by Dick Hall-Sizemore

(Author’s Note: The following article is unusually long, even by my standards. The subject is a federal policy document recently sent to the University of Virginia and eight other institutions of higher education. The document is ten pages long and contains numerous provisions which could have a significant impact on higher education and, thus, deserve extensive explanation and discussion.)

The University of Virginia has been offered an opportunity to obtain “allowance for increased overhead payments where feasible, substantial and meaningful federal grants, and other federal partnerships”, as well as an invitation to the White House.  All it has to do is give up its academic freedom and financial independence.

This offer comes in the form of a “Compact for Academic Excellence in Higher Education,” sent to UVa, along with a letter from the Secretary of Education asking for comments by Oct. 20 and “a signed agreement by no later than November 21, 2025.”  UVa was one of nine institutions of higher education offered this opportunity.  The others were Vanderbilt University, Dartmouth College, the University of Pennsylvania, the University of Southern California, the Massachusetts Institute of Technology, the University of Texas at Austin, the University of Arizona, and Brown University.

The compact document declares that “it represents the priorities of the U.S. government in its engagements with universities.”  It sets out ten areas which would constitute the agreement between the university and the federal government.

COMPACT PROVISIONS

1. Equality in Admission

The compact would prohibit any “factor such as sex, ethnicity, race, nationality, political views, sexual orientation, race, nationality, political views, sexual orientation, gender identity, religious association, or proxies for any of those factors” to be considered “explicitly or implicitly” in any decision related to student admissions or financial support.

It would require that “university admission decisions be based upon and evaluated against objective criteria published on the university’s website.”  Institutions must require all applicants to take a “widely-used standardized test,” such as the SAT or ACT.

Comments

It is clear that, for those institutions agreeing to the compact, admissions must be based on GPAs or SAT/ACT scores.  Any other criteria would not be objective, apparently.  Therefore, if UVa were to sign onto this compact, it would only need to rank all the applicants in the order of their SAT scores and offer admission to the top scorers.  If the target size of the incoming class were 3,000, then the top 3,000 applicants by SAT would get offers.  (That should make the job of the Dean of Admissions a lot easier and reduce the need for large admissions departments!)

UVa would not be able to diversity is incoming class. If 75 percent of the top scorers were from out of state, it would not matter; they would get letters of acceptance.  It could not place an informal cap on students accepted from Northern Virginia or other urban areas of the Commonwealth.  It could not give preference to first generation college students.  It could not give any preference to worthy applicants who had shown resilience and perservance in overcoming poverty and racial discrimination (as would be allowed by the Supreme Court).  In summary, its incoming class could well be a fairly homogeneous group of students, not really reflective of the Commonwealth.

There is another question looming here.  What will happen to the athletic teams of institutions who sign on to the compact?  The compact would require that admissions be based on “objective criteria.”  If an athlete, who was admitted, had a lower SAT score than someone who was not admitted, would that constitute a violation of the compact?

2. Marketplace of Ideas and Civil Discourse

Under the terms of the compact, UVa would be committed to “transforming or abolishing  institutional units that purposefully punish, belittle, and even spark violence against conservative ideas.”  There would need to be an “empirical assessment of a broad spectrum of viewpoints among faculty, students, and staff at all levels and to sharing the results of such assessments with the public.”

UVa. would be required to create a campus environment in which “a broad spectrum of ideological viewpoints [are] present and no single ideology dominant, both along political and other relevant lines.”

There are provisions requiring institutions to ensure conditions of civility.  It would make institutions responsible for not knowlingly “(1) permitting actions by the university, university employees, university students, or individuals external to the university to delay or disrupt” classes, libraries, or other study locations, “(2) allowing demonstrators to heckle or accost individual students or groups of students” or “(3) allowing obstruction of access to parts of campus based on students’ race, ethnicity, nationality or religion.”

Finally, the compact would require signatories to adopt policies “prohibiting incitement to violence, including calls for murder or genocide or support for entities designated by the U.S. government as terrorist organizations.”

Comments

Presumably, “units” that “belittle” liberal ideas would be acceptable.

Taken at face value, the compact would require advocates of capitalist and socialist ideologies to be balanced, as well as adherents of democracy, communism, and autocracy.

Left unaddressed in the compact is the problem of creating such a “broad spectrum of ideological viewpoints” with “no single ideology dominant” if such an environment does not currently exist in an institution.  Jim Bacon and many commenters on this blog have been loud and insistent that liberals and progressives totally dominate the UVa faculty.  If UVa were to join this compact, how would it correct this purported imbalance? Fire a bunch of “liberal” professors?  But, wouldn’t that be firing people based on their political ideas, which runs counter to other portions of the compact?  Go out and hire a lot of conservative ones?  But, wait.  Another item in the compact would require that the basis of hiring faculty be “meritocratic” and “objective and measurable criteria.”  Using such criteria, one could not be sure if a faculty applicant were properly conservative.

The compact also includes students in this “marketplace of ideas.”  There is to be an “empirical assessment of a broad spectrum of the viewpoints” of the members of the campus, including students.  What if that assessment indicates that there is not a broad enough spectrum of viewpoints among students, i.e. the student body leans too far to the liberal side or too far to the conservative side?  How is that to be rectified?  The university certainly could not try to recruit students from areas in which the political environment matches what is needed to balance the campus environment.  The university has to base its admissions on test scores and cannot consider an applicant’s “political views” during the admissions process.  (See Issue no. 1)

3. Nondiscrimination in Faculty and Administrative Hiring

The compact calls for “a steadfast commitment to rigor and meritocratic selection based on objective and measurable criteria” in the faculty appointment process.  It also calls for a compact signee to comply with the Civil Rights Act and not discriminate on the basis of sex, ethnicity, race, national origin, disability, or religion.

Comments

What constitutes “objective and measurable criteria” when considering the filling of a faculty position?  The number of publications such as books and articles published by the candidate?  What if those books or articles are crappy, not original, or shallow?  Are such subjective evaluations to be prohibited?  What if the applicant is qualified from an academic perspective, but is a boor and has a reputation for being a disruptive factor at other institutions?  Some subjectivity is inevitable in filling such a position.  Also, this requirement could be at cross purposes with the requirements of Issue No. 2.

4. Institution Neutrality

Signatories of the compact would be required to maintain “institutional neutrality at all levels of their administration.”  That would mean that “all university employees, in their capacity as university representatives, will abstain from actions or speech relating to societal and political events except in areas in which external events have a direct impact on the university.”

Comments

It is not clear “what capacity as university representative” means.  As Tyler Coward, lead counsel for governmental affairs for the Foundation for Individual Rights and Expession (FIRE), an organization often cited on this blog, observed, “If the language merely barred high-ranking employees from engaging in partisan political activity on behalf of the university, it would reflect existing and generally permissible IRS restrictions. But the compact’s reported wording goes further by suggesting a blanket prohibition on all staff engaging in political speech.”

5. Student Learning

The compact would prohibit grade inflation for “any non-academic reason.”  A grade must “rigorously reflect the demonstrated mastery of a subject that the grade purports to represent.”  Signatories to the compact are held accountable to demonstrate their commitment to grade integrity, such as “publishing grade distribution dashboards with multi-year trendlines, public statements that explain student outcomes and any unusual trends, and comparisons with peer institutions.”

Comments

This seems a rather trivial item to be included in such a compact.  How does one determine or prove that grades have been inflated?  Any instructor could surely provide academic reasons for any purported grade inflation. 

Furthermore, a college or university does not generally intrude upon how an instructor grades his or her students.  As set out in guidelines established by the American Association of University Professsors, academic freedom includes the “freedom to evaluate the academic performance of students enrolled in courses [instructors] teach.”

The compact’s requirement to compare grade distributions with those of peer institutions makes no sense.  Similarly-named courses in different institutions will cover different material and have different sets of instructors.

6. Student equality

The compact requires that all students be treated “as individuals and not on the basis of their immutable characteristics,” except when it comes to gender identity.  In those cases, they must be treated on the basis of their “immutable characteristics.”  Signatories would be required to provide single-sex spaces, such as bathrooms and locker rooms.  They would also commit to interpreting “male”, “female”, “woman”, and “man” according to “reproductive function ad biological processes.”

Comments

UVa. would have to change its policies, practices, and facilities to comply with this Item.  Its website states, “Sex-specific facilities at the University, such as restrooms and locker rooms, are available to individuals based on their gender identify.”  Also, there are gender-neutral restrooms available throughout the campus.

7. Financial Responsibility

This section of the compact comprises a major effort to have institutions control their costs by reducing administrative costs and eliminating academic programs that fail to serve students.

Signatories to the compact would commit to freezing tuition rates for American students for the next five years.  Furthermore, any university with an endowment exceeding $2 million per undergraduate would be prohibited from charging tuition for any any student pursuing “hard science programs”.

Also, all institutions would be required to post statistics about average earnings from graduates in each academic program.  Finally, each institution would be required to refund tuition for students who drop out during their first academic term.

Comments

Freezing tuition is an especially effective method to get higher ed institutions to look critically at their administrative and programmatic costs.  However, the Trump administration’s proposed contract raises some basic questions in this area.  Is a freeze on tuition for five years a reasonable period of time?  Should a state-supported institution of higher education abdicate its control over its finances to the federal government?  What does the federal government’s control over an institution’s tuition policies portend for the future of that institution?  Conservatives have generally been extremely adverse to government price controls.  How does this mandated tuition freeze fit into conservative philosophy?

As far as the provision relating to some institutions having to provide a “free ride” to students studying hard sciences, among the group of institutions contacted in this round, only the Massachusetts Institute of Technology would be affected.

8. Foreign Entanglements

Much of this section is dedicated to requiring compact signatories to comply with existing federal law, such as anti-money laundering, Know-Your-Customer, and foreign gift disclosure laws.

It also includes the following provisions:

1. Capping the number of foreign undergraduate students at 15 percent of an institution’s undergraduate population, with only five percent allowed from any single country.  This cap would not affect UVa.   In the current academic year, it has 921 international undergraduate students, which constitute 5.2 percent of its undergraduate enrollment of 17,488.
2. Admission of foreign students solely on the basis of “demonstrably extraordinary talent,” rather their ability to pay full tuition.
3. Requiring the university to screen out foreign students “who demonstrate hostility to the United States, its allies, or its values.”
4. Requiring universities to provide instruction in American civics to all foreign students.
5. Requiring the sharing of all information about foreign students, including discipline records, upon request to the Dept. of Homeland Security and the Dept. of State.

The section also focusses on financial contributions to American higher ed by foreign sources, requiring all signatories to promptly disclose all funding from foreign institutions and individuals.  Furthermore, “no foreign funding may in way encourage or restrict the hiring of any persons or the teaching of any particular perspective or the admission of any foreign student or group of students.”

Comments

As with Item No. 7, it seems redundant to require signatories to comply with existing federal statutes. 

Some of the requirements of this Item of the compact seem unenforceable.  For example, how is the Dept. of Justice going to determine whether a university limited its admission of foreign students to those with “demonstrably extraordinary talent”?

Furthermore, to be admitted, a foreign student must have a visa issued by the State Department.  Isn’t it the State Department’s job, that than the university’s, to “screen out students who demonstrate hostility to the United States”?

The concern with universities receiving funding from foreign entities goes back to the first Trump administration.  Although legislation enacted in 1965 requires institutions of higher education to report, semiannually, any foreign gift or contract totaling more than $250,000, the Dept. of Education reported in 2020 that it had documented at least $6.5 billion in previously unreported foreign money and believed that amount “is a fraction of the true total.”  The report declared that “there is very real reason for concern that foreign money buys influence or control over teaching and research.”

A report by the American-Israeli Cooperative Enterprise provides details on the billions of dollars that have flowed to American higher ed from Arab countries, primarily from Qatar, Saudi Arabia, and the United Arab Emirates, all strong allies of the Trump administration.  A large portion of the funding from Arab countries is for financial assistance of students, especially those from Saudi Arabia.  Other major purposes of the contributions are to establish centers for Mideastern studies and to endow professorships in those areas.  Those purposes would be prohibited under the compact.

The failure to disclose foreign contributions is the only item that the compact document explicitly says would be a violation of the compact.  As outlined in Item No. 10, a violation of the compact has serious consequences.

9. Exceptions

The compact would allow religious institutions to have preferences for religious affiliation or belief in hiring and admissions decisions.  Single-sex institutions may “maintain sex-based preferences.”  However, nothing in the compact would override provisions of the Civil Rights Act.

10. Enforcement

Each signatory would be required to conduct “an independent, good faith, empirically rigorous, and anonymous poll of its faculty, students, and staff” to gauge the university’s performance under the contract. The results of the poll would be made publicly available on the institution’s website. 

As for actual enforcement, adherence to the agreement would be subject to review by the Dept. of Justice.  If an institution were found to have willfully or negligently violated the agreement, the institution would lose access to the benefits of the agreement for at least one year; for subsequent violations, loss of access for at least two years.

Furthermore, “upon determination of any violations, all monies advanced by the U.S. government during the year of any violation shall be returned to the U.S. government.”  Also, “any private contributions to the university during the year(s) in which such violation shall be returned to the grantor upon the request of the grantor.”

Comments

It is not clear what “benefits” a university would risk losing access to.  The introduction to the compact lists the following benefits accruing to institutions of higher education from its “extraordinary relationship with the U.S. government”:

1. Access to student loans, grant programs, and federal contracts;
2. Funding for research directly and indirectly;
3. Approval of student visas; and
4. Preferred tax treatment.

The letter from the Secretary to the acting president of UVa.is less specific,  alluding to “substantial and meaningful grants, and other federal partnerships.”

Based on those provisions, a violation of the compact by an institution could lead to a one-year suspension of student loans (“access to student loans”), for example.  Even more significantly, any violation (willful or negiligent) of the compact would (“shall”) result in the institution having to refund to the U.S. government “all monies” advanced during the year of any violation.  That would include student loan funding, research grants, contracts, etc.

Finally, and most importantly, “adherence to this agreement shall be subject to review by the Dept. of Justice.”  The findings of any review would be final.  There would be no administrative process act protections for the institutions.  There would be no appeal to the courts available.  Presumably, to take an extreme example, DOJ could define a course being taught at an institution as a “unit” and any criticism by the instructor or the assigned materials in the course that criticized the Trump administration or its policies (“belittlement of conservative ideas”) as being a violation of the compact, triggering the various enforcement actions.

It is worth noting that there is no provision for leaving the compact.

SCOPE

As already stated, the letter citing this “opportunity” went to only nine schools.  The implication in the Secretary’s letter is that this is the first round in which the administration is seeking “limited, targeted feedback” to a document “largely in its final form.”  Ultimately the administration aims to have a compact “agreed to by a wide range of excellent universities and supported by philanthropists.”  Another administration official confirmed that the compact could be extended to all colleges and universities.  “We hope all universities ultimately are able to have a conversation with us,” Mary Mailman, senior adviser for special projects at the White House, said.

Presumably, agreement to the compact by these selected universities would put pressure on other institutions to agree to it.  Asked why these specific schools were chosen, Mailman replied that the White House believed they are “good actors.  They have a president who is a reformer or a board that has really indicated they are committed to a higher-quality education.”  (That comment will only serve to vindicate those Democrats who claim the UVa. Board was in cahoots with the Trump administration to oust Jim Ryan.)

CONSEQUENCES OF NOT SIGNING THE COMPACT

The introduction of the compact includes this ominous statement, “Institutions of higher education are free to develop models and values other those below [the 10 Items described above[, if the institution elects to forego federal benefits [the four “benefits” listed in the compact and in comments to Item No. 10].”

The clear implication is that any institution that does not agree to the compact would be cut off from all federal money, including student loans.  However, the Trump administration  claims that the objective is less onerous.  According to the Wall Street Journal, Mary Mailman declared that it is not the administration’s intent to limit federal funding to those schools that sign onto the compact, but only to give them priority for grants when possible.

REACTION

The UVa. administration has publicly responded to the opportunity presented by the federal government in a manner that would be expected:  we are reviewing it.  A UVa. spokesperson told Cville Right Now,  “Interim President Mahoney received a letter (Wednesday) night from the Secretary of Education and White House officials regarding the ‘Compact for Academic Excellence in Higher Education.  This morning, he created a working group under the leadership of Executive Vice President and Provost Brie Gertler and Executive Vice President and Chief Operating Officer J.J. Davis to advise him on the University of Virginia’s response to the letter. The University has not yet made any decision regarding the Compact.”

With one exception, the other schools involved have not commented publicly or said they were reviewing the compact and the Secretary’s letter.  The one exception is the University of Texas at Austin.  The chairman of the UT System Board of Regents exclaimed they were “honored” to be one of only nine institutions “selected by the Trump administration for potential funding advantages.”

The reaction elsewhere has been one of outrage.  A spokesman for the American Association of University Professors declared, “Basically this is a continuation of the theme we have been witnessing since the beginning of this second Trump administration, and that is that if universities don’t acquiesce to the administration’s ideological agenda, then they will be punished.”  The president of the American Council on Education called it a “Faustian bargain.”  Governor Gavin Newsom of California warned that any California universities signing the compact would lose access to all state funding.  Newsom declared that California “will not bankroll schools that sell out their students, professors, researchers, and surrender academic freedom.”

Many have claimed that some of the components of the contract would be violation of federal law and some unconstitutional. Just as has been the case with other Trump actions, this one is likely to spark lots of litigation.

Tyler Coward of FIRE issued this warning:  “A government that can reward colleges and universities for speech it favors today can punish them for speech it dislikes tomorrow.  That’s not reform.  That’s government-funded orthodoxy.”

MY SOAPBOX

Many of the stated goals of the compact are noteworthy.  Nurturing a “vibrant marketplace of ideas,” reducing the cost of higher education, reducing or eliminating grade inflation, treating students equally, admitting students based on merit, hiring faculty on the basis of merit and not ideology, and avoiding undue control by foreign entities are all concepts and goals that enjoy broad support.

The obvious problem with the compact is that the Trump administration is trying to force its version of these goals on higher education.  Conservative ideas cannot be belittled; universities must use SAT/ACT scores as the sole measure of which students to admit; no more holistic evaluation of applicants; no more striving for geographic, regional, or background diversity in student populations; limitations on the number of foreign students; rejection of gender identity as a means of classifying students; among others.

What I find most troubling about this proposal is the opaqueness of the administration. Publicly, administration officials downplay the consequences of signing or not signing the contract.  They emphasize the carrot, the incentive, of getting priority status for the consideration of unspecified federal grants and benefits.  If that is the true result, it seems that universities would be giving up a lot for benefits that are fuzzy, at best.

On the other hand, the terms of the compact itself are clearly the opposite—it is a stick, not a carrot.  The message is simple, “Agree to these terms or lose all federal funding, foreign students, and your tax-free status.  Furthermore, violate any of these terms and you will lose those federal benefits as well as pay back whatever federal funds you received in that year.”

Such conditions would enable the federal government to micromanage higher education from which students that colleges and universities can admit to what faculty members are hired to what those faculty can say in their classes to how those faculty members assign student grades to how much tuition the institutions can charge those students.  For an administration that has expressed a determination to abolish the Dept. of Education and “move education back to the states where it belongs,” this is certainly an incongruous position.