Harvard v. Trump: Free Speech and Government Grants

>> Eugene Volokh: Hello and welcome to Free Speech Unmuted, the Hoover Institutions podcast on Free Speech. My co-host, Jane Bambauer, is a professor of the law and of communications at University of Florida. I used to be a professor back at UCLA Law School for 30 years and now I'm a senior fellow at Hoover.

Today we're going to be talking about Harvard and Harvard versus the Trump administration. It's a big story. There are actually several stories all tied in there, but it's in the news and we're always happy to talk about things in the news and sometimes things that are not in the news.

So Jane, tell us a little bit about what is it most in the news right now?
>> Jane Bambauer: Yeah, so in order to understand the main legal questions related to the dreaded unconstitutional conditions doctrine that I think we'll get to eventually, I let's first understand what ha. What led to Harvard filing a lawsuit just Monday of this week.

So, so the Trump administration was already putting some pressure on universities, you know, especially some of the top universities like Harvard and Columbia, where there had been significant protests following the October 7th massacre in Israel. And this sort of came to a head when the Trump administration sent a letter to Harvard's new president, alan Garber on April 11 explaining what they expected Harvard to do in order to receive the grants that had already been given to Harvard for this, for this year, in coming years, or that we're kind of on the slate of proposals that are expected to be funded in the future.

So we're talking about, I think if you add them all up, it's over $3 billion in federal grants, present and future grants that are on the line for every possible range of research initiative. And the letter explains, first of all, that Harvard receiving this federal funding depends on Harvard upholding federal civil rights laws.

And it only makes sense to fund Harvard if Harvard fosters the kind of environment that produces intellectual creativity and scholarly rigor, both of which are antithetical to ideological capture. Right up at the start of the letter, I think the government's making clear that what's motivating them are two different things.

One is the government's perception at least, that Harvard was discriminatory in the way that they enforced their own sort of campus harassment, anti harassment rules, or another way of putting it, is that they did not, that they did not comply with federal civil rights laws because they allowed Israeli and Jewish students to receive, you know, to be sort of targets on campus in a manner that goes beyond just speech and protest.

So that's a theory that Harvard actually violated the law and therefore its funding is being held up. But the other theory is that Harvard as an entire institution and educational experiment is not living up to the expectation that it is fostering enlightened pursuit of truth rather than some kind of promoting some sort of specific ideology.

And so the government said as a result of these two sort of different problems, it expects Harvard to do a whole bunch of things. And so, there's a long bullet point list, readers. It's a short letter, it's only five pages, but I'm not going to go through every bullet point.

But I wanted to highlight a couple of the ones that I think are going to be most important for us to understand the case. One is that the government wants Harvard to do a full audit of its entire student body, faculty, staff and leadership for viewpoint diversity. And then here's where the language is just very confusing.

I feel like there's a part of a sentence that got lobbed off or something. But it said, okay, so you have to do an audit such that each department, field or teaching unit must be individually viewpoint diverse. So that implies that it's not just an audit of looking at viewpoint, you know, what the current status of viewpoint, whatever that means is, but that also the expectation is that they will all be diverse.

It also mandates the discontinuation of DEI programs and initiatives and positions under whatever name they might be using. And it requires a bunch of student discipline reform, some of which are clearly oriented toward trying to prevent what the government sees as failures of living up to civil rights laws before.

But one of them that I wanted to highlight was that it requires any student group or club that endorses or promotes criminal activity, illegal violence or illegal harassment to not receive, you know, funding and support through Harvard's Clubs program. So then there are a bunch of other ones, but I think those three are probably on the.

Well, we might wind up discussing others, but let's start there. And so as a result of this and some of the other requirements, Harvard decided this is too much micromanaging. It's also inappropriate, especially given I can kind of understand this particular president. I think he understood that Harvard did need.

It was time for some reflection and reform at the university. Anyway, I think some changes had been made since the tenure of the last president Gay, I'm blanking on her first name. Will you remind me, Eugene?
>> Eugene Volokh: Claudine Gay, I believe.
>> Jane Bambauer: Claudine Gay, right. And so, you know, so I think, I think the, at least the way that they present the case is that this was an affront and an attempt to completely sort of take over the academic independence of Harvard University.

So does that give us enough background to start talking about the law, Eugene?
>> Eugene Volokh: Well, I think so.
>> Jane Bambauer: Okay.
>> Eugene Volokh: All of these cases are fractal. You can talk about at one level and then you can, I don't know, take 10 minutes and then you can take any one of those items, spend 10 minutes, 10 hours, 10 days.

>> Jane Bambauer: We could, yes, this is rich.
>> Eugene Volokh: At some point we've got to cut it off and I think that's a great summary. So let's just step back a little bit and think about big picture First Amendment principles here and the way we've allotted it. You were summarizing letter.

I'm going to summarize the principles. I think these are ones we probably both agree on, they're not controversial matters. So first, of course, nobody has an entitlement to government grants, generally speaking. If the government wants to say we're just going to get out of the business of providing grants for research or get out of the business of providing assistance to students or whatever else, perfectly free to do that.

At the same time, the government generally can't leverage its grant making power into the power to restrict the speech, especially based on viewpoint of grant recipients and. One way of thinking about it is the federal government sucks up 23%. As best I could tell, maybe the number's off 5% or 2 of the gross domestic product.

The ad state and local governments are probably about 30% and then redistributes it. And that doesn't even include various kinds of indirect subsidies such as tax exemptions, which are also under discussion here. We're gonna get to that later in the show, but we're talking about tremendous part of economy.

And if the government could just say, look, we're going to suck all of that up and then we're going to hand it out, but only on condition that you don't say things that we think are anti government or anti war or racist or anti semitic or anti environmentalist or pro environmentalist or whatever else, the government would have tremendous power to control public debate.

So as a general matter, the court has said two things which are in some tension, but I think both of them have to be true. Certainly they are true as a matter of doctrine. One is that if the government takes a grant and says, look, the purpose of the grant is to promote a certain kind of idea, then it can say, look, that grant can only be used for that.

And if we find you're using it for something else, well, then we're not going to, we're not going to give it to you anymore or we're going to cut it off. So one example is if the government were to say, look, here's money to study how to better recycle things.

And the recipient says, ooh, I wanna study why recycling is actually kind of a foolish ideas to most things. I've heard, by the way, that may be true, that in fact we are maybe recycling way too much and it's unjustified either as an economic or environmental matter. Some things may be justified.

As to other things, the government could say, look, okay, you're free to say that, but just we want this money to be spent for supporting recycling, not opposing it, we're entitled to do that. Or we want this money to be spent to promote recruiting. We're going to give you money in order to, excuse me, military recruiting in order to create a new pro military recruiting campaign.

Uncle Sam wants you. And if you instead make ads that say, you shouldn't want Uncle Sam, you shouldn't join the military, well, okay, you have a first amendment right to do that, just not with our money. So the government is entitled to do that, but at the same time the government can't just say, when we give you money, you have to agree not to use your own money, of which you may have plenty to express certain views.

Or we will deny you any grants if we find that you're using your own money to express certain views. That is something the government, generally speaking, can't do. I oversimplify here, of course, but, but that's, Those are two important principles.
>> Jane Bambauer: Yeah, well, I'd love to, to, to force, to, to force you to get a little deeper into that thicket because I find it almost impossible to square some of the, Some of the.

>> Eugene Volokh: It be impossible but necessary, right?
>> Jane Bambauer: That is true. That is true, yes.
>> Eugene Volokh: The government has to be able to say, we want to be able to spend money for a certain purpose and not for.
>> Jane Bambauer: Yeah, absolutely.
>> Eugene Volokh: Also, I mean, you could imagine a rule that says the government can attach whatever conditions it wants, including viewpoint based.

So say-
>> Jane Bambauer: One reason in a way we can't imagine that is that at some point the government could just, I mean, taking the tax example, it could say, okay, 70 tax on everyone. But you get this exemption credit if.
>> Eugene Volokh: If you promise to be pro government or pro diversity or pro affirmative action or whatever else, right?

>> Jane Bambauer: Yeah, so at some point, yeah, the funding versus coercion line is blurry. So, there is a line for sure. Go ahead.
>> Eugene Volokh: I think that's right. So one way this plays out is that I think here the government is definitely trying to use its, its funding to try to restrict the university from engaging in, from speaking out in support of certain kinds of views.

>> Jane Bambauer: Yeah.
>> Eugene Volokh: So for example, the, the letter calls for, for the government, excuse me, calls for Harvard to, to end recognition, as you pointed out, of certain student clubs, including ones that just advocate for illegal conduct. Advocacy of illegal conduct is, generally speaking, constitutionally protected. At the abstract stage, somebody could say revolution is a good idea.

You know, there were people in American history who said revolution is a good idea. Some of them we put on our currency. But even beyond that, the university must shutter all diversity and inclusion programs. Well, some of those programs may in fact engage in illegal discrimination, let's say, but others may be simply trying to promote certain kinds of use that are associated with the DEI movement.

Many of those views I disagree with, but the university is entitled to use its own money to promote those views. So those are examples of situations where the government is trying to essentially suppress certain viewpoints by imposing, essentially trying to impose this condition on government funds. And again, not just limited on viewpoints in the spending of those funds.

It's trying to essentially say we're not gonna give any funds to Harvard so long as it uses even its own funds for certain views. So that's one thing.
>> Jane Bambauer: Let me clarify one thing just to make it really, really abundantly clear for the audience. And then I have a specific question for you before you take us in another direction.

So first of all, in Harvard's complaint, they make many of the arguments that you just made, but they also rely on some text and a citation to Moody versus NetChoice. We've talked about that case like I think at least twice on this podcast already. But I just want to make clear that's not, that's not an analogous case because any, any, any reference to cases where the government, as it did in, in, in the Moody case, where the state law would have, the state law would have made mandated without.

This is not a, you know, a condition on funding. It's just a general blanket mandate or regulation that would have required platforms to be viewpoint neutral. For example, that kind of, that, that kind of regulation is distinct from the question of whether this is an unconstitutional condition on funding.

So I did want to make that really clear. So far I'm with you on everything you've said, but the case that I have a hard, difficult time squaring with the general idea that that the government can't leverage funding on one thing to accomplish a whole bunch of sort of speech related or viewpoint related goals in other stuff.

The case that I have a hard time squaring with that is Rust versus Sullivan. So that's the case where under title 10, any, you know, medical facility that takes funding cannot counsel or refer patients for abortion. And, and not only can they not. And so first of all, the interesting thing is that that operates at kind of like an office level not at a patient by patient level, right?

Because ideas, well, funds are fungible. And so even a place that does multiple services, it has to physically separate and even institutionally separate and, you know, financially separate any part of its program that counsels or refers for abortion. And so when you look at Rust versus and that was found to be constitutional, there was a, there was a challenge on First Amendment grounds.

It was found to be constitutional because the idea was, well, you know, the government is trying to, trying to effectively support its program, and its program is taking a view, you know, is taking a viewpoint on, on abortion. And so this is all consistent with that. And so when you extrapolate from Rust, and especially if you see what the government is doing.

So here's, here's the, here's the case I'd make. By the way, overall, I think Harvard has the better argument. But, but if I were to make the best case for the Trump administration, I'd say, look, the Trump administration, yes, it's very concerned about post October 7th. It also just concerned that an institution that it's funding, you know, $2 billion a year to, is, is, yes, producing a lot of great research, but at the same time, like 50%, you know, or at least like a quarter of the grant usually goes to overhead, or a third of the grant anyway usually goes to overhead.

That overhead gets commingled with everything else. And so therefore, we are actually supporting the humanities programs and all of these other programs that have been taking what we see as ideologically captured views. And so just like in Russ versus Sullivan, we're saying, okay, you can do that stuff, but you just need to spin off some Harvard University of activism.

And if you want to take our grant, you've got to stick with our version of what a good academic institution does. So how do you respond?
>> Eugene Volokh: So, first of all, I totally agree that Rust v Sullivan is a very important case. So that was a case where the government said, we're going to be funding basically preconceptional family planning, and we don't want to fund abortion, we don't want to fund prenatal care, we don't want to fund other things, that is to say, not just abortion, but advocacy of abortion.

And that's our program. And the Supreme Court said the government is entitled to do that, entitled to fund advocacy of one thing and not another. The analogy it gave is that the government can fund the National Endowment for Democracy without funding a National Endowment for Communism or fascism, right?

So, and the Court upheld the particular program there because it said, look, if some, some organization wants to take that, take those funds and use them for preconception family planning and then also advocate for abortion, that's fine. It just has to have various kinds of institutional structural separation to make sure there isn't that kind of coning play.

Now of course, one, and by the way, one example of the way this works is to take tax exemptions which are viewed as a form of subsidy. There's a tax exemption generally like for example, for charitable tax tax deductions. You need to have 501C3 status, but you can't then engage here, argue in support or against the election of candidates or engage in substantial lobby.

But what you could have is you could have a separate 501c4 organization. So some of your donors can give money the 501C3 which is gonna be taxed deductible and cannot be used for electioneering or substantial lobbying. Or can give non-tax deductible contributions to the 501C4 which can then be used in certain ways.

But of course, indeed universities are unitary institutions generally speaking from, from that kind of structure, structural perspective. And they, they don't generally have departments of, not even departments of DEI, but separate 501C4s or whatever.
>> Jane Bambauer: Right.
>> Eugene Volokh: I'm oversimplifying here, but separate organizations that do DEI. But in fact, Rust v Sullivan, the majority opinion written by arch conservative Chief Justice Rehnquist and by the way, I think he would endorse the, the label arch conservative.

I'm trying to be descriptive here, not pejorative. He actually contemplated that a bit. There's a passage where the Court says we have recognized that the university is a traditional sphere of free expression. So fundamental the functioning of our society, the government's ability to control speech within that sphere by means of conditions att.

The expenditure of government funds is restricted by the first Amendment. So I think that's one of the takeaways from Rust v Sullivan is that even though the government generally does have the right to say you can't use our money for purposes that are inconsistent with the message we're trying to convey.

And for many organizations can enforce that through these kinds of institutions, institutional segregation requirements. Perhaps for universities, it can't because among other things, you don't want the university to be sharply split up into various kinds of sub organizations that, that can do complete some of which can do certain things and other which others of which care.

So that's-
>> Jane Bambauer: Yes, and then also just independent from that, you're absolutely right. There are, there's a line of, you know, there's a line of cases that recognize in somewhat fuzzy terms the special First Amendment interest in academic freedom. And so universities really are distinct organizations, and so I think-.

>> Eugene Volokh: How distinct? Nobody.
>> Jane Bambauer: How distinct? Not clear.
>> Eugene Volokh: But, but there may be in fact some differences here. So, so let's just step away though from this for a moment. So so far we've been talking about this principle of the government can't use these funds as leverage for controlling, controlling the, the viewpoints expressed using the university's own funds, maybe even, even can't leverage them into certain kinds of content based rules, even if they're viewpoint neutral.

But there are, I think, some more problems with the government's actions here that Harvard, I think, correctly articulates. So there are certain things that the government surely can do and does do. So for example, it can say if you take federal funds, you cannot discriminate based on race or national origin, which has generally read to include anti-Semitic discrimination, anti-Israeli discrimination and the like.

It can say that it does say that. But the law also provides particular kinds of procedures for dealing with these challenges and particular kinds of limitations on the loss of funds that might stem from violations of those rules. So the second argument that Harvard is making is even for those things that in principle might be not First Amendment violations, the government is violating, basically due process, you might think about, and more specifically the statutory scheme that Congress itself authorized.

So some things the government can try to force us into doing through leverage, other things such as non discrimination, it could try to force us into doing. We understand that we're trying to comply. If we failed in some measure, there are procedures for dealing with that and the administration isn't following its own procedures.

There's a third-
>> Jane Bambauer: I would say that part of the case is a slam dunk and therefore less interesting part of the case.
>> Eugene Volokh: But it's important because note there's also a First Amendment connection here, due process is important in many ways, but one of the things it does is it protects other constitutional rights such as free speech.

So if the university knows that anytime it says something that might be upsetting or offensive to the administration, the administration could then without any due process, accuse it, find it guilty of and cut off funds based on some kind of non-speech violation. Then that will chill speech because people will be afraid that they can be basically pretextually found liable without any real process to prove that they in fact are guilty.

There's a third category of things going on here though, which is that the relevant statutes focus on discrimination based on race and national origin, but they don't talk about, for example, ideological discrimination. It's an interesting question to what extent the First Amendment gives universities a right to engage in some ideological discrimination.

Maybe yes, maybe not. It's actually complicated question, but Congress has not passed any statute that says as a condition of getting federal funds you have to not discriminate based on political affiliation and hiring or let's say in admitting students or whatever else. So another related argument that they're making is, look, whatever, at least some of the things that the administration is faulting us for, there's no statutory basis for faulting us for.

And in our system if the, if there are funds that are allocated, generally speaking, the President can't just say I'm going to withdraw those funds just because I don't like something you're doing. There needs to be some sort of statutory authorization for that kind of cutoff, especially once the funds have already been, have already been promised.

>> Jane Bambauer: Okay, very good. Because this was a question I wanted us to talk about is that part of what makes this case stronger for Harvard is that it's, it's retroactive. But if the Trump administration took the position, if it, if it, if it instructed NIH, NSF, etc, all of its grant making organization, you know, entities to from now on only provide grants to institutions that are, you know, that, that are ideologically diverse or whatever, then at that point I think some, some of Harvard's, that would cut off some of the arguments that Harvard is able to make today.

>> Eugene Volokh: Maybe, although that would be, that, that would raise the question, which we're not going to talk much about. At least I'm not going to talk much about because I'm not an expert on this. But the question of whether the current statutory schemes authorize the executive branch, just to say, even though Congress never told us to pursue ideological diversity and so on and so forth, in, in our grants, we're going to have such a rule going.

>> Jane Bambauer: Okay, so, so I agree.
>> Eugene Volokh: Depend on the particular statutory scheme they wanna.
>> Jane Bambauer: That may, but I will say this is something the NSF and all of these grant making agencies have done exactly what we're describing for at least a decade now. And so I will say that the NSF and NIH and all of the major grant giving organizations have gone outside the parameters of the basic research goals that they were originally set up for.

And so it is raising questions that are old questions, not new questions. But I just, it does.
>> Eugene Volokh: Maybe so. One other thing that I should mention just since, since we're, this is such an important part of the letter, is that securing ideological diversity is on the one hand, I think in principle a very good idea.

You don't want to have echo chambers. You don't want to have ideological monocultures. Generally speaking, I oversimplify here, but generally speaking, ideological diversity is pretty valuable to doing good research. I'm skeptical of claims of racial diversity and such, I think they're often overstated. But ideological diversity, very much so, and one test of that is, of course, I think people uncontroversially say, like you want to put on a conference or a panel on something just make sure you have people from both sides or many sides, right?

That's a more interesting panel to go to than if everybody is taking the same view. This having been said, actually setting up ideological diversity rules and then enforcing them on the government's part might itself pose important First Amendment problems because then you have to kind of decide what kind of ideological diversity qualifies.

What if the chemistry department does not hire someone who endorses the phlogiston theory of fire? Well, is that ideologically undiverse, well, yes, I suppose, but there's good reason, I'm told by the-
>> Jane Bambauer: Yes, cuz the competence versus versus viewpoint.
>> Eugene Volokh: Right, but beyond that, let's say that, for example, you look at a department and the department says, well, we're super ideologically diverse.

We have people from Bernie Sanders supporters all the way to Kamala Harris supporters, right? Well, that is maybe different views in some measure, but you'd say, well, that's not good ideological diversity. But let's say it does have kind of some conservatives, some liberals, some moderate, some says, well, you don't have any socialists, that's not ideologically diverse enough or you don't have any outright fascists, let's say people who actually endorse Mussolini's perspective.

Not just, not just people.
>> Jane Bambauer: Not just name calling, right.
>> Eugene Volokh: By being called fascist, well, presumably among other things, you don't wanna get situation where there are 10 faculty members in your department and there are boxes you can only fill them by the box. Well, this is the socialist slot or whatever else.

So it may be that these kinds of ideologically diverse, ideological diversity rules, if enforced by the government, including by the threat of removal funds, may actually be too likely to be viewpoint based in implementation, too vague in some respects also as well, which may lead to viewpoint discrimination that they may be impermiss and an interesting and important question.

But in any event, I'm just not sure that there's really any statutory authority for the government to say as to all of these funds which we've already allocated. We're just gonna cut them off because now we have this ideological diversity criteria.
>> Jane Bambauer: Good. Okay, so let me raise a few things that I think either the Trump administration has been thinking about doing or that it might do to see how you respond to these.

So first of all, before this letter, across all universities, the Trump administration had announced a reduction of overhead. So from usually it's 50 to 60% all the way down to 15%.
>> Eugene Volokh: Tell us a little bit what overhead is but not everybody might know what overhead is.
>> Jane Bambauer: Yeah, okay, so if you, Eugene Volokh, get a grant to study the, the origins or the, the source of fire, what did you call it?

>> Eugene Volokh: So I'm told that people used to think it was physical element that corresponded to fire, but apparently that is not so.
>> Jane Bambauer: I believe it is not so, but maybe the administration found their version of Bobby Kennedy. For the NSF and they're interested in reviving the study of phlogiston.

So suppose you got a grant to study phlogiserton. So you've, you've created a-
>> Eugene Volokh: Just to give the devil its due, I believe it's phlogiston.
>> Jane Bambauer: Phlogiston, okay, so-
>> Eugene Volokh: No, no, no, I think it's pronounced phlogiston, but there's no r.
>> Jane Bambauer: Phlogiston, phlogiston, phlogiston, okay, so you have prepared a budget to study phlogiston.

And so it includes, you know, a couple graduate students, a postdoc, another PI that's working with you. And altogether that's $1 million for all of the activities and research and otherwise that you need to do. On top of that, the university will request an additional half a million dollars for overhead, which is like, okay, well, you know, in order to even have Eugene Volokh in his office doing his lab work.

We have to have the lights on, we have to have staff, we have to have facilities, we need maintenance. And so rather than kind of, you know, describing this piecemeal, we're just going to estimate and, and, and say, okay, that we need a grant that covers an additional 50% to cover his, to cover all of this.

Now, as a matter of, you know, obviously 50% is quite a bit more than the amount of funding that's needed just for you and your graduate students to do the research. And so as a practical matter, universities for a long time have benefited. And, and you know, I should say, let, let me, let me be very unambiguously clear here.

I'm a big fan of the university as an institution. It does a lot, it, they continue to do a lot of incredible research. And the overhead is also important for, for funding all sorts of, you know, things that, that, that universities ought to do and for keeping tuitions a little bit lower than the, than they otherwise would be, I guess.

But, but in any case, a lot of these funds wind up kind of in a general fund and wind up being managed the way the university prefers. And so, so if the Trump administration reduces these drastically, the end result is that the research that they want to fund, the cancer research, the stuff that sort of looks really pressing and urgent in cases like the one that Harvard's bringing.

It could fund that research and therefore fund all of the faculty that are directly involved in the scientific research and effectively be taking away the cross subsidy that goes to the less scientific units. So there's one option. Another two options I'll throw out there are conditioning the giving of grants to universities that do not take money from sources that the administration might worry is actively corrupting campuses like Cotter, for example.

Then third, I too share your general sense that universities ought to be dew point diverse. That is extremely hard to define. One thing that the state of Florida did so, so I'm, I'm not a fan of most of the Stop Woke act, but I am a fan. I'm a very big fan of some parts of it here in Florida.

And one part that I really like is that the state legislature went ahead and funded a new unit, a new academic unit that revives kind of the study of classics and then also economics and philosophy and that sort of thing, the Hamilton center, they call it. And so they're just going ahead and creating grants for the hiring of the people they want.

And so it could be that there's just an additional layer of grants that, that goes toward the hiring of people that can, can balance out the institution. So I'm wondering what, what do you think of those, those ideas?
>> Eugene Volokh: So great questions. So first, with regard to the overhead, seems to me that the government can say we're only going to pay 10% of grant expenses for overhead or 20% or 0% or even, or even say, look, you want to apply for something, we're only going to pay half of what you apply for.

You have to get other funds for the other things. And we won't pay for any overhead. It's not a complete grant. Maybe we won't get as much of the research we want to fund, but we want to do it on the cheap. And sometimes it's a smart thing to try to do things on the cheap, sometimes not.

So I think that is certainly an example of a content neutral, or sometimes it could be content based, different rules for physics research than for history research, but viewpoint neutral condition on funding. And I think it's constitutional, unless of course, it's a pretext for viewpoint discrimination if they say, we're going to decide on a case by case basis how much overhead to give you.

But there's a memo that ends up being released inside the department that says, well, if the research has one viewpoint, then give it lots of overhead. Other viewpoints, don't provide any overhead, that might be subject to Rust v Sullivan, all the questions we discussed that might pose some serious problems.

Now the second thing is, or maybe it's the third thing, but is the question of funding particular centers that are aimed at promoting certain kinds of views. I think that poses interesting problems. I don't think they're first amendment problems. But I do think that there could be difficult administrative problems.

I mean, the, the reality is lots of universities have departments which while facially viewpoint neutral in practice, were set up in part because the university wanted to promote a particular kind of, of ideological agenda. And they could be, I'm told that for example, sometimes there are centers for the study of labor law and such.

Which are supposed to have a, or not supposed to, are created with an understanding they're gonna have a pro-union perspective. Or centers for the study of the environment that have a particular kind of environmentalist perspective. And of course, people have made the same arguments about various kinds of departments, identity studies departments and such.

I think that's the reality and I think it's again, very hard to police ideological neutrality there. I think given that if state government wants to say we're going to be funding the study of, of American originalism.
>> Jane Bambauer: Or something originalism or the study of.
>> Eugene Volokh: Originalism or study of law and economics, which is something not inherently conservative, but has been in some measure associated with, with conservatives or the, the study of kind of the, the classical influences on the framers or the framers influences on today or whatever else.

I think it has to be able to do that and the government has to be able to say we're going to selectively promote that. It poses pretty substantial problems, I think, in implementation, in part because there's the danger that the hiring process will become highly ideological there as well, and that in fact the funding will be used as a way of skewing the debate rather than evening out the debate there.

But I think it's almost inevitable given the fact that certain kinds of not quite disciplines, but at least sub disciplines, certain kinds of disciplinary approaches are associated with one or another kind of ideological perspective. In fact, from an academic perspective, they may be ideological perspectives, albeit not Democrat or Republican, but maybe free market versus socialist or whatever else.

It seems to me that some kind of ideological, of consideration of ideology and creating those things is in some measure inevitable, but there was another thing which may be your second category which unfortunately popped out of my head. So remind me.
>> Jane Bambauer: Conditioning funding on not taking funding from.

>> Eugene Volokh: Yes, I'm sorry, not taking funding from. So this is a very interesting question. I've been thinking about it in the context of the broader issue of free speech and speech to buy with foreigners. This is in a sense one of the questions that came up in the TikTok case.

It comes up in this question of deportation of aliens for their speech, t comes up in the question of support for foreign terrorist organizations, including support through speech. My inclination is to say that if the government were to say, look, you cannot take any money from the Chinese government or Chinese government linked entities or the Qatari government and Qatari government linked entities, I think that's got to be constitutionally permissible, that it's true.

It might interfere with the ability of the university to engage in speech because foreign money, like other money, helps fund speech. But I think especially when you're talking about foreign governments, the US Government has to have some authority to say, look, we're going to impose this on a viewpoint neutral basis, at least formally viewpoint neutral.

You can't take any money from those governments. It has to be able to do that. Tougher question is if it says you can't take any money from corporations or individuals from those countries. But even that I think there may be some, some latitude for, especially again if it's formally framed as a content neutral rule.

It's just about the source of the funding and not the message you're gonna, that, that you're going to, to fund using that funding. Of course, as a practical matter, the decision of which foreign governments you don't want influencing American educational life, may be based on your view of those foreign governments viewpoints but let me just say this is not at all a fully resolved question.

I'm inclined to say that the US Government would have some authority to restrict those kinds of funds, even when it's acting as sovereign, just imposing regulations on all American universities. But I think especially if it says if you want federal funds, if you want our government's money, you can't take the Chinese government's money or the Qatari governments.

I think. Do we have time to talk briefly about the tax exemptions? Very much on the table, so President Trump tweeted out something suggesting that maybe Harvard should lose its tax exemption because and actually, let me pull up the exact tweet because, partly because the words are maybe important and partly because what everyone might say about President Trump, he has a flair for the dramatic.

So the tweet says, perhaps Harvard should lose its tax exempt status, tax exempt and status. The first letter capitalized and be taxed again with a capital letter as a political entity. If it keeps pushing political, ideological and terrorist inspired, slash supporting, quote, sickness, close quote, remember, tax exempt status is totally contingent on acting in the public interest.

I say that that way because public interest is all caps with an exclamation. So IRS is apparently planning something along those lines, though the details are unclear. Now, can they do that? I think the answer is almost certainly no. And I made exactly the same point actually to, to a Democrat control house subcommittee in 2019 and before that in 2016 when I was talking about calls to strip the tax exemption from groups that are supposedly engaged in hate speech.

And my point was that very similar to what we were talking about before, the tax exemption is indeed a form of government funding. It is in a sense like a matching grant subsidy, a little complicated, but basically from an economic perspective, a tax exemption is a sort of subsidy, is equivalent to a sort of subsidy.

But even if you view it that way, you can't deny it based on the viewpoint that a group communicates. This actually goes all the way back to 1958. There's a case, Spicer view, Randall, which involved a state property tax exemption, but the analysis would be the same as federal income tax exemption.

There the tax exemption was denied to people and organizations that, quote, advocate the overthrow of the government of the US by violence or who advocate the support of a foreign government against the US in the event of hostilities. So at least-
>> Jane Bambauer: But that's against the public interest.

>> Eugene Volokh: Right, right, and that was the argument, why should we support advocacy of overthrow of the government? Why should we support advocacy of foreign governments of which we're at war, sorry, with which we're at war. And the court said, look, you can't. I oversimplify here again, but you can't try to, you can't use the denial of tax exemptions in a way that is, quote, frankly, aimed at the suppression of dangerous ideas.

Close, quote. So it's true that as a general matter, the justification for tax exemptions is public interest. And if you think that ultimately 500 and C3 organizations, generally, those are the ones that are kind of engage in a variety of charitable purposes or in particular universities, you think do not actually on balance, serve the public interest, then Congress could repeal that tax exemption, but the Congress and the executive can't.

Sort of on a case by case basis, say we think what you're doing is against the public interest because of its viewpoint, because of the ideas it may be. Maybe from a law and lawyer's perspective, you could say that's a perfectly good argument. We can tell which ideas are in the public interest and which aren't.

But the First Amendment precludes the government from making that kind of decision.
>> Jane Bambauer: Yeah, and we can contrast that with the Reagan versus taxation with representation case and that, that was a challenge to actually the law you were referencing earlier, the law that, that denies tax exemption to the portion of a non-profit that engages in electioneering and substantial lobbying.

And so that was challenged and the Supreme Court said, no, this is not a viewpoint based distinction. It's a, you know, it's sort of a, whether you think of it as methods or time placement matter or something. It's a-
>> Eugene Volokh: Content based but viewpoint neutral.
>> Jane Bambauer: Yeah.
>> Eugene Volokh: Yeah, that's quite right.

I think it's a necessary oversimplification of slightly complex issue in taxation of the representation which actually had to do with an exemption for certain groups from that kind of limitation on the exemption. But in any event, yes. So the government may be able to impose certain content based restrictions that are viewpoint neutral but not viewpoint based.

Now it is true that the law may treat groups differently based on their actions. The famous case in that is Bob Jones University vs United States where the court upheld an IRS policy of denying the tax exemption to universities that actually engaged in race discrimination. Bob Jones had a policy banning interracial dating among students.

And the court said that's race discrimination and that the IRS is entitled to say you don't get the tax exemption if you do that. But if the IRS wanted to take away tax exemption from a university because it thought the university taught pro racist views or taught a position to interracial marriage, that would be unconstitutional.

Now there are a few other complications. Again, all of this is fractal. We can have a whole separate episode just about that one case or just about tax exemptions. But the bottom line is, just as the government can't leverage a subsidy into control over the whole range of an organization's activities, so it can't in a viewpoint based way.

So it can't say essentially we're going to grant or deny these tax exemptions based on the viewpoint that you're expressing.
>> Jane Bambauer: Very good.
>> Eugene Volokh: So, you know, things are things are moving on all of this, at least on the, on the subsidy stuff in the Harvard case at the district court level.

My assumption is there's going to be some temporary restraining order, preliminary injunction, or at least argument on that relatively soon. So maybe at some point we'll revisit this question in light of an actual court opinion. And if not, I'm sure that both the Trump administration and life in general will keep giving us, giving us other interesting topics.

But I expect this is not the last we've heard of this particular controversy.
>> Jane Bambauer: I agree. And there may be, yeah, there may be other spin offs of on, you know, topics related to this one. So. All right, well, thanks for enlightening us, and-
>> Eugene Volokh: Well, thank you for enlightening us.

Very great pleasure as always, Jane, and we much look forward to the next episode.
>> Jane Bambauer: Indeed.
>> Presenter: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work, or to listen to more of our podcasts or watch our videos, please visit hoover.org.