BY AARON NISENSON
The Trump administration has successfully buried a key component of the Columbia settlement agreement. The focus on monetary damages paid by the university and restrictions on campus protests and diversity policies obscures the Trump administration’s imposition of the right to interfere directly in university admissions, hiring, and promotion decisions.
The Trump administration has been explicit about its desire to change the overall culture at universities. In her statement regarding the Columbia settlement, US Secretary of Education Linda McMahon stated, “Our elite campuses have been overrun by anti-western teachings and a leftist groupthink. . . . Columbia’s reforms are a roadmap for elite universities that wish to regain the confidence of the American public by renewing their commitment to truth-seeking, merit, and civil debate. I believe they will ripple across the higher education sector and change the course of campus culture for years to come.” Thus, the Trump administration is seeking to change campus culture to match the administration’s ideological vision writ large—not just on antisemitism or diversity.
The settlement agreement advances this agenda by including dictates on core functions of the university: admissions, hiring, and the promotion of faculty. The agreement’s insidious dictates rely on seemingly innocuous terms. Admissions must be based on “merit.” Hiring and promotions must be grounded in “academic and professional merit.” However, these terms are inherently subjective and ambiguous. Ask fifteen different people to define merit, and you will get fifteen different answers. This ambiguity creates a massive opening for the Trump administration to impose interpretations that fit its ideological goals.
The settlement agreement then creates enforcement mechanisms that the Trump administration can use to drive the cultural change it seeks. It creates a “resolution monitor,” funded by Columbia, who is entitled to audit Columbia’s admissions, demand documents, interview Columbia employees, and ensure compliance with the agreement. Most importantly, the “United States and its consultants and agents will have access to all Columbia staff, employees, facilities, documents and data related to the Agreement” and can bring additional charges for violations of Title VI or other antidiscrimination laws.
Consider how the Trump administration can drive its desired version of admissions, hiring, and promotion. Under the agreement, Columbia must require that all students, who must be admitted based on “merit,” are committed to “free inquiry, open debate, and the fundamental values of equality and respect.” Hiring and promotion of all faculty and administrative roles will be “grounded solely in individual qualifications and academic and professional merit.” Normally a university could assume deference to its application of these terms. But the Trump administration is not obligated to show deference, and it could investigate admissions, hiring, and promotion decisions with which it is not satisfied. For example, if the Trump administration believed that Columbia hired a “left-wing” faculty member, it could—based on its definition of professional merit—demand all documents related to the decision, interview scores of Columbia employees, and threaten to pursue the university for breach of the settlement agreement. If Columbia admitted a student who led protests in high school, the Trump administration could demand all nonprivileged documents related to that student’s admission, interview all staff involved in admissions, and threaten Columbia with noncompliance with the requirement that students be committed to “respect.” Even if there was no subsequent change to a particular admission or hiring decision, those demands would create an incentive for the university administration to avoid future decisions that would draw the ire of the Trump administration.
Thus, the Trump administration would be able to insinuate itself into core activities of the university—admissions, hiring, and promotion—and drive the creation of the ideological culture that it truly seeks.
Aaron Nisenson is senior counsel for the AAUP.
Mr. Nisenson seems unhappy with the use of the term “merit” in the settlement agreement. He believes that this term is “inherently subjective and ambiguous.” He notes, “Ask fifteen different people to define merit, and you will get fifteen different answers.”
While that argument may sound good facially, it is really no more than a disingenuous red herring. The so-called ambiguity of the term “merit” fails when it is considered – as it must be – in the context of education and the full settlement agreement.
Here, in the university’s world, the term is manifestly understood to have an uncomplicated definition. It refers to some personal achievement, be it academic or otherwise. It means simply that Columbia should make its admitting and hiring decisions based on individual scholarship, talent, or accomplishment (artistic, athletic, leadership, etc.); and not on mere genetic characteristics.
Indeed, use of the term “merit” stands in stark contrast to some previously employed DEI criteria (skin color, sex, sexual preference, etc.) Such DEI unearned traits are not the product of individual effort; they lack merit; and – per the settlement agreement – shouldn’t be rewarded with any preferential treatment.
The silly notion that university administrators and PhDs would have trouble understanding and appropriately applying the word merit is, well, totally without merit.