UVA Rejects Compact

Photo Credits: Benvin Lozada from The Cavalier Daily

On Friday, October 17, in an email to University of Virginia staff and students, Interim University President Paul Mahoney declined the Trump Administration’s invitation to sign the Compact for Academic Excellence in Higher Education. UVA joins Massachusetts Institute of Technology (Interim President Mahoney’s undergrad alma mater), Dartmouth College, USC, Penn, and Brown University in rejecting the compact, which was initially extended to nine colleges and universities. The document promised to provide the signing parties preferential treatment for funding, student scholarships, student visas, and tax treatment. This treatment was to be provided in exchange for university adherence to a set of standards, which included identity-neutral admissions policies, mandatory standardized testing, and a commitment to “fostering a vibrant marketplace of ideas on campus.” The compact also required “Institutional Neutrality,” forbidding any employee of the University from commenting on “societal and political events” in their capacity as an official representative of the University.

In his email to the UVA community containing the letter to the Trump administration, Interim President Mahoney affirmed the ideals motivating the compact: “[We] agree with many of the principles outlined in the Compact, including a fair and unbiased admissions process, an affordable and academically rigorous education, a thriving marketplace of ideas, institutional neutrality, and equal treatment of students, faculty, and staff in all aspects of university operations.”

Interim President Mahoney maintained that commitment to these ideals warranted “no special treatment,” and that “a contractual arrangement [providing preferential funding will] further erode confidence in American higher education.” He went on to say, “​​we believe that the best path toward real and durable progress lies in an open and collaborative conversation.”

The letter to the Trump administration came shortly after a different letter sent to University Counsel Clifton Iler by forty-one Law School faculty members, also on Friday. The faculty letter addressed the constitutionality of the compact, and was delivered in a purely personal capacity. “We cannot speak for the law school.” The professors’ key objections were that the compact would “(i) constitute a coercive exercise of conditional spending and (ii) prove offensive to freedom of speech and association.”

The professors cited NFIB v. Sebelius and then South Dakota v. Dole in support of their claim that the compact oversteps by threatening to withdraw both previously allocated and future funding if universities do not adhere to its demands.

The faculty letter states: “Congress cannot structure its “offer” in a fashion that would, upon rejection, make targets worse off than they are otherwise legally entitled to be . . . . [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.” [National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)]; see also South Dakota v. Dole, 483 U.S. 203 (1987).”

As the professors point out, it is not Congress doing the offering, but the President.

They go on to say that the restrictions on speech are similarly problematic. The professors say that a “vibrant marketplace of ideas” is “laudable” but that “[t]he difficulty is in the execution.” Policing speech in the manner suggested requires constant oversight and correction, all in the hopes of achieving a difficult-to-define equilibrium, one that is even less easily accomplished.​​ They argue that such interference is unconstitutional content-based discrimination.

Other concerns were also raised. The compact has a conservative cadence which undermines its advocacy for “institutional neutrality.” It stipulates that prospective students must be in support of “Western values” and that “institutional units” that “punish, belittle, or spark violence against conservative ideas” must be “abolished.” To the average reader, this language makes it very hard to understand as genuine the compact’s call for “rigorous, good faith, empirical assessment[s] of a broad spectrum of viewpoints.” The letter goes on to say that there are also numerous privacy implications for widespread monitoring of speech by either the University or the government.

The letter was functionally mooted by Interim President Mahoney’s rejection of the compact later that day. Professor Josh Bowers, who worked on the faculty letter had this to say about the turn of events: “I welcome the decision by Interim President Mahoney and University Administration to reject the problematic Compact. I hope other schools follow suit.”