Featured Article: “Columbia and Beyond: Case Agreements in Higher Ed”

Case resolution agreements are the current tool of choice for the Trump administration when dealing with colleges and universities. The agreements are particularly effective, combining broad institutional reform with financial incentives. Case in point: Northwestern University, which settled with the Trump administration on Friday, agreeing to pay $75 million to restore nearly $1 billion in frozen federal research funds. 
 

Northwestern’s funds were frozen while Department of Justice (DOJ) investigations into campus-sanctioned anti-Semitism and racial discrimination were ongoing. The settlement requires Northwestern to cease preferential treatment in admissions, hiring decisions, or promotions based on race, color, or national origin, along with maintaining free speech policies and enacting mandatory anti-Semitism training for students, faculty, and staff. Northwestern is also required to reverse its 2024 “Deering Meadow Agreement” with pro-Palestinian student protestors. For context, former Northwestern president Michael Schill struck a deal with the protestors, committing the university to “recruiting two Palestinian professors and providing five full-ride scholarships to students from Gaza, as well as building special housing for Middle Eastern, North African, and Muslim students,” says an article at the Washington Free Beacon. Note that none of the student protestors who disrupted classes and harassed Jewish students were disciplined before or after the Deering Meadow Agreement was struck. 
 

Northwestern is now one of six institutions to settle with the Trump administration, following the University of Pennsylvania, Columbia University, Brown University, the University of Virginia, and Cornell University. Northwestern’s agreement saved the university from a costly legal battle and a continued deficit in funding. Interim president Henry Bienen said in a video message post settlement that “suing would have cost time and money that we believe the university could not risk” and the settlement was “the best path forward for us to be able to turn the page.” It is not a stretch to surmise that the other institutions listed above likely held similar sentiments before their own settlements with the Trump administration.
 

Case resolution agreements are used when two parties wish to come to a resolution and a “voluntary” deal is struck. Just last week, the National Association of Scholars published a White Paper titled “Columbia and Beyond: Case Agreements in Higher Ed,” in an effort to explain and explore in short the consequences of the Administration’s case resolution agreement strategy. This follows from our work in Waste Land, which also touches on the Department of Education’s (ED) use of case resolutions as bureaucratic devices to impose policy changes within institutions of higher education (IHEs). 
 

Case resolution strategy, while effective, has potential pitfalls. An excerpt from Waste Land explains their use by the ED upon IHEs, “case resolutions technically are not obligatory rules, so they sidestep both the requirements of the Administrative Procedure Act (1946) and the principle that major policy changes should be made by statutes drafted by elected representatives who are democratically responsible to the people.” While “voluntary” in nature, case resolution agreements in higher education are usually in response to avoiding rigorous legal investigation by the DOJ, ED, and Office of Civil Rights—like Northwestern. It is easier to come to a resolution than face legal battles and loss of funding—which is why “voluntary” is in quotation marks. Thus, case resolution agreements can be effective, but also open concerns about government overreach, particularly when pressuring institutions to sign case resolution agreements. 
 

While many reformers see the fruits of case resolution agreements, some caution IHEs to be careful with the agreements they enter into. An opinion piece by Serena Mayeri and Amanda Shanor featured in the Chronicle of Higher Education offers sharp criticism of the Trump administration’s use of deals and his proposed “Compact.” Their concerns are best summed up as follows:
 

University leaders should think twice before signing agreements — even ones they view as narrow — that allow the federal government to exert ongoing control over their policies and operations. Such deals threaten to undermine institutional autonomy and academic freedom, and risk not only financial peril through funding cutoffs and other penalties, but also potential civil and even criminal liability.  

Mayeri and Shanor’s concerns are valid. Yet, if done correctly, case resolution agreements could potentially produce large-scale change in IHEs by encouraging compliance with existing law before the DOJ comes knocking. Of course, any long-term reform from case resolution agreements depends upon the institution upholding its end of the bargain.
 

What can be done to ensure university compliance with promises to change?
 

We suggest that independent education reformers step in. The ED and its officially appointed monitors may not have the time or resources to properly ensure IHE compliance. “Independent education reformers can make up that shortfall by conducting investigations into how well IHEs have fulfilled their case resolutions and by organizing publicity and political pressure to ensure the IHEs comply with their commitments.” 
 

For now, while keeping potential externalities in mind, we celebrate these early building blocks to higher education reform. But the work continues on. 
 

Until next week.

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