Northwestern caved in a rotten deal with Trump administration

Initial media coverage largely depicted Northwestern University’s recent deal with the Trump administration as a compromise in which the university pays the government $75 million to resolve civil rights investigations and restore frozen federal funding without sacrificing the university’s independence.

In reality, though, the Northwestern bargain endangers academic freedom and institutional autonomy, subjecting the university to ongoing federal control.

The deal echoes the Trump administration’s unlawful and unconstitutional “Compact for Academic Excellence in Higher Education,” which many universities — including Northwestern — rightfully rejected.

First, the government is using private agreements to remake federal law while evading federal lawmaking processes. For example, Northwestern’s agreement not only precludes consideration of race, ethnicity, sex or national origin in admissions, hiring or financial aid but also could be read to ban “proxies,” such as socioeconomic status, caregiving responsibilities or language proficiency.

These provisions far exceed what is required by the U.S. Supreme Court’s 2023 decision in SFFA v. Harvard, which calls diversity a worthy objective and permits consideration of how race affected an applicant’s life “through discrimination, inspiration, or otherwise.”

The agreement prohibits consideration of “race, color, sex, or national origin, whether implicitly or explicitly,” even in recruiting activities, potentially preventing lawful outreach to historically Black colleges and universities, Hispanic-serving institutions or women’s colleges.

The deal requires annual reports on the race, ethnicity, grades and standardized test scores of applicants and admitted students, presumably to accuse the university of discrimination. It mandates reliance on Department of Justice guidance as a “training resource,” despite its distortive and questionable interpretations of federal law.

Further, Northwestern insists the agreement makes no new policy regarding transgender community members. In fact, it bars gender-affirming care for minors and borrows its definition of “sex” from an executive order that erases the existence of intersex, transgender and nonbinary persons. It appears to require the university maintain “all-female” sports, locker rooms and shower facilities.

At best, these policies flout accepted interpretations of federal law: That students have a right to access education and school facilities in a manner consistent with their gender identity.

Second, the agreement expands federal surveillance and enforcement capacity. It mandates detailed restrictions on protest that cannot be changed without the government’s consent.

By coercing Northwestern to restrict speech far beyond what is necessary to protect students from unlawful discrimination, these terms violate the First Amendment.

Further, the university agrees to broad government powers to compel and share information —including student visa holders’ disciplinary and arrest records upon the government's request — with potentially ominous immigration, financial and privacy consequences.

The deal also lays groundwork for the government to obtain and share personal information against the wishes of students, faculty and staff.

The Trump administration recently sued the University of Pennsylvania, demanding names and contact information — including addresses — of members of campus Jewish organizations, Jewish studies programs, and participants in surveys and listening sessions about antisemitism, which Penn has rightly resisted.

The Northwestern agreement’s required disclosure of all “reports” as well as “complaints” of antisemitism seems likely to deter not only reporting of all forms of discrimination, including anti-Jewish bias, but also association with Jewish and other organizations, since doing either risks inclusion on a government list.

Finally, the agreement disclaims government “authority to dictate” admissions, hiring, curriculum or “the content of academic speech and research.” It does not provide for an external monitor, as the Columbia and Brown unversity agreements do.

But Northwestern’s president and board of trustees chair are required to certify under penalty of perjury compliance with detailed and contradictory requirements for admissions, hiring and speech. The government has declared its eagerness to investigate and prosecute “civil rights fraud” under the False Claims Act. These terms subject school officials to government whims and to potential civil and criminal liability.

It’s difficult to believe that such potentially draconian consequences will leave faculty, students, staff and administrators feeling free to express themselves or to make decisions that might displease the Trump administration — especially since any disaffected community member can report alleged noncompliance.

The resulting chill is one of many reasons that students and faculty — whose representatives voted 595-4 against such a deal — have strong legal and constitutional bases for challenging the agreement.

University leaders are under unimaginable pressure. But deals like Northwestern’s aggravate federal government intrusion and coercion; allow the Trump administration to extract millions without proving discrimination; and trample upon academic freedom, privacy and the freedoms of speech and association. We should not pretend otherwise.

Serena Mayeri and Amanda Shanor teach law at the University of Pennsylvania.