Government

Trump Can’t Cut Off Berkeley’s Funds by Himself. His Threat Still Raised Alarm.

February 03, 2017

President Trump at the National Prayer Breakfast on Thursday. Earlier that morning, he tweeted his annoyance with Berkeley's decision, amid violent protests, to cancel a conservative speaker's talk. The tweet may have carried a hollow threat, but it put universities on notice that they need to tread carefully in free-speech controversies.
Back in October, when President Trump vowed to "end" political correctness on college campuses, it was unclear how the then-presidential candidate planned to go about doing that.

On Thursday, he dropped a hint: He threatened to cut off federal funding to the University of California at Berkeley after violent protests there prompted campus leaders to call off a talk by a far-right provocateur.

Milo Yiannopoulos is a Breitbart News editor and Trump supporter who has for months traveled to campuses to give talks that often draw protests and have sometimes resulted in violence. He was once permanently banned from Twitter for his role in a harassment campaign against the actress Leslie Jones, and he has drawn heavy fire for his insulting comments about feminists, Black Lives Matters protesters, Islam, and topics he considers part of leftist ideology.

Mr. Yiannopoulos was scheduled to speak on Berkeley’s campus late Wednesday, as part of his "Dangerous Faggot" tour, and more than 1,500 students gathered outside the venue to peacefully protest. Then about 100 additional protesters — mostly nonstudents, Berkeley officials said — joined the fray and hurled smoke bombs, broke windows, and started fires. The violence forced the campus police to put Berkeley on lockdown and led university leaders to cancel the event.

The following morning, a political commentator suggested on Fox & Friends First that President Trump should take away Berkeley’s federal funding. Shortly thereafter, Mr. Trump decided to weigh in.

Not surprisingly, Mr. Yiannopoulos liked that idea. On Facebook Thursday, he linked to a Breitbart article about the federal money Berkeley receives, adding, "Cut the whole lot, Donald J. Trump."

Others were quick to condemn the president’s threat. U.S. Rep. Barbara Lee, a California Democrat whose district includes the Berkeley campus, tweeted back: "President Trump doesn’t have a license to blackmail universities. He’s the president, not a dictator, and his empty threats are an abuse of power."

Later, in a statement, Ms. Lee said Mr. Yiannopoulos "has made a career of inflaming racist, sexist and nativist sentiments." Meanwhile, she wrote, "Berkeley has a proud history of dissent and students were fully within their rights to protest peacefully."

Could Mr. Trump take away a university’s federal funding for what he sees as a violation of the First Amendment? Not on his own, and not entirely, some scholars say, though there are ways he could advocate for cutting some of it.

Regardless, Mr. Trump’s singling out of Berkeley is worth paying attention to, they say, because it serves as a message to other campus officials that they may soon be put in the position of responding to the president’s social-media whims.

How Berkeley Prepared

Berkeley’s chancellor, Nicholas B. Dirks, went to great lengths last week to explain why the university would not give in to demands to cancel Mr. Yiannopoulos’s appearance. The First Amendment, the chancellor wrote, does not allow the university to censor or prohibit such events.

"In our view, Mr. Yiannopoulos is a troll and provocateur who uses odious behavior in part to ‘entertain,’ but also to deflect any serious engagement with ideas," Mr. Dirks wrote.

But, he added, "we are defending the right to free expression at an historic moment for our nation, when this right is once again of paramount importance." Mr. Dirks went on to warn that the university "will not stand idly by" if anyone tries to violate university policies by disrupting the talk.

Still, the furor over the protests delighted many activists who have been arguing for years that pressure to be politically correct on campuses has stifled those with conservative views.

Among them were members of the "alt-right" movement, a loosely affiliated group characterized by its white nationalist, sexist, and anti-Semitic views.

The group clearly felt vindicated by the president’s assertion that Berkeley doesn’t allow free speech, which came on the heels of the online discussion group Reddit banning an alt-right community for publishing personally identifiable information about people it is criticizing.

On Thursday, Mr. Dirks released a statement doubling down on his earlier comments about the campus’s commitment to free speech. The violence, he said, was perpetrated by "more than 100 armed individuals clad all in black who utilized paramilitary tactics to engage in violent, destructive behavior" designed to shut the event down.

"We deeply regret that the violence unleashed by this group undermined the First Amendment rights of the speaker as well as those who came to lawfully assemble and protest his presence."

The university had anticipated a large crowd of protesters at Mr. Yiannopoulos’s talk on Wednesday night and had brought in dozens of police officers from across the university system to help maintain order. But "we could not plan for the unprecedented," Mr. Dirks wrote. The event was called off only after the campus police concluded that the speaker had to be evacuated for his own safety, he added.

“We could not plan for the unprecedented.”
Mr. Trump’s threat was also criticized by a group that is known for condemning campuses that it sees as violating free speech rights. The Foundation for Individual Rights in Education, known as FIRE, released a statement Thursday objecting to "both violence and attempts to silence protected expression."

The group said, however, that it had seen no evidence that Berkeley, as an institution, had made any effort to silence Mr. Yiannopoulos, and that the university had, in fact, resisted calls to cancel his visit until the situation got out of hand.

FIRE added a caution that seemed to be directed at President Trump’s threat to strip funding from Berkeley. "To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful," its statement said.

Withholding Federal Funds

The idea of punishing colleges for free-speech controversies was originally Ben Carson’s idea, said Jonathan Zimmerman, a professor of the history of education at the University of Pennsylvania. Mr. Carson, a neurosurgeon and former Republican presidential candidate, said in October 2015 that he would have the U.S. Department of Education "monitor our institutions of higher education for extreme political bias and deny federal funding if it exists."

Terry W. Hartle, a senior vice president at the American Council on Education, took the question mark on the end of Mr. Trump’s tweet literally. The president might have been asking, Could I withhold federal funds from Berkeley? Mr. Hartle said.

Yes, the federal government has the authority to withhold federal funds like financial aid from colleges that engage in certain activities, Mr. Hartle said. And it has the authority to attach conditions to the money it gives out. The Solomon Amendment, for instance, requires colleges to admit ROTC or military recruiters to their campus or risk losing money.

But Congress would have to act to give the government the ability to take away federal funds for controversies involving the First Amendment, Mr. Hartle said.

The government also couldn’t pull funding from Berkeley by retroactively saying the institution’s federal money is contingent on protecting free speech, said Alexander (Sasha) Volokh, an associate professor of law at Emory University.

"If the funding comes explicitly with strings attached, which is that you must adequately protect free speech on your campus if you want these funds, and if the university takes these funds knowing the condition, that’s one thing," he said.

The U.S. Supreme Court has weighed in several times on strings attached to federal funding, Mr. Volokh said, and has determined that such conditions must be clearly stated in advance and related to the matter being funded.

For instance, he said, the court said it was OK for the government to tie federal highway funds to a requirement for states to adopt a drinking age of 21, because highway safety could be affected by the drinking age. But the National Institutes of Health probably couldn’t attach a requirement for free-speech protection to a grant for researching Ebola, he said.

Moving forward, Mr. Trump could tell federal research agencies that some of their contracts with colleges and researchers should now include stipulations about free speech, Mr. Volokh said. "I have the feeling that Trump had something much blunter in mind," he said.

‘Uncharted Territory’

Mr. Trump’s social-media attack on Berkeley raises another question for colleges: how to respond to such tweets. "This is uncharted territory for all organizations," not just colleges, Mr. Hartle said, citing Mr. Trump’s criticism of Boeing for what he considered to be an overpriced contract for constructing two Air Force One planes that future presidents will use. (Boeing subsequently promised to keep the cost below $4 billion.)

“You can't just ignore it if the president of the United States tweets about you.”
It might not be wise to pick a fight with someone who has millions of Twitter followers, Mr. Hartle said, but "you can’t just ignore it if the president of the United States tweets about you."

Berkeley is in a particularly difficult situation, Mr. Hartle said, because in his view the university did everything right when Mr. Yiannopoulos came to the campus. "Berkeley tried to allow him to speak and to allow protesters to protest," he said. "Everything was fine until the protests turned violent."

One challenge for colleges, he said, will probably involve dealing with people, particularly nonstudents, who want to disrupt speakers and who "now see resorting to violence as simply another tactic in an effort to accomplish their purpose."

If Mr. Trump were to push Congress to pass a law giving him the authority to take away federal funds from colleges for free-speech controversies, Mr. Hartle said, "they should carve out some sort of exception when it involved violence or a police request."

“Trump is not wrong when he says a lot of people on these campuses want to squelch free speech.”
While the president might not make such legislation a priority, college officials shouldn’t dismiss his criticism of Berkeley, said Mr. Zimmerman, of Penn. "It’s ridiculous and frightening for the president to be threatening to withhold money based on his perception of what’s happening with free speech on campus," he said. On the other hand, he said, "Trump is not wrong when he says a lot of people on these campuses want to squelch free speech."

When institutions disinvite speakers or try to quash a right-wing group’s event or demonstration, Mr. Zimmerman said, "they’re playing right into Trump’s hands."

Given the violence, Mr. Zimmerman doesn’t begrudge Berkeley’s administration for canceling the speech. But he described as problematic a letter signed by dozens of professors saying that Mr. Yiannopoulos shouldn’t be allowed to speak on campus.

Ultimately, Mr. Volokh is more concerned about the way in which Mr. Trump made his point, versus the content of the tweet. "It wasn’t enough for him to say that free speech is important," Mr. Volokh said. "He had to do it in a way that was threatening."

Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.