On Wednesday, July 30, President Christina Paxson P’19 PMD’20 announced the University had come to an agreement with the Trump administration. She struck a reassuring tone: “The agreement preserves the integrity of Brown’s academic foundation, and it enables us as a community to move forward after a period of considerable uncertainty.” Unfortunately, though this agreement could have been worse, it only weakens the integrity of Brown’s academic community and institutionalizes the uncertainty that Paxson speaks of.
Let’s start with what’s missing from the agreement. Brown has its funding restored and the government is closing current investigations into Brown, but there is no commitment of any sort that the administration will back off harassing, detaining and deporting the non-citizen members of the University. What “academic foundation” can there be when a scholar can be disappeared or cowed into silence?
What is in the agreement is as bad as what isn’t. The most obvious is, as with other university deals, these aren’t agreements. President Trump and his extortionate regime see university presidents the same way as they see Iranian mullahs or Canadian trade negotiators: everything is provisional, the boss might change his mind. The government has agreed to put down the guns it has in its hands, but it could always just pick them back up. As Columbia University economist Suresh Naidu pointed out about his university’s agreement, you cannot make deals with an administration that is “simply too powerful and too arbitrary to be credibly bargained with.”
It’s worse than that. These agreements do at least three things that change the legal environment for the universities. First, Brown agrees to provide new and detailed information on a range of campus activities to the government in the form of new reports and surveys, as well as rights to request more information at will. Officials can then data mine this new trove for anything that looks off color or that can be used as a pretense to claim Brown isn’t holding up its end. In addition, the agreement imposes a requirement to review “student course evaluations that are collected on an anonymous basis at the end of each semester” to “identify any reports of antisemitism,” effectively recruiting students to government monitoring.
Elsewhere in the agreement, as part of the university’s commitment to “not maintain programs that promote unlawful efforts to achieve race-based outcomes, quotas, diversity targets or similar efforts” it agrees to “provide a timely report to the United States summarizing its compliance with this obligation.” The upshot of that, and related provisions, is that in pursuing its version of color blindness the government is creating the most extensive race monitoring system in academic history.
The second problem is Brown incorporates the administration’s, rather than legally valid, standards on issues ranging from harassment to racial discrimination. For instance, Brown has agreed not to use “personal statements, diversity narratives or any applicant reference to racial identity” as a means to introduce preferences on the basis of race, color and national origin, even though the Supreme Court has said that these individualized criteria are perfectly constitutional . In the section on harassment and discrimination, there is no clear statement of what will count as antisemitism, nor of what counts as an adequate response to allegations of antisemitism. The government’s criteria rely on the incoherent, speech-suppressive International Holocaust Remembrance Alliance definition, which hopelessly confuses criticism of Israel with antisemitic expression. Application of IHRA would lead to unconstitutional and undesirable constraints, which is why even the IHRA’s own lead drafter has rejected it as suitable to guide law and policy.
Third, since the agreement is essentially a private contract with the government, the new — often vaguely worded — standards and rules it has incorporated are effectively new legal liabilities. There are a host of potential ways Brown could violate its terms, without doing anything that the Constitution or Congress deems illegal. If Brown does something that the government decides violates the agreement, the government has cause to pick one of its many guns back up. And if Brown then decides to challenge this in court, it must show not only that it was acting within ordinary constitutional or statutory limits but also complying with this agreement.
The whole point of this settlement was, seemingly, to avoid the costly and slow route of litigation in order to restore funding and get the government off Brown’s back. Yet, the new reporting requirements, anonymous evaluations and campus surveys create avenues and incentives for disgruntled students, staff or faculty to back-channel information to the government. This then can be used as proof that the University is breaking its contract, even when it has otherwise done nothing wrong.
So bottom line, Brown gets its funding back by creating loads of new, legally enforceable obligations, which it is easy for the government to plausibly claim Brown isn’t keeping to, and with no legally enforceable counter-commitments from the government going forward. Just one disruptive student protest, a few anonymous evaluations, some controversial social media posts or a negative campus survey and we are back in the line of fire. No university can exercise the necessary coercive control over its members to avoid those kinds of events — and no university ever should.
The University’s thinking is unrealistic. It seems to imagine that we can make it through the next couple years, weather the storm, and then return to the status quo. But do they really think a President Vance or Rubio or whoever won’t also do this, especially once the precedent has been set and these kinds of negotiations normalized? This is not a temporary measure in an abnormal period. These agreements help create a new normal. If we are being extorted, then just say so. But don’t call a stick-up a voluntary agreement, and don’t sell it as a return to the way things were.
Alexander Gourevitch is an Associate Professor of Political Science. He can be reached at Alexander_Gourevitch@brown.edu. Please send responses to this op-ed to letters@browndailyherald.com and other op-eds to opinions@browndailyherald.com.
