October 17, 2025
Clifton M. Iler
The Office of the University Counsel
Madison Hall
P.O. Box 400225
The University of Virginia
Dear Mr. Iler:
We are members of the faculty of the University of Virginia School of Law. In recent weeks, many observers, locally and nationally, have expressed objections to the Trump Administration’s “Compact for Academic Excellence in Higher Education.” Many of us have been asked how we, as law professors, view the Compact constitutionally. We cannot speak for the law school. Rather, we send this letter to you (and other members of the University community) in our individual capacities to express our individual concerns. Nor do we purport to offer an exhaustive legal analysis. We recognize that the Compact could present state and federal statutory and constitutional challenges beyond what we examine here, including but not limited to questions of equal protection. In the interests of brevity, however, we limit the scope of this letter to a discussion of the constitutional issues we consider most pressing—the way in which the Compact (at least in its application) could (i) constitute a coercive exercise of conditional spending and (ii) prove offensive to freedom of speech and association. Ultimately, we are convinced that the Compact, in its totality, chills free expression, free association, and academic freedom in ways that the founder of our university, Thomas Jefferson, would have rejected.
Here are our central objections:
As to conditional spending, the Trump Administration has framed the Compact as an offer, but we worry that it could constitute an unconstitutional threat. The Compact states expressly that if a university were to “develop models and values other than those below,” the federal government would force the university to “forego federal benefits” (including, but not limited to, the cessation of research funding, the denial of access to student loans and grant programs, and the withdrawal of non-profit tax status). To be sure, principles of federalism do permit Congress to attach limited conditions to the monies it allocates. Notably, however, this Compact is not even coming from Congress, but rather from the Trump Administration. But, even if the Compact were a congressional effort, Congress cannot structure its “offer” in a fashion that would, upon rejection, make targets worse off than they are otherwise legally entitled to be. See National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). The Compact endeavors to do so by, for instance, threatening to revoke universities’ tax status on grounds other than those prescribed by positive law.
Moreover, funding conditions must be unambiguous, prospective, and sufficiently related to the funding project in question. See id. It would be particularly problematic, then, for the Trump administration (again, acting impermissibly in Congress’s stead) to retroactively withhold or withdraw previously allocated funds. And, even as to future funding, the Compact’s conditions are overbroad. There is simply no nexus between the provision of a medical grant to study infectious diseases, for example, and the Compact’s mandated changes to the grading system and tuition policies at the College. As the Supreme Court has suggested, a federal effort that threatens to “terminate . . . significant independent grants” through non-germane, unclear, and far-reaching conditions could convert a permissible form of “mild encouragement” into an unconstitutionally coercive “gun to the head.” Id.; see also South Dakota v. Dole, 483 U.S. 203 (1987).
In any event, no public institution, including the University of Virginia, can ever permissibly agree to terms that, by themselves, would compel the institution to violate the Constitution. On this score, there are several aspects of the Compact that are potentially problematic. One of the Compact’s provisions, for instance, would require assenting public universities to maintain a “vibrant marketplace of ideas” in which “no single ideology [is] dominant.” On its face, this might sound inoffensive, because we can all agree that a vibrant marketplace of ideas constitutes a laudable goal. The difficulty is in the execution: a public university might not be able effectively to ensure that “no single ideology” dominates without, in turn, engaging in an impermissible form of speech balancing that could entail constant adjustments to speakers’ access to ensure the preferred ideological equilibrium. To comply, the university would presumably have to continuously audit the speech, ideology, and political affiliations of its community members. This kind of after-the-fact policing of speech produces not a free market, but a content-driven, government-controlled market. We believe that such a manufactured marketplace of ideas would prove noxious to cherished First Amendment values.
Of course, just like individuals, universities have their own free association rights and therefore may choose (admirably, we think) to pursue a level of ideological diversity. But they must do so in ways that do not involve viewpoint discrimination. Public universities cannot discipline faculty, staff, or students for exercising personal liberties. They cannot enforce speech codes or ideologically based quotas on admissions or hiring. They cannot control the marketplace of ideas by favoring particular political viewpoints. They cannot select discrete political perspectives to be sheltered from criticism or to be given special access, even in the interest of what the Compact calls “institutional neutrality.” See Pickering v. Board of Education, 391 U.S. 563 (1968) (holding that “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment”); cf. Keyishian v. Board of Regents, 385 U.S. 589 (1967) (holding, on due process grounds, that mere party membership, without a specific intent to further illegality, is an unconstitutional basis to terminate a public employee, and reasoning that “safeguarding academic freedom” is a “special concern of the First Amendment”).
More to the point, there are reasons to worry whether “institutional neutrality” is even the Compact’s aim. After all, the Compact highlights particular beliefs that seemingly demand extraordinary protection. For instance, the Compact identifies “western values” as values to be promoted and “conservative ideas” as ideas that must not be “belittle[d].” If an academic department were to engage in such “belittling” (however construed), the Compact specifies further that it must be shuttered. The import of the condition is this: whenever a particular department happens to attract scholars with non-conservative ideas or non-western values, the
department must thereafter (at the threat of elimination) put a thumb on the scales for conservative and/or western thinkers by implementing preferences for the expression of their speech and ideas.
Nor is it even apparent how the Department of Education could legally police compliance with the Compact and its compelled ideological balancing. After all, the Federal Privacy Act of 1974, which was enacted by a nearly unanimous Congress, dictates plainly that covered federal agencies shall “maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to or within the scope of authorized law enforcement activity.” 5 USC 552a(e)(7). An animating concern behind this statutory provision was the fear that federal agencies would otherwise chill free association and speech rights by tracking the beliefs, expressions, and affiliations of individuals. See generally Danielle Keats Citron, A More Perfect Privacy, 104 B.U. L. REV. 1074 (2024) (discussing the Federal Privacy Act and its impetus). To enforce the Compact’s terms, the Department of Education would presumably be forced to illegally collect and maintain such data from universities. How else could the Trump Administration evaluate effectively whether a university had achieved the requisite “institutional neutrality”?
Additionally, the Compact singles out for regulation “harassing” or “threatening” speech. To be sure, a public university may constitutionally regulate expression that meets the Constitution’s high bar for unprotected speech acts. See e.g., Counterman v. Colorado, 600 U.S. 66 (2023); Brandenburg v. Ohio, 395 U.S. 444 (1969). But there are reasons to worry that the Compact’s conception of “harassing” and “threatening” speech acts falls within the broad scope of constitutional expression. For example, in the very same provision, the Compact demands that universities impose “conditions of civility.” We can all agree that civility is often (if not always) an attractive feature of social and educational engagement, but state actors are only authorized to compel civility through content-neutral time, place, and manner restrictions. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1989). Given the Compact’s top-down, posthoc emphasis on establishing ideological balance, it is unclear whether the terms of the Compact could ever be satisfied in such a content-neutral manner.
Finally, it is unclear whether a Compact-compliant university could even constitutionally enjoy the funding and other benefits that the Compact promises. If such a university were to thereafter receive preferential federal treatment, another university (for instance, one that had refused to sign the Compact) would have a strong claim that the federal government was unconstitutionally favoring the expressive actions of the assenting university. In other words, the federal government’s allocation of Compact benefits could, itself, constitute an instance of content-based regulation of expression in violation of the First Amendment. In turn, the university that had bound itself to the Compact would have sacrificed institutional self governance for no realizable tangible advantage.
In conclusion, we hope you will follow the lead of the Massachusetts Institute of Technology, Brown University, the University of Pennsylvania, and the University of Southern California, all of which recently rejected the Compact as a threat to freedom of expression, academic achievement premised upon merit, and independent research and learning. In her letter declining to commit Brown University, President Christina H. Paxson expressed concern that “the Compact by its nature and by various provisions would restrict academic freedom and would undermine the autonomy of [university] governance, critically compromising our ability to fulfill our mission.” We share her sentiments and urge the University of Virginia to take the same course of action—a course of action that is, at once, institutionally wise and constitutionally sound.
Sincerely,
Kenneth S. Abraham
David and Mary Harrison Distinguished
Professor of Law
Charles Barzun
Joel B. Piassick Research Professor of Law
Andrew Block
Professor of Law, General Faculty
Josh Bowers
Class of 1963 Research Professor of Law in
Honor of Graham C. Lilly and Peter W. Low
Darryl K. Brown
O. M. Vicars Professor of Law
Hunton Andrews Kurth Professor of Law
Naomi R. Cahn
Justice Anthony M. Kennedy Distinguished Professor of Law
Armistead M. Dobie Professor of Law
Jonathan Z. Cannon
Blaine T. Phillips Distinguished
Professor of Environmental Law Emeritus
Danielle Keats Citron
Jefferson Scholars Foundation Schenck
Distinguished Professor of Law, Martha Lubin Karsh and Bruce A. Karsh
Bicentennial Professor of Law
George M. Cohen
Brokaw Professor of Corporate Law
Kevin Cope
Professor of Law
Anne M. Coughlin
Lewis F. Powell, Jr., Professor of Law
Deirdre M. Enright
Professor of Law, General Faculty
Joshua Fischman
Albert Clark Tate, Jr., Professor of Law
Thomas Frampton
Professor of Law
Amanda Frost
David Lurton Massee, Jr., Professor of Law
Jennifer L. Givens
Professor of Law, General Faculty
Juliet Hatchett
Assistant Professor of Law, General Faculty
Deborah Hellman
Robert E. Scott Distinguished Professor of Law
The Honorable Albert V. Bryan Jr. ‘50
Research Professor of Law
Stanley D. Henderson
F. D. G. Ribble Professor of Law Emeritus
Walter L. Brown Professor of Law,
Roy L. and Rosamond Woodruff Morgan
Professor of Law
A. E. Dick Howard Distinguished Professor of Law and Public Affairs Emeritus
Cathy Hwang Edward F. Howrey Professor of Law
Cale Jaffe Professor of Law, General Faculty
Alex M. Johnson, Jr. James C. Slaughter Distinguished Professor of Law
Annie Kim Assistant Professor of Law, General Faculty
Chinh Q. Le Assistant Professor of Law, General Faculty
Ruth Mason Edwin S. Cohen Distinguished Professor of Law and Taxation
John A. Ewald, Jr., Research Professor of Law
Molly McShane Lecturer of Law
John T. Monahan John S. Shannon Distinguished Professor of Law
Karen Moran Professor of Law, General Faculty
Kelly Orians Assistant Professor of Law, General Faculty
Karoline Homer Ryan Associate Professor of Law, General Faculty
Molly Bishop Shadel Professor of Law, General Faculty
Crystal Shin Professor of Law, General Faculty
Richard Schragger Walter L. Brown Professor of Law, Roy L. and Rosamond Woodruff Morgan
Professor of Law
Sarah Shalf
Professor of Law, General Faculty
Cate Stetson
Assistant Professor of Law, General Faculty
Megan T. Stevenson
Henry L. and Grace Doherty Charitable Foundation
Professor of Law
Gregg Strauss
Joseph W. Dorn Research Professor of Law
Leon Szeptycki
Professor of Law, General Faculty
J. H. Verkerke
T. Munford Boyd Professor of Law
Earle K. Shawe Professor of Employment Law
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