By Paul Gowder and Heidi Kitrosser (both at Northwestern) and posted on University Under Threat, an association of Northwestern faculty. It hits the familiar beats–the initial withholding of funds was unlawful and Northwestern agreed to a bunch of things that, had the government imposed them, would have violated the First Amendment and equal protection.
Paul and Heidi seem to be trying to argue something new: That in enforcing the agreement, Northwestern discriminates against and violates free speech rights of students and faculty, laying out the bases for claims against the university. They include the flipside of the requirement that NU report its admissions data. Everyone has seen that as a way for Administration to claim a breach of the agreement if the school continues to admit “too many” non-white students. Paul and Heidi argue that a non-white applicant could use that as a basis for the claim–the fear of further government sanction caused the school to deny me admission.
I am not sure whether these claims succeed. But it would be entertaining if NU entered into the agreement to avoid (winnable) litigation and then must defend itself against dozens of student lawsuits.
On a different point: These agreements should revive questions of whether these private universities act under color on a close nexus/coercion theory. Lower courts (most notably the Ninth Circuit) rightly rejected this theory in claims against Facebook, YouTube, and other social-media sites for banning or blocking anti-fax, fake COVID, and other speech at the government’s urging. Conversations with government (even with individual congresspeople making vague threats to strip § 230 protections or to push for antitrust enforcement) did not create the necessary compulsion or overwhelming coercion. But perhaps it crosses the line when a private entity enters a formal legal agreement with the government compelling the private entity–on pain of loss of $–to do things that, done by the government, might violate the Constitution.
I think I see a new problem for class discussion next semester.
Update: Heidi responds. I misunderstood their argument. They are describing ways for students and faculty to sue the Administration under an NRA v. Vullo theory. NU will enact and enforce arguably First Amendment-violative policies (e.g., prohibiting “demeaning . . . behavior” during protests) under government threat. I have to think about this more. Do jawboning arguments look different when it comes via (presumptively valid) contract and the threats of prosecution lobbed at the insurance companies in NRA? And do they look different in the context of the unique regulatory relationship between students and a university?
Meanwhile, a group of alumni are having conversations about whether NU should sue to invalidate the agreement, on the ground that it was entered under duress.