“Sentence first — verdict afterward.” So cries the Queen of Hearts during the trial of the Knave of Hearts in “Alice in Wonderland.”
“Stuff and nonsense!” Alice says. “The idea of having the sentence first!”
Alice seems to believe in due process. The Trump administration, judging by its decision to cancel $400 million in federal grants and contracts to Columbia University without a hearing, does not.
On March 7, President Trump’s Joint Task Force to Combat Anti-Semitism announced that it was penalizing Columbia “due to the school’s continued inaction in the face of persistent harassment of Jewish students” and warned that additional funding cuts “could be made swiftly.” Columbia has more than $5 billion in federal grant commitments. The threat is existential.
Neither that announcement nor an earlier press release declaring the task force’s intention to review Columbia’s grants and contracts “in light of ongoing investigations for potential violations of Title VI of the Civil Rights Act” specifies which actions or omissions gave rise to “potential violations;” what evidence, if any, the task force considered; or even which grants and contracts are being canceled.
On March 14, the government presented Columbia with a list of demands it must fulfill as a “precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government,” including centralizing “all disciplinary processes under the Office of the President,” providing a plan to hold student groups accountable, empowering internal law enforcement and placing the Department of Middle East, South Asian and African Studies “under academic receivership for a minimum of five years.”
Columbia must feel like the Knave of Hearts. Investigations are “ongoing,” no judgment has been rendered and yet the sentence has already been pronounced.
Columbia has acknowledged that Jewish students there “were targeted, harassed and made to feel unsafe or unwelcome” as a result of pro-Palestinian protests on its campus last spring. But that’s where the inquiry is supposed to begin. Under Title VI, which prohibits discrimination in federally funded programs, an institution is only liable if it fails to respond adequately to harassment that is “so severe, pervasive, and objectively offensive … that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
An institution’s response is inadequate if it fails to “take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence, and address its effects,” according to the Justice Department’s Title VI Legal Manual.
Columbia called in the police to arrest demonstrators, expelled students, strengthened its disciplinary policies, established a new office to combat antisemitism, implemented antibias training and restricted access to campus. Whether it has done enough, quickly enough, can be debated, but that’s for the legal system to determine. Columbia is already subject to three separate federal investigations and multiple private lawsuits.
Like any respondent, Columbia is entitled to due process, a core tenet of American law designed to protect against the arbitrary exercise of government power. At a minimum, due process requires reasonable notice and an opportunity to be heard before an impartial decision-maker. It may also include a right to present evidence, to be represented by counsel, to receive a written decision with reasons based on the record and to have an appeal.
The administration appears to believe no process is due because “‘doing business with the Federal Government is a privilege,” even though the Department of Education’s Office for Civil Rights, which handles most Title VI cases, has always provided due process in the past. When conducting a compliance review or responding to a complaint, that office typically notifies the institution, carries out an investigation and, if it finds a violation, proposes a resolution agreement.
Under the Biden administration, the Office for Civil Rights entered into multiple resolution agreements with colleges and universities that it believed did not do enough to combat antisemitism, often requiring them to develop action plans, conduct climate assessments and offer antibias training.
The Office for Civil Rights has never before taken away federal funding. By law, it can only do so following an administrative hearing and as “a last resort, to be used only if all else fails,” because “cutoffs of Federal funds would defeat important objectives of Federal legislation, without commensurate gains in eliminating” discrimination.
The president’s antisemitism task force apparently sees cutting off federal funds as a first resort, a penalty that seems grotesquely disproportionate to Columbia’s alleged misconduct. This “remedy” will do little to dissuade the protesters who made Jewish students feel unsafe, while doing potentially irreparable harm to scientific research and the faculty, students and staff carrying it out.
Alas, the lack of due process should not be surprising, since its absence characterizes many recent administration actions, from arresting and threatening to deport a pro-Palestinian protester who holds a green card to stripping the security clearances of lawyers opposing Trump in court.
Notwithstanding the lawless nature of the task force’s action, Columbia has declared its commitment “to working with the federal government to address their legitimate concerns.” Like other major research universities, Columbia was already reeling from the Trump administration’s proposed cuts to federal science and health funding, and to proposals in Congress to lower the threshold for, and to sharply increase, the tax on large university endowments. The university cannot afford to lose hundreds of millions in federal funding.
Columbia may soon have company. The administration has warned 60 colleges and universities that they may be subject to Title VI enforcement actions for failing to do enough to protect Jewish students. Many campuses have already cracked down on protest activity, illustrating the chilling effect Trump’s sweeping campaign against higher education is having.
On the last day of the Constitutional Convention, Benjamin Franklin was asked what resulted, “a republic or a monarchy?” Franklin famously replied, “a republic, if you can keep it.” We will not keep it without due process.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.
