How Higher Ed Should Engage with the Government

Replace corrupt processes with constitutional ones

Last week I made an argument that the group of universities invited to engage with the Trump administration around a compact for excellence in higher education should coordinate to do three things: (1) refuse to sign the compact as drafted; (2) work together to frame a new social contract for higher education; and (3) steer their proposal toward the congressional committees responsible for amending the Higher Education Act.

Why does this small set of universities have a distinctive role to play? Most of them were not already in negotiations with the Trump administration and therefore wouldn’t be disrupting processes that were already underway. Also, their heads are now above the parapet. They don’t have to fear drawing attention to themselves; that attention has arrived. Across the sector, they alone find themselves in a reasonably safe place to coordinate. That’s an invaluable opportunity.

The responses to my column from colleagues at my own and other institutions were mostly positive, though the negative comments were sharp, and I suspect more accurately represent the majority view. The most temperate versions of those criticisms focused on the reality that the Trump administration is not a good-faith actor and on the indisputably authoritarian direction of travel of the Trump administration. One colleague worried that engaging with the Trump administration is like inviting Tony Soprano into your business; another, that it is to normalize authoritarianism.

These are important concerns that deserve an answer. We find ourselves in the unprecedented situation of having to make judgments about how to right a ship that appears to be sailing toward authoritarianism, revolution, civil war, or all of the above.

New York Times columnist David French neatly traced how Karin Immergut, a judge who was appointed by Donald Trump, blocked the deployment of the National Guard in Portland, Oregon, on the grounds that the president didn’t deserve deference in his judgments about the use of military resources because his “determination was simply untethered to the facts.” Immergut did not refuse to engage with the administration’s arguments. Instead, she appropriately acted on her own powers to redirect policy into legal channels, including by taking the time to give the administration’s claims a precise review and rebuttal. As French summed it up, although presidents have historically received great deference from the courts, “Dishonest presidents should be entitled to no deference at all.”

This insight is of superlative importance in charting the way forward. Yes, Trump has plainly authoritarian instincts that loyalist appointees are enabling and amplifying. As White House press secretary Karoline Leavitt has said, “[E]veryone on his team embraces his instincts, decision-making, and the top-down leadership approach.” Yet the problem we face most immediately is not actually authoritarianism, but corruption.

Our federal system has been thoroughly corrupted away from its ability to defend the rights of the people. Not only the judiciary but also Congress was intended to check an executive who seeks to breach the bounds of the constitutional order. Why, then, is Congress unable to check the president? Because the members of its majority party are by and large dependent on the president for their offices. Thanks to low-turnout party primaries in gerrymandered congressional districts, the House of Representatives is no longer an independent branch. This is a fatal corruption of the structure intended to represent the people and protect our rights.

The exceptions to this problem of the dependence of legislators on the president disproportionally come from states that have reformed their electoral systems to get rid of party primaries and/or to integrate ranked-choice voting: Louisiana, Alaska, and Maine.

But those few exceptions are not enough to right the ship. As a consequence, the whole apparatus of our government has been swept up in practices of self-dealing. The Trump family is plainly enriching itself from governmental service, via crypto, international deals and other means. Although the public overwhelmingly supports a ban on stock trading by senators and representatives, Congress is having difficulty passing one. The dependence of both parties on billionaire donors, especially in the tech industries, has resulted in an inability to regulate social media platforms that are corrosive of our social fabric. That dependence has also produced a massive transfer of power from our governmental institutions to tech titans — first and foremost Elon Musk and Peter Thiel — the robber barons of the 21^st century. The Trump administration is indeed trying to pull the higher ed sector into this morass.

What’s at stake in a judgment as to whether it is authoritarianism or corruption? It’s crucial that we correctly define the fundamental challenge we face.

A focus on authoritarianism suggests that the main problem is a particular person and his approach to governance. A focus on corruption suggests that the problem, to quote an 18^th century critic of King George III, is “that system of corruption which has brought the Nation to Disgrace and Poverty and threatens it with the Loss of Liberty.”

The former view would lead us to think that the most important action we can take is to resist the authoritarian at every turn. The latter leads to the view that pulling our institutions away from corruption is the most important thing.

The former point of view has led higher education to stick its head in the sand and largely ignore what the American people are communicating to us. The latter one requires us to seek to engage with the people by means of processes that are not corrupt.

And those constitutional, democratic processes point in a clear direction: We should work, as a sector, to activate Congress to bring a framework of legality to bear in the creation of a new social contract for higher education and America, and we should invite the executive branch to participate within that framework of bounded legality. We can’t, and we shouldn’t, pretend we don’t have an executive branch. But we should do whatever is within our power to see that it acts within the law. Litigation is one way we can do that. Activating our legislators is another.

If we follow this path — if we strive to replace corrupt processes with constitutional ones — we will make clear that we are using every power at our disposal to strip our national institutions, and our own institutions, of corruption. That is the only way to steady this storm-tossed ship.

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ICYMI: