The action of the Trump administration in suspending several hundred million dollars in aid to Columbia University and in threatening a half-dozen other leading universities with similar treatment has aroused indignation among liberal-minded persons, but few have noted what made this outrage legally possible.

　　I did not attend Columbia, but I have some attachments to it. My mother held a graduate degreefrom there, and my father was an archivist and faculty member who linked hands with hiscolleagues to prevent the School of International Affairs from being vandalized during the 1968disturbances. He had limited sympathy with the demonstrators, but none with their methods, andwas quoted as suggesting that they would have done better to demonstrate outside a federalbuilding—agood suggestion for our time also.

　　The ostensible basis for the Trump administrations actions is Columbia’s alleged failure to sufficiently punish antisemitic speech by some of its students. The administrations statements have been imprecise about what is objected to, citing violence and harassment without identifying specific acts. Protest language about Israel’s conduct in Gaza seems to be lumped in with antisemitism, as is advocacy of a one-state solution or other questioning of the status quo. This was also the ground on which the University of Southern California denied speaking rights to a Palestinian valedictorian after pressure from those disagreeing with her views, a classic example of what the free speech scholar Harry Kalven decried as the hecklers veto.

　　Liberals, including Jewish liberals, regard the Trump administration’s action with outrage, but they have failed to identify its cause and cure. If they looked harder, they would find that the power of a president to withhold federal funds over perceived civil rights violations exists only thanks to righteous progressive lobbying.

　　Fund-withholding provisions were included in the Civil Rights Act of 1964 as a means of discouraging racial segregation in Southern schools. Latitudinarian judges extended the prohibition of discrimination to include creation of so-called “hostile environments,” the telling of off-color jokes, criticism of particular women or racial minorities, and other matters which in a free society are regulated by manners, not laws.

　　In the case of Grove City College v. Bell, the Supreme Court held in 1984 with only Justices Brennan and Marshall dissenting,that the 1964 Civil Rights Act, whose legislative history was exhaustively discussed by Justice Byron White, did not justify the withholding of funds from entire institutions, but only from the portions of them alleged to be discriminating. In 1987, Congress, urged on by Sen. Edward Kennedy, enacted the so-called Civil Rights Restoration Act, which allowed all of an institution’s federal funds to be withheld, including loans made available to students. Though colleges have a theoretical right to appeal fund withholding decisions to the courts, the high stakes have caused college administrations to automatically accede to federal demands, including not only those in formal regulations but those in so-called “Dear Colleague” letters.Senator Kennedy was no moderate when it came to politicizing the courts, most notoriously in his inflammatory opening statement in opposition to the nomination of Robert Bork.

　　There can be no doubt that most colleges capitulated too readily to the left in their willingness to coerce nonconformist students and professors, but centralized government coercion from the right is at least equally to be feared.

　　The 1987 Act was vetoed by President Reagan, who decried “the over-expansion of government power over private organization decision-making.”

　　The Democratic Congress nonetheless overrode his veto, with all 52 Democratic Senators, along with 21 Republicans, and 240 of 250 Democratic House members, voting to override. Their assumption was that only politically correct persons would thereafter occupy the presidency. Not for them was the warning of Justices Frankfurter, Robert Jackson, and Owen Roberts in Screws v. United States, a 1946 civil rights case that “evil men are not given power; they take it over from better men to whom it had been entrusted.” They didn’t imagine that one day their civil rights power would be wielded in ways they would not personally endorse.

　　Such power, though perhaps well-intentioned, allows the federal government to strangle institutions that don’t fall in line with its vision of social order. It erodes the functional autonomy of essential institutions to make their own rules and pursue their own mission, especially given the expansive understanding of civil rights that took hold in the 1970s and 80s. It often undercuts academic freedom and standards, adds to administrative bloat, and restricts the rights of students and faculty.

　　During the Obama and Biden administrations, the threat of institution-wide fund withholding wasused to induce numerous colleges to deny students accused of sexual wrongdoing rights ofcross-examination and other elements of due process. Dozens of court cases, brought bystudents, rather than intimidated college administrators, condemned these efforts.

　　In the current instance, theColumbiaadministration has predictably been negotiating with Washington the terms on which it willsurrender the freespeech rights of its students and faculty. There can be no doubt that mostcolleges capitulated too readily to the left in their willingness to coerce nonconformist studentsand professors, but centralized government coercion from the right is at least equally to be feared.

　　There is yet no sign of repentance by the “liberal” law professors who supported the “Restoration Act” in defiance of the principle that “what goes around, comes around.” Perhaps the Supreme Court, which in the Obamacare case, NFIB v. Sebelius, has begun to curb the federal conditional spending power may rescue the universities if any of them are brave enough to appeal. The Sebelius case makes impermissible the imposition of new conditions on aid that institutions have already accepted; the governments adding of political speech to prohibitions of discrimination transgresses this standard.

　　If the Supreme Court does not repudiate political coercion, recourse must be had to Congress, which should be asked to repeal the 1987 Act and otherwise restrict fund-withholding sanctions to reasonable limits. While they’re at it, Congress could also usefully dispose of the Civil Rights Attorneys’ Fees Act, whose one-way fee shifting against colleges and school districts has deprived them of effective disciplinary powers and has prevented the adoption of selective drug testing of their increasingly spaced-out students, a demand-side approach to the drug war that is likely to be more effective than unleashing the American military upon the Mexican drug cartels. The statute assesses fees against defendants even when the plaintiffs are only partially successful, while not allowing colleges and school districts to recover the costs of defending frivolous cases Former Stanford President Gerhard Casper has eloquently pointed out the consequences of that statute in his memoir: a shower of lawsuits and demands for settlement from persons who are dismissed, disciplined, or not promoted, and huge defense costs even in pro se cases.

　　Unfortunately, we live in an era when “liberals” are wedded to the national state, and too many “conservatives,” to quote the late independent historian John Lukacs, “hate liberals more than they love liberty.” It will be a while before American universities recover the four freedoms asserted by South African academics protesting against apartheid: “freedom to determine on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” The culture wars in academia can only be mitigated by the colleges own constituencies, as is beginning to happen. Federal creation of synthetic martyrs is not the cure.