Universities and Federal Funding

The Avoidance Canon and the Major Questions Doctrine Might Matter

The federal government seems to be coming fairly close to asserting the authority to run any universities that it funds. Does it really have that authority? If not, what authority does it have?

These are large questions. My modest goal, in these remarks, is to suggest the potential relevance of two legal doctrines to current disputes between universities and the federal government. I point to them because it is natural to focus on the big, bold issues (freedom of speech, academic freedom), which means that doctrines that might turn out to matter (a lot) are easy to ignore.

The first doctrine I have in mind is the Avoidance Canon, which tells courts to interpret statutes so as to avoid serious constitutional questions.

The second is the Major Questions Doctrine, which requires unambiguous congressional authorization for exercises of agency authority that are “unheralded” and “transformative.”

The doctrines are relevant and (I think) a lot more interesting than they might seem, even to nonlawyers.

But it’s going to take a while to get there. Still, I promise that we will do that. (Should I insert a paywall? Would that be mean? Or would it be kind, even merciful? We’ll see. I haven’t decided yet.)

Let’s get to work.

1. The federal government is engaged in increasingly intense struggles with American universities over the use of federal funds. Nominally, the central goal is to prevent and respond to antisemitism. But the various demands go well beyond achievement of that goal.

Obligatory but sincere notation: Viewpoint diversity is essential on campus. At some universities and colleges, some departments are in the grip of a left-wing orthodoxy. That is horrible, a betrayal of everything that higher education should be for. Discrimination against Jews should have no place on campus. Antisemitic actions are unacceptable, and in some places, they appear to be on the rise.

(Parenthetical note, 1: I was an undergraduate at Harvard, a law student at Harvard, and a visiting professor at Harvard; since 2008, I have been a professor at Harvard. I have seen or been subject to exactly zero antisemitic comments or acts at Harvard - none in the 1970s, none in the 1980s, none in the 1990s, none in the 2000s, none in the 2010s, none in the 2020s. I have reason to believe that my experience is not uncommon, though of course it is not universal. By contrast: In Washington, DC, and/or in connection with government service, I have seen or been subjected to countless antisemitic comments, some of them quite threatening, and almost all of them from the political right. My initial reaction to antisemitism is always surprise, even amazement: Really? But I am less surprised than I used to be. I have reason to believe that my experience in Washington, DC, is common, and it may be nearly universal.)

(Parenthetical note, 2: Countless classes, at most universities, are not at all political. I took a physics class, as an undergraduate, and - how to put this - politics did not come up. Maybe my professor, the great Gerald Holton, was/is a Democrat, but politics did not come up. By the way, I think he’s still with us, at the age of 100+. I had a terrific email exchange with him not so long ago.)

2. It’s hard to make progress on the underlying issues without getting into some details. What does the federal government want universities to do? Consider, for example, this:

   (a) “All existing and prospective faculty shall be reviewed for plagiarism and Harvard’s plagiarism policy consistently enforced. All hiring and related data shall be shared with the federal government and subjected to a comprehensive audit by the federal government during the period in which reforms are being implemented, which shall be at least until the end of 2028.”

   Or this:

   (b) “By August 2025, the University shall commission an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse. This audit shall begin no later than the summer of 2025 and shall proceed on a department-by-department, field-by-field, or teaching-unit-by-teaching-unit basis as appropriate.”

For a physics department, what does that mean? For a biology department? For a math department? For an astronomy department? For computer science?

Or consider this:

(c) “Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity.”

Or this:

(d) “By August 2025, the University must reform its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence.”

Or this:

(e) “The University must immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop all DEI-based policies.”

3. Directives of this kind obviously raise two sets of questions:

(1) Is the federal government acting consistently with statute? Does it have statutory authorization for what it is doing?

(2) If the answers to the questions in (1) are “yes,” is there a constitutional violation?

There’s a lot to say about both questions, and they are the main event. But I’m not going to say a lot about them. In fact I’m not going to say anything at all.

4. Here are my main claims. As a matter of law, two background principles might also matter: the Avoidance Canon and the Major Questions Doctrine.

The Avoidance Canon has a weak version and a strong version. The weak version states that if a court is presented with two interpretations of a statute, one of which would be constitutionally valid and one of which would be invalid, and if the statute is ambiguous, the court should adopt the interpretation that is valid.

The strong version says that if a court is presented with two interpretations, one of which is unquestionably valid and one of which would raise a serious constitutional issue, and if the statute is ambiguous, the court should choose the interpretation that is unquestionably valid.

The strong version is a lot stronger than the weak version. It suggests that even if an interpretation would not necessarily violate the Constitution, it should be avoided if it would raise a serious constitutional issue.

Here is the implication. If an agency decision to withhold federal funds would raise a serious constitutional question, relevant statutes should be construed so as not to allow that withholding, so long as those statutes are genuinely ambiguous.

Suppose that statutes may or may not give the federal government authority to do what it has been doing here. Suppose, as seems plausible, that what the federal government is doing raises serious First Amendment issues. If so, there we go: Under the Avoidance Canon, ambiguous statutes must be interpreted so as not to raise those issues. If so, the universities win.

5. The Major Questions Doctrine is a lot newer than the Avoidance Canon. Justice Neil Gorsuch has defended it in some detail. It remains in a process of development. Under the Major Questions Doctrine, agencies are not allowed to act in ways that have extraordinary “economic and political significance” unless Congress has clearly authorized them to do so, above all if the contemplated actions are “unheralded” and “transformative.” This is ordinarily understood as a nondelegation principle: If agencies are doing something extraordinary, they had better point to clear authorization from Congress.

There is little doubt that what is now being done, or contemplated, by relevant agencies has extraordinary economic and political significance. It has extraordinary economic significance because we are speaking of a lot of money (billions of dollars). It has extraordinary political significance (that is self-evident).

What is being done is also (and this may be more fundamental) “unheralded” and “transformative.” Administrations have done a great deal to police civil rights violations on campus, of course, but we have never seen anything even a little bit like this.

What is happening would count as a massive transformation of the role of the national government with respect to universities, and if anything, that understates matters. For example: (a) Federal regulators have never overseen plagiarism at universities they fund. (b) Federal regulators have never asked for a third-party assessment of viewpoint diversity. (c) Regulators have never asked to abolish DEI programs as such.

The whole is at least as big as the sum of its parts. In some ways, it’s bigger. One more time: The federal government can be seen to be coming pretty close to asserting the authority to run the universities it funds. If it has the authority to do what current agencies are seeking to do, an administration with very different political convictions (say, left or far left) could almost certainly do all kinds of things to press the nation’s universities in its preferred directions.

6. There have been a lot of words here, but the main themes are simple. First, the Avoidance Canon may turn out to be a good tool for those challenging agency action, and a problem for the government. Second, there is a chance that the Major Questions Doctrine, not much loved by the left, might turn to be a foundation for a legal attack on agency efforts to transform the nation’s colleges and universities. Both of these points have broad implications for challenges to agency action under any president — today, tomorrow, and the day after that.