The Academy versus the Executive – Litigation roundup (updated)

As the last post highlights, universities — their budgets, their people, their programming — are under attack from the Executive Branch. So far, universities have not rushed to fight back. But the AAUP, professors, and other groups of academics have started to exert their muscle; in several recent, important lawsuits, these plaintiffs have stood up against the attacks on their universities.

Harvard AAUP v. DOJ (Funding Review)

On Friday, the Harvard Chapter of the American Association of University Professors filed a complaint and a motion for a temporary restraining order against Executive Branch officials, challenging the “pending investigation and review of Harvard University’s federal funds, including the threatened and imminent withdrawal or cancellation of federal funds” as in violation of the constitution (particularly the First Amendment) and the Administrative Procedure Act. As of the date of this post, the Court has not yet acted on the TRO. (A similar lawsuit was brought to challenge the restrictions on Columbia’s funding.)

Bedi v. US House Committee on Education (Subpoena to Northwestern Law’s Clinic)

Professors Bedi and Cohen, law professors associated with the Bluhm Legal Clinic at Northwestern Pritzker School of Law, filed this lawsuit against both US House defendants as well as Northwestern University defendants (the latter as nominal defendants). The House issued a subpoena targeted at the legal clinic, demanding details on “the function of legal clinics at Northwestern Law, including any written guidance on what constitutes appropriate work, and direction on appropriate client representation,” as well as personnel files on one of Prof. Bedi. The Plaintiffs filed a motion for a temporary restraining order, and the House Committee promptly withdrew its subpoena.

AAUP v. DOJ (Ideological Deportation Policy)

AAUP and other scholarly associations filed a lawsuit challenging, on First Amendment, due process, and Administrative Procedure Act grounds, “the large-scale arrests, detentions, and deportations of noncitizen students and faculty who participate in pro-Palestinian protests and other related expression and association (the ‘ideological-deportation policy’).” From paragraph 4 of the complaint:

Plaintiffs are associations whose members include thousands of faculty and students at universities across the country. They commence this action because the ideological-deportation policy, and the repressive climate it has engendered, has far-reaching implications for the expressive and associational rights of their U.S. citizen members, and for Plaintiffs themselves. The policy prevents or impedes Plaintiffs’ U.S. citizen members from hearing from, and associating with, their noncitizen students and colleagues. It makes it practically impossible for them to organize with those students and colleagues and to participate in political expression alongside them. It also makes it more difficult for them to benefit from those individuals’ insights and scholarship and to collaborate with them on academic projects. Plaintiffs themselves have also been harmed because they are no longer able to learn from and engage with noncitizen members to the extent they once did, and because they have had to divert resources from other projects to address the all-too-real possibility that their noncitizen members will be arrested, imprisoned, and deported for exercising rights that the Constitution guarantees.

The plaintiffs have moved for a preliminary injunction. Plaintiffs were supported by amici briefs from a number of additional scholarly groups. The Court scheduled for oral argument on April 23. 

AAUP & Association of American Medical Colleges v. HHS (NIH Funding Cuts)

In a set of 3 consolidated cases, Plaintiffs challenged the February decision by the National Institutes for Health to reduce all indirect rates for NIH grants to 15%, well below that which many universities had previously negotiated.  The plaintiffs include several universities. The Court agreed with the Plaintiffs, and found that the 15% cap conflicted with a federal statute and was adopted without following the procedures required by the Administrative Procedure Act. This has already led to a final judgment in plaintiffs’ favor, permanently enjoining the cuts. The case is now on appeal.

The impetus for these lawsuits illustrate just a fraction of the ways in which universities are being targeted at the moment, and some of the ways to fight back in court. As demonstrated by Professors Bedi and Cohen, as well the plaintiffs against NIH, fighting back can mean swift, significant victories. So far, however, with the exception of the NIH funding cut, universities have not been quick to serve as plaintiffs, even as they absorb serious injuries to their mission, their finances, and their people. Perhaps as the threats worsen, or as other plaintiffs continue to notch victories for the rule of law, universities will reconsider how much interference they are willing to tolerate, and be willing to assert their rights in court.

UPDATE: New reporting highlights just how arbitrary (really, capricious) and lawless the funding cutoffs on universities seem to be: “What if we never pay them? Wouldn’t that be cool?” mused the President.

UPDATE 2: Harvard has lawyered up: “Harvard is not prepared to agree to demands that go beyond the authority of this or any other administration.”

UPDATE 3: Made a chance to clarify that universities are serving as plaintiffs in the NIH funding cuts lawsuit. 

-Joseph Mead