The nation’s leading universities are locked in an unprecedented battle with a president and an administration that have chosen to withhold billions of dollars in vital federal research funding in order to take control of institutions for which freedom of thought and expression are among their most essential values.
For many, including me, this has eerie echoes of the MAGA-admired campaign by Hungarian President Viktor Orbán to rid his country of the Central European University. The school had been founded specifically to help revitalize civil society and its values, including academic freedom, in the region’s transition from dictatorship to democracy after decades of Nazi and then Communist control. Silencing and capturing universities and the free press—both of them crucial sources of knowledge essential to democratic self-governance and more—have long been at the top of the authoritarian to-do list.
But the roots of American higher education, and the essential role of our colleges and universities in the nation’s rise to global leadership, run deep. Indeed, in the case of Harvard University and several peer institutions—such as the one I used to lead, Columbia University—those roots predate the founding of our republic. These institutions have contributed enormously to the country’s development for centuries.
It is especially ironic that, just as we began the countdown to the 250th anniversary of the Declaration of Independence, with commemorations at Lexington and Concord, this contemporary battle over the future of universities took a dangerous new turn in nearby Cambridge, Massachusetts, where the Trump administration sent a shocking list of demands for ideological and political control over core matters of Harvard’s academic governance and freedom.
That earlier battle to establish the United States as a free, self-governing republic was itself a product of the 18th-century Enlightenment, in which the search for truth according to norms of reason, objectivity, and scientific experiment was asserted as a primary end of life and society. Many have noted the Enlightenment’s influence on our Founders, represented most significantly in the First Amendment, with its deceptively simple words: “Congress shall make no law … abridging the freedom of speech, or of the press.”
This was a revolutionary moment in human history. It upended the political universe, declaring that sovereignty lies in the people, not in the divine right of kings. It was equally profound in declaring that a good life and a good society require an ongoing search for understanding and knowledge—not a mentality of obedience or submission, but one of active engagement with the myriad ideas that emerge from a system of extreme openness.
The connection between a good society and the quest for understanding became the principal theme when the Supreme Court finally got around to interpreting the First Amendment, more than a century after its ratification. Public protests against American involvement in the First World War, including against military conscription and anti-Bolshevik intervention in Russia, had led to federal enactment of the Espionage Act of 1917, amended by the Sedition Act of 1918. In Abrams v. United States (1919), pro-Bolshevik activists were convicted under these laws for distributing pamphlets urging a general strike against U.S. munitions factories. In another case, the Socialist Party presidential candidate Eugene V. Debs was convicted and jailed for giving an anti-war speech praising draft resisters (while carefully avoiding encouraging others to join them).
In what would turn out to be the seminal dissenting opinion in Abrams—one of the most compelling and commanding statements ever made about the meaning of freedom of speech—Justice Oliver Wendell Holmes Jr. began by describing how difficult it is, given our natural impulses, to align ourselves with our higher interests in seeking truth.
Of the impulse to censorship, he wrote: “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises.”
From this central observation about the “logic” of intolerance, Holmes then continued with a stirring expression of what a good life is and of how the Constitution reflects that understanding. He explained that when people “have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” It is worth emphasizing that in the First Amendment, Holmes found not just a simple limit on government power, but also a way to create a good life—in other words, he offered us a path toward the meaning of life subsumed within a constitutional check on government power.
Finally, as if to demonstrate a mind always prepared to see the contingent nature of beliefs, Holmes modestly asserted: “That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” From this cogent statement has come our rich, intricate, and far-reaching First Amendment jurisprudence.
Holmes’s foundational opinion about the meaning of the First Amendment has been challenged and amended in the decades since, most notably by scholars such as Alexander Meiklejohn, who wanted to substitute the idea that free speech is related only to the process of self-governance in a democracy, and not to the broader conception of a search for truth. But politics, after all, is only part of life. So while other theories of the First Amendment have also sprouted up over the past century (including my own, rooted in the idea of “tolerance”), none has ever supplanted that of the search for truth, which remains the lodestar for the First Amendment to this day.
If the pursuit of knowledge and truth is embedded in our founding document and, in particular, the First Amendment to the Constitution, then it is the broad network of American colleges and universities that represent the organized means by which we achieve this fundamental human goal. Universities, and especially our research universities, are charged with the mission of discovering, preserving, and passing on knowledge. They pursue this task with a unique set of qualities, securing a lifelong commitment from some of the best and brightest of each generation. These individuals work in a physically discrete space—a campus—under extraordinary intellectual norms that demand a depth of expertise in their field, a focused determination to expand that knowledge, and a host of special character traits, including an exceptional (some would say abnormal) openness to ideas, full attribution to others when appropriate, comprehensive explanations of one’s ideas, and a continual readiness to reexamine whatever conclusions have been reached. I have called this the “scholarly temperament,” noting its intense intellectual discipline, and how it is the absolute condition of membership in the academic community. It is also a matter of entrenched culture, reinforced by the specific and intimate spatial and institutional character of the typical university. Colleges and universities are created in unique ways in order to maximize the fundamental human value of the need to know. You sense this immediately when you walk onto a campus.
And, as such, the Supreme Court has over time acknowledged that these qualities entitle universities to a special standing within First Amendment jurisprudence. In a well-known opinion (Sweezy v. New Hampshire, 1957), Justices Felix Frankfurter and John Marshall Harlan II concurred in the decision to protect a professor whose lectures prompted a sweeping investigation by the attorney general of New Hampshire into possible links to communism. The Court recognized academic freedom as a core constitutional interest and offered this caution, clearly mindful of McCarthyism’s damaging impact on academic life during those years: “Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, study and to evaluate.”
Going further, Justice Frankfurter warned of the “grave harm resulting from governmental intrusion into the intellectual life of a university.” Citing a statement by senior scholars at two “open” universities in South Africa, Frankfurter and Harlan proclaimed: “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail ‘the four essential freedoms’ of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
The idea that universities have special standing is not a fully developed doctrine. The most apt analogy is to how we have come to think about the role of the press within First Amendment doctrine. There has been a long-standing debate in First Amendment jurisprudence over whether the press should be regarded as playing a distinct systemic role, which begins with a notable argument made by Justice Potter Stewart in the 1970s about how we should understand the First Amendment. Certain major cases—such as The New York Times v. Sullivan (1964), a libel case, and The New York Times v. United States (1971), the Pentagon Papers case—arguably were decided with the special concerns for the press and its role in public debate very much in mind. However, several major Court decisions, notably Branzburg v. Hayes (1972), rejected a specific claim by the press for a special privilege against having to testify in a grand-jury proceeding about sources. Several other decisions denied a special right of access for the press to government facilities (prisons, in those cases).
This is a very complicated debate. Yet the fact that this is a serious issue with respect to the press supports the proposition that we should be thinking similarly about universities. It is true that the “press” is explicitly mentioned in the First Amendment, and “universities” are not, but there are many reasons consistent with First Amendment jurisprudence to justify affording universities a comparable special role. Above all, universities have a distinctive mission consistent with the principal First Amendment rationale: the search for truth.
So, here is my thesis: American universities are rooted in the bedrock of human nature and the foundations of our constitutional democracy. They are every bit as vital to our society as the political branches of government or quasi-official institutions such as the press (often even referred to as the “fourth branch” of government). Universities, as institutions, are the embodiment of the basic rationale of the First Amendment, which affirms our nation’s commitment to a never-ending search for truth.
In some ways, universities are a version of the press: They make a deep inquiry into public issues and are always on call to serve as a check on the government. But if their deadlines are far longer, the scope of their work and remit in pursuing truth reach to everywhere that knowledge is or may yet be. Their role in society touches the full panoply of human discovery, never limited by what may be newsworthy at a given moment. And, as many have noted in today’s debate over federal funding, the results of academic research and discovery have benefited society in more obviously utilitarian ways, including curing disease, cracking the atom, and creating the technologies that have powered our economic dynamism and enhanced our quality of life.
Universities and university leaders need to become more deliberate about undergirding and explaining this special role. The outlines are there—they trace a major theory—but there is no doubt that the interior must be filled. What we need is a decision or two by the Supreme Court affirming this direction. This is what happened with the idea of the press having a unique role to play within the American political system. The New York Times v. Sullivan and The New York Times v. United States breathed life into the notion that the press deserves a special solicitude under the Constitution. The press seized the moment and thereafter portrayed itself as having this identity.
I do not know the right moment or issue for universities to make their case—but it may be right now. The Trump administration’s threats to withdraw substantial funds from Harvard and exert governance across the university provide myriad strong claims of substantial constitutional violations. In times of high crisis, one can often find the opportunities to delineate more sharply our doctrines and values. By filing its own lawsuit against the administration, Harvard has seized that opportunity.
Here is another concrete example to show the potential for what I am talking about. When I was president of Columbia, there was an inquiry as to whether we might take and hold the Snowden papers—millions of official documents relating to national security. Under the Pentagon Papers decision, there was, I believed, a very strong argument that the press—a newspaper, for instance—would be protected if it held on to those documents and then was subjected to criminal action under the Espionage Act of 1917. In my view, the same philosophy should extend to a university keeping possession of that same material for scholarly purposes. For a variety of reasons, we chose not to proceed with the acquisition—but that could have been an interesting case in which to establish a favorable precedent. Others may appear—for instance, university resistance to turning over tenure files to a congressional committee investigating protests and alleged discrimination. In any event, this process may well take years, or even decades, as developed jurisprudence typically does, but the key point is that we need to be thinking about and planning for this.
Universities are most certainly under assault, and the risks appear likely to grow. I am not naive. There is no question that when facing a determined and hostile government, it is difficult to win in the end, whatever the courts ultimately rule. Even with solid protections, constitutional or otherwise, the tactics of initiating investigations, filing lawsuits, and freezing or revoking funding can make life unbearable and unsustainable. In these circumstances, maintaining your sense of self and your integrity is crucial. Strategies of appeasement never work out. And at some point, when sanity returns, you will be seen as having sacrificed your principles when under pressure, and that will undermine your case forever.
Two more points are worth noting. The first is that receiving federal funding does not necessarily give the government the legitimate power to take it away or use it as a lever to strip you of otherwise valid constitutional rights. The Supreme Court once held, for example, that the federal government could not create the system of public broadcasting and at the same time forbid those broadcasters from engaging in “editorializing” on controversial public issues. This area of so-called unconstitutional conditions is painfully complex, but there should be no license under the First Amendment for the government to use its funding as leverage to try to bring universities to heel. The second point, looking ahead, is that in this time of rising authoritarianism—where the playbook, again, is always to go first after the press and then the universities—those of us who have led these institutions should acknowledge the mistake of not having taken financial steps to better insulate them from this kind of vulnerability by setting aside financial reserves to withstand the storm. The fears of those who worried decades ago about the political risk of federal funding have clearly been borne out under this administration.
Finally, we must come to some working resolution over how to think about “political” perspectives within the academic mission. (I am not here speaking of faculty participating as citizens in a public forum, where traditionally we have protected their rights to the same extent as all other citizens.) Although an argument might be made that a professor should never take a political position, I think that is both unrealistic and undesirable. Just as with the professional press, a natural and, indeed, expected role of a university is to be a societal critic, to bring flaws to our attention and to urge us to be better than we have been.
I remember a very famous journalist, a paragon of the profession, saying of himself that he would “get up every morning asking the question, ‘I wonder what the bastards are up to today.’” Universities, like the press but even more so, explore every facet of existence, including questions of justice, fairness, and the character of our political and social life. It is entirely appropriate for points of view to emerge from this work, on subjects big and small, so it is wrong to say the work of universities should never become involved in controversial issues of public importance—and we should defend that. Universities at their best will at times serve, like the press, as the public’s check on government, but they will also serve as a check on the public itself. It takes a mature and wise society to accept a robust system of criticism (like the best kings and queens and their jesters). But that is the ambition.
To be sure, that is not always a welcome role. There is a long tradition of populist disdain for the unconventional thought and progressive values of many university campuses and college towns. Today’s political right has, as in earlier eras of our history, skillfully elevated and made an easy target of the most extreme picture of the academic world. And the academic world has undoubtedly provided fodder for that image, especially in not responding more forcefully to the anti-Semitism that too often manifested on campus after October 7, well beyond constitutionally protected political debate and public protest of Israel’s government.
Above all, we should understand that government efforts to control the core academic decision making of universities, as the Trump administration has demanded be done with Harvard, are in profound conflict with America’s traditions. Nothing could be in sharper contrast with the Enlightenment values of our Founders. Nothing could be more threatening to our nation’s continued global leadership in research and education, which attracts the best minds from here and from around the world to discover and disseminate knowledge. That’s one essential part of what makes America great that we cannot afford to squander.