Trump vs. Academia: Inside the Battle Over Campus Speech

Episode Transcript

John Tomasi: Joe Cohn, welcome to Heterodox Out Loud.

Joe Cohn: Thank you so much, John. It's really so great to be here.

John Tomasi: It's nice to have you down the hallway to the podcast studio, because, of course, you work here at HxA. You joined the team as our policy director in, was it August?

Joe Cohn: Yeah, it was the first week of August, and not a lot has happened since then. It's been pretty sleepy.

John Tomasi: Tell us a bit about what you did before you joined HxA.

Joe Cohn: Well, I'm a lawyer, as, you know, John, well, you know, but as the listeners and watchers might not, who's spent most of my career doing First Amendment work. And 12 years of that as the head of government relations for FIRE, and I left FIRE in December of 23 to run for Congress. It was an unsuccessful bid, but that's what brought me in.

John Tomasi: And where did you run? Where were you running?

Joe Cohn: I live in Southern Jersey, and so it was the New Jersey 3rd Congressional District. And it was a really, you know, rewarding experience getting out there and meeting people and sharing my vision of what, you know, the country should look like. But most of my career has been working on higher ed, you know, issues and civil liberties and higher ed. And coming to Heterodox Academy felt like just a really natural fit.

John Tomasi: So let's dive in. There's so much happening, as you said. We joke that your office is one of the dead spots around here. In fact, it's the most lively, one of the most lively sections of HxA over recent months. On January 20th, as you know, I wrote a letter to the Trump administration congratulating President Trump on his inauguration and recommending that they could advance HxA's mission through pursuing four main policies. First, ending political litmus tests and hiring and promotion of faculty, the DEI hiring requirements. Implementing Title IX regulations that prevent discrimination without infringing on academic freedom. Third, navigating campus unrest while protecting free speech and free expression. And fourth, thoughtfully addressing anti-Semitism on campus. In the months since that I wrote that letter, a lot's gone on. Let's just dive in and let me invite you to, let's do some, give us some highlights of things that have come out of the executive suite. Since President Trump's inauguration.

Joe Cohn: Yeah, it started actually on inauguration day itself when the president issued a flurry of executive orders and took a series of actions, many of which impacted higher education directly. So, for example, there were executive orders on DEI. There was an executive order called one on restoring merit-based opportunities, one trying to rein in how the administration perceived gender ideology on college campuses, and yet another one on anti-Semitism. He had already issued his first executive order on anti-Semitism during his first term that was still in effect. And then you saw a bunch of agencies take immediate actions as well. So, for example, the White House's Office for Management and Budget sends out a memo ordering all federal funding to be frozen of all kinds, not just higher ed. All federal funding to be frozen while everything gets reviewed for- For compliance with the EOs. For compliance with the EOs was part of it, but also broader compliance with the Trump administration's priorities, which was one of the phrases in that document. And it was later walked back with a letter the next day saying that they were still going to enforce the EOs, but they're dropping that provision about just conformance with all of the Trump administration's priorities. So, you know, this isn't really, you know, this isn't really, you know, an HxA issue, but just so the listeners understand, we're talking about monies that were already allocated by Congress. You know, which the budgeting power is usually, you know, well, it is, not just usually. It is vested in the legislative branch and not in the executive. So, so that was just the first, you know, 24 hours.

John Tomasi: Can I just pause from that just very briefly? As you and I are aware, there was some dispute about what that phrase meant when the Trump administration said, according to their priorities. Some people read it as saying, in accordance with the executive orders that we've issued. Others took it as reading, being read more broadly as, in accordance with our political agenda, more widely construed. And that was considered a more chilling, objectionable, people interpret it that way, see it as a more chilling and objectionable phrase. Is that roughly right?

Joe Cohn: I think that's, I think that's so, but I also not sure that it's a huge distinction because there's no check on doing your own executive order, right? So, saying your own priorities and your priorities you decided to put in writing is not all that, is not all that, not all that different. It's different from, different from screening on things that you fought for, you got through Congress.

John Tomasi: Okay, good. Let me just share with the audience, too, to make explicit an assumption that you and I use so often that I think it's worth saying out loud for the audience. And that's that at HxA, we're evaluating these actions in terms of our fundamental concepts that we care about. And what we care about at HxA is improving the culture of open inquiry by advancing a free expression of ideas, viewpoint diversity, and constructive disagreement, roughly speaking. So, that's what we're primarily interested in, as you and I often discuss. So, we'll be discussing these actions and their effects on universities, not just for the health of universities generally, but specifically regarding the health of the open inquiry aspect of universities. And that distinction between the financial well-being of universities and the open inquiry aspect of universities is going to be a complicated, interesting line to demarcate, as we'll get to.

Joe Cohn: That's right, because often they go hand in hand, and they're really very difficult to tangle. But, you know, we are concerned about all of the threats to open inquiries wherever they come, whether it's in-house threats or whether they're external threats. And what's interesting about this environment is you have an administration dealing with some of the same internal threats that we perceive at HxA and want to combat. But we have to think through whether or not their solutions solve the problems, exacerbate them, or trade one set of problems for another. And I think that enough things have happened that there are things that fall into each of those buckets.

John Tomasi: Good. Good. So, let's continue. Are there more highlights you want to call our attention to?

Joe Cohn: Yeah, just real quickly, I'm going to get through, you know, some of the other stuff. So, you had at those early days, you had National Institute for Health, NIH, you know, pause all of its external communications. That was part of a memo that came down from HHS, the NIH falls under. And then they paused travel, which meant that there was a freeze on the ability to convene, to screen new grant applications, which had impacts on inquiry on campuses, on research that was longitudinal, for example. And you had a dear colleague letter. Dear colleague letters for the audience are letters that an agency sends to bodies that they regulate that aren't binding. And they're not giving, like, an actual regulation of this is the law, you must do this. But they say, this is how we interpret, you know, usually it's supposed to be about close calls, is how we interpret things just so that you all know. It's murky because there was a sordid history of the Obama administration and, again, the Biden administration, using dear colleague letters, more akin to regulations trying to force institutions' hands on, for example, Title IX. And the famous example on the university context was a dear colleague letter from the Obama administration, talking, giving directions about how they're going to interpret, affecting the way campus judicial proceedings work regarding sexual harassment.

John Tomasi: Right.

Joe Cohn: And I had spent a good chunk of my career at FIRE, you know, trying to unwind the problems that that document had created. So here you have a dear colleague letter on, you know, Valentine's Day that essentially said that warning institutions that they should get rid of all DEI programming of all kinds. So it talked about all DEI programming within 14 days, or they might see all of their federal funds, you know, frozen. So that's the foreshadowing. They issue a frequently asked questions document the next day later saying, we want to be clear when we say programming, we're not talking about curriculum stuff. And that was a necessary clarification because I think that programming, when you say all programming, curriculum is clearly, you know, what 99% of people would think it would include it. I think it was intended to be included, to be perfectly frank, but then all kinds of advocates were screaming from the rooftops that federal law says, you know, in statute that Congress passed, there are actually two statutes that say that the federal government has no role whatsoever in curriculum. So they walked it back appropriately.

John Tomasi: And so that statute, is it a statute?

Joe Cohn: Two. Yeah, there are two statutes.

John Tomasi: And they're meant to protect the idea that in a free society, the government doesn't dictate what's taught and the content. I think that's part of the rationale. These are strong limitations. We want to have wide academic freedom permitted at universities or respected at universities so that the experts can decide what should be taught. I think there is case law that backs that point for exactly that rationale. But I think, yeah, Sweezy v. New Hampshire.

Joe Cohn: But I think these two statutes are passed for a different reason. They're passed at the creation of the Department of Education as part of the grand bargain that if we're going to have a Department of Education, we're going to reserve the state's rights to be the ones that decide curriculum issues. And this is about K-12 and higher education at the same time, saying that the federal government has no role in dictating curriculum. So I think that it was the Republican Party's position that the federal government needs to be hands-off here. And I think that's the reason for these particular statutes. The case law goes into the rationale that you're describing, which applies to both states and the feds, which talks about the relationship of curriculum here.

John Tomasi: So I said in a free society, but a better formulation would have been in a federated society or a state-based society such as ours.

Joe Cohn: Well, what's interesting is I agree with the broader point you're making about a free society, but it isn't from those statutes that they're importing that. These statutes are about a narrower issue, which is states' rights.

John Tomasi: Let's go back to the greatest hits we've seen in the last couple of months from the Trump administration. What other things would you call our attention to?

Joe Cohn: So I think that this takes us to what I hope is going to be a bulk of our conversation today. Like the big enchiladas, as I see them in no particular order because they're all huge, would be first the enforcement actions that the administration is taking against institutions with respect to Title VI, the federal statute that prohibits institutions from discriminating on the base of race, ethnicity, national origin. And under that umbrella for around 21 years or so, it's been interpreted to also include anti-Semitic harassment when it's based on shared characteristics that might be associated with an ethnicity or a national origin there. So that's one, because under there you're seeing institutions, most of the Ivies, having massive, huge funding hits, which I know we're going to spend lots of time going deep into.

John Tomasi: That's going to be the big topic, right? That's going to be our main focus, trying to understand with your help better exactly what is the federal government doing with respect to these schools, especially the Ivy League. And we'll come back to that in a moment.

Joe Cohn: Right. So that's one of the big ones. And then the other big one, from my perspective, is the immigration enforcement that is also part of this effort to combat anti-Semitism as the administration perceives it. And there we've seen students, recent graduates, faculty, PhD students who have teaching responsibilities. Med school faculty. Med school faculty. Affiliated doctors, I believe, in one case. Arrested and removal proceedings. And it's coming in a context, which I'm going to analogize to some off-campus stuff for a moment. There's also broader enforcement actions against people who are illegal aliens, where people are being removed immediately and without hearings and being flown out. So there's out of the country. So there is concern about how it impacts open inquiry when people associate with the universities. And that's HxA's interest here, not the broader immigration questions. But when people affiliated with institutions are subject to this kind of enforcement, and I hope we'll be parsing out, what are proper basis for that enforcement, what are improper basis for that enforcement as well. And if we get some time, I don't know if we'll get a chance to cover it. There was also a congressional oversight action that was just initiated against Northwestern University Law School under the claim that its legal clinics are representing clients that are either activist, clients with a political agenda, or the clients themselves were anti-Semitic, and it was part of the hostile environment that the administration was claiming. So if we get some time, I'd like to spend at least one minute talking about that.

John Tomasi: So that's great. That's great table setting. So let's now go to the main course. So with the Title VI Enforcements, we've seen now spending freezes or pauses within the Ivy League. Columbia was the first, but Columbia, Harvard, Penn, Princeton, now Brown, Cornell, and Dartmouth are the two remaining ones. But five out of the seven Ivies at least have faced, or are under, or are soon to be under, let's say. Very significant pauses. Budget, vegetarian numbers, in our case of Harvard, at a billion dollars. The one at Brown is half a billion dollars. Massive pauses on funding, which are fundamentally disrupting those institutions. Our interest, of course, is primarily in open inquiry issues. Can you just tell us a bit about this action on the part of the government? Help us understand exactly what powers the president's claiming to have when he makes these actions. What's the relationship of the federal government and the executive power in particular to the budgets of universities?

Joe Cohn: Yeah, this is really interesting stuff and very consequential, as you were outlining. So all institutions that accept federal funds as a condition of accepting those funds are subject to the anti-discrimination laws. And there are a bunch of them. There is Title IX with respect to gender. You have the ADA with respect to disability. You have the Rehabilitation Act also with respect to disability. You have Title IV and Title VI with respect to discrimination on the basis of race and national origin and ethnicity. And I'm probably not thinking of a couple off the top of my head at this moment. But the obligation to abide by them comes with the possibility that you could lose your federal funds if you remain in violation of any of those statutes. And they empower the federal government to terminate their federal funds when an institution has been deliberately indifferent, for example, to whether or not they have an environment that is discriminatory on one of those bases or whether or not they themselves are discriminating. If there was smoking gun evidence that a school was purposely not admitting people of a particular ethnic background on discriminatory basis, that could be grounds to terminate.

John Tomasi: So in the context of the Civil Rights Act being passed, were these the kind of actions the government might be taking to police universities that might not be abiding by the Civil Rights Act?

Joe Cohn: That's right. That would be a paradigm case we can have in our minds of the government using this power appropriately. And the idea here is you needed teeth to make sure that institutions can be brought to heel. But also, do we want as a country to be funding institutions that were discriminating on people based on their ethnicity? And, you know, and, you know, I think that most of us would agree that we don't want to be funding that, that we want to end, you know, discrimination. But what is tricky here is you are dealing with campus environments that may or may not be anti-Semitic, may or may not have Islamophobia, may or may not have a lot of different elements in a time in which people are, you know, very heated and have very strong emotions about what is happening globally. And there's a lot of clashing on those topics. So schools have been struggling.

John Tomasi: So just to put names out, making space on campus to have people who want to contest, for example, Israelis' foreign policy or contest the actions of Hamas regarding holding of hostages, making space for those conversations is an important part of open inquiry and academic freedom. And yet those, those kinds of positions can edge into versions of a climate of discrimination. Is that how you would say that?

Joe Cohn: I mean, yeah. I mean, people have the free speech rights.

John Tomasi: Anti-Semitism becoming anti-Semitism, for example.

Joe Cohn: You know, people have the free speech rights to take whatever position they want on any of these issues. So the question, as we'll discuss further on, is whether or not someone is anti-Semitic or whether or not they hold views that are Islamophobic. The question is, did their conduct rise to a level or what they were doing crossed out of the realm of protected speech and into the realm of one of the unprotected categories? So I think of like true threats or incitement to commit imminent acts of violence or harassment.

John Tomasi: And is conduct a crucial word there?

Joe Cohn: It is because, you know, the case law recognizes that there are ways people can use their words that resemble conduct more than argument. And, you know, those were the categories that I just listed, you know, not in this particular context of campus, but say defamation might be or committing fraud, you know, or others where you might, you know, defraud someone through your words. But convince them to send you a massive check with the claim that there's a Nigerian prince on the other side holding on to your money. But, like, the main focus here is that schools have dual responsibilities. One, to uphold people's free speech rights. Now, that's, you know, completely the case at public institutions where there's been decades and decades of Supreme Court case law saying the First Amendment applies in full force on public institutions. But at private institutions, there's a great deal of case law that says that if they promise free speech rights or if they promise academic freedom, they can't get people to act in reliance on those commitments and then not follow through on those promises. And it's regulated under a contract law, but the courts, in evaluating whether the contract was honored or broken, analogized to the equivalent First Amendment rights. So, for the purpose of this conversation, I just want to talk about free speech rights, you know, more generally because it's such an important part of open inquiry.

John Tomasi: So, let me be sure I understand if that's the right formulation. So, if we think about these pauses now, the pauses on funding, which are just massively impacting on these universities, they're completely changing their budgets, their whole models, or they're stopping construction of major medical research facilities. Huge amounts of change is happening. Maybe there'll be other changes happening in terms of scrutinizing the allocation of their resources. I think that's happening at some schools already. How many administrators do they need? It's causing massive rethinking on the part of universities about their priorities and their spending patterns. But is when we describe that as a conflict between the interest of the universities in protecting academic freedom, meaning something like self-governance, deciding for themselves how they allocate their resources, and the other side, something like the obligation they have to create an environment that is free of discrimination. Is that the fundamental way to see? Is it academic freedom versus this need to protect an obligation to have an environment free of discrimination?

Joe Cohn: You keep saying free speech. I want to see if they can shift it to those grounds. They can come in tension with each other, of course. Imagine if you had a hypothetical case where an institution's provost and their university president and the head of their board of trustees are on an email thread, and they're head of admissions, and they single out a particular ethnic group. And one of them starts the conversation saying, I really hate that we have so many of these people enrolled in our school. What can we do about it? And the rest of them chime in about, but we can slowly make the environment less comfortable for them in the hopes that they'll stop applying, or the hopes that the ones who choose to transfer out. And they stick with that, and that memo comes out. I think we would want the federal government to put a stop to that, because you can't really have open inquiry for some and not for others.

John Tomasi: That's right. I want to emphasize that point for a moment, because at HxA, we think of the university as being something like a community of imperfect learners, people who see the world differently, but are committed to conversations and investigations together. So that's just filling out what you said.

Joe Cohn: Right, and the other side of that coin, though, is that the enforcement lever is the federal funds, which are often research dollars that might be entirely unrelated to where specifically the discrimination was taking place. So there's a question that people are now exploring about the appropriateness of having such a heavy hammer that has tremendous societal impacts when, say, pediatric cancer research is paused because of an alleged environment of anti-Semitic harassment or any other kind of harassment here. But that's why...

John Tomasi: And be sure I understand that. So that's a case where you're saying that the lever is directed at the research. When I said before, maybe universities facing these budget cuts can now think about perhaps a more rational allocation of the resources. At some prominent Ivy League schools, there are two administrators for every one student, which some people find wasteful, and I tend to think that, too, of our objective is truth. But you're saying the way the lever is constructed actually goes directly to things like research.

Joe Cohn: Yeah, I mean, the lever is... Any and all federal funding. And it's at the discretion of, you know, of the Department of Education to, you know, to decide how much of the federal funding they want to put at risk. Now, some of that federal funding is, you know, through Pell Grants and Stafford Loans and other sources. But much of it, the biggest part of it, is with respect to research grants.

John Tomasi: Now, why isn't that fungible? So in the example you gave of the pediatric cancer unit that's being directly funded and that the funding gets stopped for that. Is it the case that this is within the realm of fungibility? Because couldn't the university say, okay, you know, that third gymnasium we're going to build for the students, we're not going to build that gymnasium. Instead, we're going to fund the pediatric cancer research.

Joe Cohn: Yeah, I agree that money is fungible. But you have situations where the grants are for particular projects. The government is saying we're not going to pay the money that was to fund that project. Could the university come on in and step up if it has it and fund it instead? Probably at some of them, but that's not necessarily the case at all of them. I mean, we happen to be talking about the targeting of some of the richest institutions with the biggest endowments. But how long do those endowments last if every year they were subject to, you know, having to pick up these tabs? So I don't think it's crystal clear, but one of the things that the statute contemplates to try to avoid this pitfall is the view that you could have escalated enforcement before there's ever any of these consequences coming into play so that institutions have opportunities to cure and theoretically opportunities, procedural opportunities to challenge the claim that they are in fact in violation. And that hasn't really been happening here. Instead, you're seeing the withholding of money.

John Tomasi: Sorry, you said escalated enforcement. Did you mean anticipatory obedience?

Joe Cohn: No, I mean, the government would say to a school, let's call that school Columbia University, and they would say, Columbia, you know, you've allowed things to get really out of hand. We need you to clean up your act because we give you X amount of federal dollars, and we're not going to tolerate this forever and ever and ever. You need to, we need to negotiate a plan for what you're going to do because with what you have already been done and what you are continuing to do, you know, we think we have the right to terminate your funds. And then Columbia would come back and say, here's an action plan, and they would hash it out, and they might reach a settlement agreement. Now, I've seen settlement agreements in this context and also in the Title IX context where I disagreed with the legality of particular demands that the government was imposing on an institution. I think that's the case here, but that structure of the negotiation is supposed to prevent any of the money from ever being disrupted. It's not after the money is withheld, and then if you want to get it back, start negotiating with us because there's also supposed to be able to go to court to challenge the idea that they are, in fact, in violation.

John Tomasi: Okay, let me, let me, let me, let me just pause on that for a moment on the, on, I want to pause on the issue of pause to be sure I understand it myself and for our listeners too. So in these cases, some of them, I think, well, in these cases with universities where there's a pause on the federal funding, what's the next step? There'll be a, there'll be a proceeding where?

Joe Cohn: Well, they should be able to have a proceeding, but that's not what, but that's not what's happening. I mean, like they could, they could go into federal court and they could say, you know, we should, this should be stopped. But ordinarily it's supposed to be.

John Tomasi: So they could say, we want the, we want the pause lifted.

Joe Cohn: Right, but ordinarily.

John Tomasi: If the pause is upheld, that just means the government has some amount of time before it has to investigate the case and make a decision?

Joe Cohn: So.

John Tomasi: How does that work?

Joe Cohn: No, right now it's happening backwards. Like right now what's happening is not what this, not what the statutory scheme, you know, you know, contemplates.

John Tomasi: Explain.

Joe Cohn: Which is, which is ordinarily they're supposed to do these warning letters. They're supposed to negotiate out. And then afterwards the government would be initiating an action to withhold the money.

John Tomasi: and is that because we're, we're assuming a situation where that government interest is not extreme and immediate? is, is the, is the justification for the pause approach that the situation is so dire that needs to be done this way? Is that the, is that the theory?

Joe Cohn: I can't get into their heads to know why they're doing it. It could be because they view it so dire.

John Tomasi: Would there be a legal, is there a legal justification for that, for that theory?

Joe Cohn: No, I, I don't think there's really a justification for skipping the procedural steps. Because those procedural steps are supposed to be there so that you have verification that it really does warrant this really massive penalty. And, and, and, and to be clear, I think some of these institutions are teetering right on that line where they might not prevail if things went, if things went to challenge.

John Tomasi: But the reason why it goes on the issue of anti-Semitism, on the, on the issue of, of anti-Semitism right now, you know, I'm sorry to interrupt, but I just want to be sure I get it because I'm, I'm, I'm seeing the picture more fully now spending time with you. When they, institute the pauses and skipping over the procedures that you described, that's what some people describe as reckless behavior, reckless because it's not following those procedural constraints, which are intended to allow a more mediated process to occur between the government and the, and the universities, the object of the funding.

Joe Cohn: That's right. And, and, and the other aspect of why I think it does this, there are a few reasons why, why, when it's working properly, it goes through these procedures. One is because the federal government isn't always right, that, an institution is engaged in discrimination. and, and you set up due process to make sure there aren't tremendous consequences because they are the 900 pound gorilla. There's a lot of money on the line. And, and what you're seeing with schools really bending the knee so quickly is that there really isn't an incentive for schools to fight back. So that's one reason why at least the framework is supposed to give procedures, to, you know, to prevent error. The other reason why you have the procedures is to avoid the disruption to these other collateral things like research, you know, to, to put schools on notice that they have to cure in a way where they can cure. because I think we would agree that we wouldn't want the federal government to continue funding an institution that was engaged in really brazen, you know, discrimination against any, any group. and they can, federal government can send its money elsewhere to another school that isn't engaged in that discrimination, but these research projects are really crucial. They're ongoing and continuing. And when they're disrupted midstream, you know, for these reasons, that isn't great for society either. So we contemplate a process that designed to steer the ship correctly before any of the collateral damage is actually realized. And, but that's not what's happened, so far. And that's why so many people are really, up in arms about it, I believe.

John Tomasi: So it's the process by which the Trump administration is enforcing Title VI, the Title VI concerns.

Joe Cohn: I think the process is a huge part of it. I think there, I, I have some substantive objections to in ways that I think are, contradictory to open inquiry. you know, explain, so for, with Columbia, for example, the, government sent the institution a list of demands and some of the demands, you know, were positive. I think from the HxA perspective, I mean, they, you know, were, were wanting them to review viewpoint diversity on campus. They wanted them to commit to institutional neutrality. but there were other demands that I think drew directly impacted open inquiry and not for the better. so for example, they wanted departments to be put into receivership, which if we think back to the early days, earlier in the conversation, the federal government is not supposed to have any role in shaping the curriculum. So here they are, they're not going to do the curriculum shaping themselves, but they're saying, you better do what we want.

John Tomasi: And let me be sure I understand that exact point. That's a, that's a fantastic point about academic freedom and just an HxA's concerns. So let's imagine a course that you and I were discussing, before coming on the show, a case where at a university, and there are, I've heard many reports of this being the case on universities, including some of the universities that have been targeted for the freezes. Imagine a university where a course is being taught with the instructor nuts on the first day. This is a course about the Palestinian cause. We're not going to have debates about Zionism and anti-Zionism in this course. We're going to talk about ways to free Palestine as a single state solution. And they teach the course that way. That's within a realm of academic freedom. Is that what you would say? Or is this, are we now edging into anti-discrimination? If, if a, if a, if a Jewish student who's pro-Israel is a Zionist in that sense, it's part of their Jewish identity, let's say, wants to take that course, they need to just sit there and be quiet and not say anything about, about their views. What do you, how do you, how do you, how do you think about that kind of a case?

Joe Cohn: So I don't think, there's any, I'm sorry, and this lies behind the freezes on some of those, on those departments being put into receivership. The claim that these departments are in some sense, not engaged in the activity of searching for truth and knowledge, as HxA believes universities should be, all departments should be, but they're engaged in some kind of, politicization or propagandizing or political action.

John Tomasi: Activism.

Joe Cohn: Let's say activism, but without the reflective elements.

John Tomasi: How do you, how do you adjudicate all that?

Joe Cohn: Yeah.

John Tomasi: How do you think through all that?

Joe Cohn: So I, I would think of through on a case by case, you know, basis. For one, I think it's okay to have courses that are taught from a particular perspective, but that's different from not allowing students in the class to articulate dissenting, you know, views and to actually grapple with them. There's never a license to make up facts or to omit, you know, facts selectively, to, to push your particular cause. I mean, I think that would be bad pedagogy. I think that could, you know, properly result in discipline from an institution. But if there was a course that was on the Middle East from the Palestinian perspective, I think that that's okay. I think there's also, it'd be okay to have a course on the Middle East from the Israeli perspective. I think provided the conditions that you met, which are quite thick.

John Tomasi: Right, right, right. So that is people could take the class on Israel, sorry, the Middle East from an Israeli perspective, and they can walk in the class and freely feel, feel free to raise intelligent questions about Palestinian self-determination. And their readings would not be selected in a way that they were all propaganda, low-level pieces. They would be academically scholarly pieces, including hopefully viewpoints contrary to the main view of the course.

Joe Cohn: I think that's right. But I also don't think it's the federal government's role to step on it and say, okay, you're getting it wrong. So even if you had a course that was to engage in the particular activism, because of the federal government's need to keep its hands off of curriculum, I don't know it's the federal government's place to weigh in on how an individual course is taught.

John Tomasi: Excellent. This is exactly where I want to, this is where I wanted to bring this, this is where I want this conversation to come, right, to this very point. So I think it's the case. We have good reason to believe it's the case. There have been many courses and also some departments at some of the universities that have been targeted where teaching has been conducted in a way that falls dramatically short of the standards that you were just describing and that I affirm as well. There have been courses taught where some students were not free to express their views or contrary to a dominant view of the course. Courses where their readings were biased, where they're not high quality. There were courses that were defective with a perspective of HxA's values, maybe in some whole departments, arguably. But now the question is, what should be done about that? If the universities have been allowing that and they're not changing it, one reflexive solution is to say, well, someone should do something. And now we have an elected leader who's willing to do something. Shouldn't we be cheering that? Would you say that or would you say, how do you analyze that? Where does academic freedom come in? Because we're now saying that if you allow the professors themselves to decide what they're going to teach and how they're going to teach it, some of them don't abide by the HxA way and the way they teach at all. They reject those values.

Joe Cohn: So I think that when we're talking about the federal government, the hands-off of the curriculum is kind of an absolute. When we're talking about other state governments getting involved, I get worried any time the state government can go into a class and decide that they don't want certain ideas being taught. I don't think they're really great experts on the pedagogy. I do think that that's better left to the institutions to decide. But I do think that if they wanted, as, say, state legislators, to look at the mix, of course, offerings and the ideas and they said, oh, geez, you have 24 sections on the Middle East from the Palestinian perspective courses. You don't even have a single one from the other perspective and wanted to insist on the creation of additional curriculum options. That's additive and not subtractive. It would create a mature environment of inquiry.

John Tomasi: Right.

Joe Cohn: So I'm not one who thinks that there's no role for governments to ever play in looking at the mix. But I get very worried any time any government actor has the ability to say, don't teach that. Or you can only teach it if you teach it from their perspective on what's the right balance or what the right mix is. Because they might be right in an individual case. Like if you had 100 hypotheticals where legislators intervened in that way, I'm certain that there are one or two of them where you'd say, yeah, they're right. I agree with them that the mix is wrong and that it would be better if it was X, Y, or Z. But I'm also certain that you would have other examples where they just don't know what the heck they're talking about. It's just political interference. And, you know, the legal tool either gives them the ability to do that or it doesn't give them the ability to do that. So that's why I'm rarely uncomfortable with the additive approach because that gives them some ability to weigh in there at the state level. But I'm always uncomfortable with the you're not getting the right mix. I don't think the government should ever be able to say you cannot discuss and debate this idea in this or any other college course. You're talking about adults who have all chosen to be there. You're not talking about an audience, a captive audience.

John Tomasi: What we're looking at here. I would add they're young adults and they're not captive, but they are owed a pretty rich menu. I want to ask you, I think we agree on the main line. But I want to, I'm interested in time and also just curiosity. I want to be sure we talk about some of the deportation issues. And I would love to hear your take on some of the deportations that have happened at universities. One thing that I wonder about is to what degree are these deportation targets evidence of, for example, a hostile environment. That is, professors who have certain views that are connected to Hezbollah, for example, the professor from Brown, who I think a med school professor or someone associated with the medical school, with the hospital system at Brown, who travel to see the Hezbollah leader's funeral and so on, was found to have pictures of this person on their phone, had a kind of a religious connection to that person. But there's also going to be a political connection to a designated terrorist group. Are these things, how do you think of the deportation cases? Are they part of the case for the Title VI actions? Are they a separate set of issues? What's your read?

Joe Cohn: Well, the government is looking at this from a couple different perspectives. The first perspective is that it is saying that it has the authority to remove anyone who they think poses a national security threat. So that rationale isn't tied to Title VI at all. That's we think you're posing a national security threat.

John Tomasi: So if I'm a professor and I'm a member of Al-Qaeda and I swear allegiance to their cause of violence, whatever it might be, and that's a designated terrorist group, for example.

Joe Cohn: Right.

John Tomasi: My academic freedom wouldn't give me any protection.

Joe Cohn: Special, special protection. That you happen to be a professor is no different than if you had been a plumber or an electrician.

John Tomasi: Or a pilot.

Joe Cohn: Or a pilot, if you're actively engaged in terrorism or providing material support for terrorism, then that is something totally different. But ordinarily, you still have to have some amount of evidence before you remove someone that they are, in fact, engaged in those activities.

John Tomasi: And being a member of such a group wouldn't be considered enough for deportation?

Joe Cohn: I think being a member of a terrorist organization.

John Tomasi: Designated terrorist organization.

Joe Cohn: Designated terrorist organization is enough. But agreeing with a terrorist organization and saying, you know what? You know, I really, you know, think that such and such group's cause is a just one. A one-state solution is a just cause, for example. You know, writing an op-ed that makes that case is not the kind of support for terrorism that any of the statutes, you know, contemplate. And the Supreme Court, when it talks about material support, has to elevate it beyond just pure speech to get into actual, you know, conduct that actually aids the terrorist activities. So what you have here is a mixture of two different rationales. There's that national security rationale that we just talked about. But then there's this rationale that the government is claiming that some of these individuals, through their involvement at the institutions, have created a hostile environment in violation of Title VI. So what I would say to all of this, there are a lot of different layers of this that I hope that we touch on. We can't ignore the due process aspects of it, you know, as well, which I hope to get to. But what I want to stick on for the moment first is just the claim that merely expressing agreement, whether it's at a protest or through an op-ed, itself is enough to have created a hostile environment. And what I would say is you can't have open inquiry if the idea is there are some views that are so offensive that students should be shielded from. And that's straight out of the Chicago Statement Principles on Free Speech, that it's not the role of universities to shield people from ideas. But you do have people who engage in behaviors that are clearly not protected. You have situations like the occupations of buildings, vandalisms. You have physical confrontations where people have been, you know, assaulted. You know, there were protesters who taped a sign on the window of University of Pennsylvania President Dr. Jameson's, you know, home early in the morning saying that we're watching you. All acts of, like, intended, you know, intimidation. Certainly the people who are engaged in those behaviors could be subject to discipline and could possibly even be removed.

John Tomasi: And the way I think about it— Sorry, you mean if they're non-residents, they could be deported.

Joe Cohn: Right, right, right. Or expelled if they're citizens.

John Tomasi: Expelled from universities.

Joe Cohn: Right. Expelled from the university, yes.

John Tomasi: Sorry, are you talking about university actions now or government actions?

Joe Cohn: Yeah, I was mixing the two, and I didn't mean to be imprecise. When I talk about removal, I'm talking about the government action of removing someone. When I talk about expulsion, I'm talking about the institution. And the way I think it through is if the person is accused of doing something that's criminal behavior, that should be initiated not by the institution but by the government. And the government should be saying, should bring charges, and if they've, you know, been found guilty of those charges, that could put their visas in jeopardy. And if they lose their visas, the school should not continue having them there. If, on the other hand, it's an infraction of a school rule, a, you know, a protest where there was a heckler's veto. Now, first of all, that should be actionable. That's punishable. It's not protected speech. It's important that schools enforce those rules, you know, evenly. But, you know, I differentiate personally between someone who gets involved in a protest that, you know, that gets out of hand and actually physically assaulting people in a protest. I don't want them treated with the identical penalty. I don't want an 18-year-old to not have an opportunity to learn from any mistakes that they make. But if a student were to do things like occupying a library or physically striking another, you know, person at a protest or things like that, and the school were to expel them, then that would subject them to losing their visa because their visa is conditioned on them being enrolled in the school. And I would lose no sleep with the government under those circumstances, provided they went through the ordinary procedures that give people notice and opportunity to challenge them and not grabbed on the street, arrested, put on planes, and put in jail cells somewhere with the government trying to remove them as quickly as they can before they can get lawyers to fill out paperwork.

John Tomasi: Let me ask you that same case now on the other side of it. What about a state of affairs where there are professors and students, let's say, on the campus who are holding these beliefs, engaged in these activities, and the campus does not step in to expel them. The campus does not remove them from the community. It's just, they don't do that. Is that evidence that there's an environment that's hostile?

Joe Cohn: I think there could be evidence of a hostile environment. So there's a set of legal questions about when deportation is appropriate. Then there's a set of questions about if a university administration fails to protect the community of learners, that is, in the sense of creating, allowing a hostile environment to emerge and to continue. That would be the case if the government comes in through Title VI. Well, so Title VI can only be violated by the institutions. Title VI says institutions may not have an environment. So obviously— So if they allow people who create that environment. So if they're being deliberately indifferent by turning a blind eye to the occupation of buildings, to the harassment of Jewish students every time they try to enter Hillel, you know, we can think of a number of different ways that they could be deliberately indifferent, then the federal government's remedy against the institution is to hold them accountable with all the financial levers that we were talking about. Immigration enforcement is not one of the enforcement mechanisms under Title VI.

John Tomasi: Okay, good. But the national security rationale might be.

Joe Cohn: What they're saying is, they're saying, we're going to get rid of anyone who supports, you know, Hamas. They're using the word support, which is so vague and broad. You know, they're not talking about material support. They're just saying support, which could be, I agree, you know. And at least with the student from, you know, who was arrested from Tufts, the evidence out there is, at the moment, is just an op-ed that she co-wrote, criticizing the university for not divesting.

John Tomasi: Now— Not divesting from Israel.

Joe Cohn: Not divesting from Israel.

John Tomasi: So this person was advocating a BDS position regarding Tufts.

Joe Cohn: Right, right. In an op-ed co-written by other student leaders. And that's the only evidence that's been shown publicly so far. So I don't want to rule out the possibility that any one of these individuals, on a case-by-case basis, might not have engaged in behavior or may have engaged in behavior that would trigger additional action. But it certainly cannot be on the basis of just expressing, you know, general opinions on these topics and still have an environment of open and agree. And that's ultimately why we at HxA are so concerned about this is because we don't want anyone who's here on a student visa or teaching on a visa to have to worry about what arguments may I make.

John Tomasi: Right.

Joe Cohn: You know, we do want them to worry about are we going to not actually be disruptive?

John Tomasi: Right.

Joe Cohn: Which is why, you know, you wrote this article before I was at HxA, but it's one of the things that impressed me, you know, about the organization was its understanding of the fact that people do have the right to engage in all kinds of protests, even for ideas that we each might find offensive.

John Tomasi: That's right.

Joe Cohn: And engage in free speech because that is an essential part of open inquiry. But there are lines and the disruptions of the actual institutions. And, you know, and I understand why the federal government is looking at Columbia after yet another round of buildings being occupied, you know, over a year, over a year in. So, so I think the key here from my perspective is I get very worried about the environment of open inquiry on a campus when everyone has to watch what they have to say on a controversial hot button.

John Tomasi: May I sharpen that just to make your point a little more vividly, perhaps one reason why we have international students is to widen the pool of talented people who can come to the universities and make contributions. Another reason why we like international, having international students is because we hope that people with different, from different cultures and different places will come and bring the views of their culture in place and add it to the conversations on the campus. So we hope that people will come from different countries who haven't been represented at U.S. universities and in good faith, using the norms of discourse and constructive disagreement, present their views to their fellow students to enrich the conversation. And if those people, those people are instead chilled out so they can't express their views, then that effect is just gone. And it's a big loss for open inquiry. That's your view. It's my view too.

Joe Cohn: Yeah, I think that's so. And I also think that, you know, we have not been doing a good job as a society of teaching our students how to engage in constructive disagreement, which is one of our major pillars. And that's true of our international students and our domestic students as well.

John Tomasi: And I agree. I agree. And that's one of the main failings, I think, of institutions at the moment is that they are fostering a binary us versus them, oppressor versus oppressed attitude.

Joe Cohn: And part of, I think, what is not getting discussed enough about, you know, about these conflicts on our college campuses and about what's being taught in individual classes and whether classes are biased, because I suspect that the percentage of students that are enrolled in those classes is just a tiny fraction of the overall enrollment in institutions. But they are all subject to an environment where they have student life and other campus administrators who are pitching a particular perspective of social justice that is us versus them and cutting off dialogue instead of enhancing dialogue. It's a very simplistic paradigm. It doesn't lend to sophistication in the asking of questions. It closes questions down. And the truth of the matter is that there is bigotry out there and there is anti-Semitism out there and there is Islamophobia out there. But you can't defeat any of those things with censorship or with raw power. You can only change people's minds through persuasion. And I worry about the way the backlash that will happen to this when an entire generation of young people view the federal government coming in with traumatically punitive things and seeing friends and colleagues arrested and removed. And without the precision of knowing that they were the individuals who actually engaged in the behaviors that crossed the particular lines, I'm not going to lose sleep when it turns out that someone on a visa was occupying the library, refusing to leave, or hit a janitor if that ends up being the case.

John Tomasi: I don't know who hit it. There are reports that janitors were hit. I don't know if they were from people. At Columbia, the claimants.

Joe Cohn: Yeah, I don't know if it was an international student or domestic one or someone unrelated to the university. But I wouldn't lose sleep if someone either was expelled, removed, or both, provided that they did that and that we know that they did that because we went through the fair procedures first to determine whether or not that was the case. But I do very dramatically worry, even if you've got the correct person who did those things, if you skipped the procedural protections because that chills everyone else's expressive rights too because they can't count on the government getting it right the next time with them. So that's the broader concern here is not whether or not there's enforcement to be taken, but the manner in which it's taking place just can't be squared with an environment of open inquiry. And I'll just add one other thing that worries me. One thing about having international students, you know, an HxA is an international organization that, you know, that we, you know, of faculty members in other countries as well. And we care about these values of open inquiry elsewhere. I want American institutions to show the world how that's done. I want them to lead by saying that we're places of institutions where, you know, we value open inquiry. We value viewpoint diversity. We value constructive disagreement. And we, when someone comes here, they get a taste of how it should be done elsewhere. When we're exporting the kind of enforcement that's on viewpoint that I'm seeing so far, we're yielding that leadership and teaching scholars and students around the world that in the land of the free, you know, that's what this means. And I know that, you know, and I'm only interested in it from the HxA perspective of how that impacts open inquiry elsewhere and how that teaches university leaders and governments to treat their scholars across the world. And I don't think we're setting the right lessons.

John Tomasi: Joe Cohn, it's been wonderful having you on Heterodox Out Loud. Thank you so much.

Joe Cohn: Thank you, John. Really a pleasure.

S2 Episode 33: Trump vs. Academia: Inside the Battle Over Campus Speech

Where should the line be drawn between the government's role in stopping discrimination and a university's right to run itself?

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