The Trump administration is considering suing Columbia University to force it to accept a consent decree to remain in compliance, citing its belief that the school administration cannot be trusted to stick to any deal to reform the school’s policies.
Indeed, Columbia’s interim president resigned at the end of March after saying she would renege on parts of the interim deal she made with the Trump administration. That deal “banned wearing masks by protesters and extracted a promise to hire more intellectually diverse faculty,” as I reported at the time.
Katrina Armstrong abruptly resigned after The Free Press posted a transcript of her Zoom call with several dozen faculty members.
“Armstrong promised that there would be ‘no change to masking,’ and ‘no change to our admissions procedures,’ both of which the administration has demanded,” The Free Press reported. The administration had also demanded that the school’s Middle Eastern studies department be placed under academic receivership for five years. Armstrong stated flatly that the school would not accede to that demand.
So the fact that the administration is considering imposing a consent decree on Columbia isn’t surprising.
Columbia and the Trump administration are in negotiations on restoring $400 million in research grants that the administration cut due to a lack of action taken by the school in protecting Jewish students from antisemitic attacks.
A consent decree would be a major escalation of how the federal government normally resolves education-related civil-rights issues. Typically after federal lawyers investigate and find evidence that civil rights were violated, schools enter voluntary agreements to change their practices. The federal government has little ability to enforce such agreements. The Biden administration entered into such voluntary agreements over antisemitism concerns with Brown University and Rutgers.
For a consent decree to take effect, Columbia would have to agree to enter it. It is unclear whether the university board has discussed the possibility.
The key is that a federal judge would be in charge of enforcing the decree. A judge who would have the power to fine the school administration to force compliance would challenge Columbia’s ability to fudge, “reinterpret,” or slow-walk any aspect of the deal.
The leftists who were openly sneering during the congressional testimony of university presidents from prestigious colleges as they evaded direct answers and downplayed the antisemitism problems on campus won’t be “sneering” much longer if a consent decree is put into place.
In a consent decree, a judge ratifies an agreement between two parties — often the United States and an institution under scrutiny. The judge then has power to oversee the agreement, an arrangement that often lasts for years at a time. The administration’s pursuit of a consent decree was first reported by The Wall Street Journal.
But if a consent decree is under negotiation, either the administration or the school would probably have to file a lawsuit in federal court, which would serve as a vehicle for turning any deal into an agreement that a judge could oversee, said Tobias B. Wolff, a professor at the University of Pennsylvania’s law school who specializes in civil procedure and has written about consent decrees.
“Judges can’t just wave a wand and turn an agreement into a consent decree absent a lawsuit over which the court has proper jurisdiction,” said Wolff.
Can Columbia afford a long, drawn-out lawsuit that keeps that $400 million on ice for months or even years?
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The senior vice president of strategy at the American Council of Trustees and Alumni, Armand Alacbay, said, “This is the classic between a rock and a hard place.” If Columbia fought a lawsuit, there’s no guarantee they would win in the end.
If the Trump administration went for a consent decree, you can be sure the terms on the school would be very tough. It may be the only way for the administration to guarantee Columbia’s compliance with any agreement reached.
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