on a series of hypothetical questions, will help to clarify relevant principles, which can be applied in any moment. As we shall see, some important things are relatively clear, and some important things are unsettled. Here are three propositions that are relatively clear: (1) The federal government can generally speak as it wishes, free from the constraints of the First Amendment; (2) the federal government is generally not permitted to engage in viewpoint discrimination in its funding decisions, as, for example, by funding faculty research projects except those that are right of center; (3) the federal government may not impose unconstitutional conditions, as, for example, by leveraging its power over federal funds to discourage speech that it dislikes or to encourage speech that it likes. I shall spend some time on (1), (2), and (3).
Here are three open questions: (1) When and how may the federal government use its money to require colleges and universities to respond to and prevent alleged or actual violations of federal law? (2) Does the void-for-vagueness doctrine apply to funding decisions? (3) Is there a principle of academic freedom that restricts government’s authority to interfere with the administration of institutions of higher education, and if so, what restrictions does that principle impose?11
With respect to (1), I shall argue that the government has a great deal of authority, but that, under the First Amendment, it ought to be bound by a proportionality principle, forbidding it from seizing on isolated or particular violations of the law as the basis for broad or global withdrawals of funding. With respect to (2), I shall argue, more tentatively, that the void-for-vagueness doctrine should indeed apply to funding decisions, in order to protect fair notice and to prevent the arbitrary exercise of discretion. With respect to (3), I shall argue that some interferences with academic institutions abridge the First Amendment, and that the forbidden interferences include not only certain restrictions on speech but also certain restrictions on the self-governance of academic institutions (though the scope of that principle is not entirely clear). A general lesson is that certain uses of federal funding, here and on the horizon, raise novel issues about the relationship between the First Amendment and academic freedom, a concept that the Supreme Court has endorsed but not specified.12
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* Robert Walmsley University Professor, Harvard University. My thanks to Benjamin Eidelson, Richard Fallon, Stephen Sachs, and Geoffrey Stone for terrific comments on an earlier draft. Thanks, too, to Regina De Nigris for superb research assistance.