The Road to Campus Serfdom

This post originally appeared at Law & Liberty.

It seems remarkable that seemingly antisemitic protests by undergraduates, such as those at my own university of Northwestern, could threaten the biomedical research funding of its medical school. But the structure of civil rights laws as applied to universities has long allowed the federal government to cut off funding to the entire university based on the wrongful actions of particular units or departments.

Ironically, the left, now alarmed by the federal government’s intrusive reach, bears direct responsibility for crafting the very legal weapons wielded against the universities it dominates. Almost four decades ago, progressive legislators demanded sweeping amendments to civil rights law, expanding federal oversight over higher education. The sequence of events reveals a cautionary tale of political hubris: progressive confidence that state power would reliably serve their ends overlooked the reality that governmental authority, once unleashed, recognizes no ideological master. Today’s circumstances starkly illustrate how expansive federal control over civil society, originally celebrated by progressives, returns to haunt its architects. The left’s outrage ought to focus not on this particular administration but on its own reckless empowerment of the state.

The story begins with Grove City College, a small Christian institution in southeastern Pennsylvania. Grove City sought independence from the federal government and its proliferating regulations to preserve a distinctive faith-based education. To that end, it refused all direct government funding. Some of its students, however, received federal Basic Educational Opportunity Grants (Pell Grants) to pay tuition. The Department of Education argued that because the college benefited indirectly from those grants, it must certify compliance with Title IX’s prohibition on sex discrimination. Grove City refused, insisting that accepting students who had federal aid did not subject the entire college to federal rules. The dispute reached the Supreme Court in 1983.

The Reagan administration inherited this enforcement proceeding but tried to take a nuanced approach to protect against giving the government power over all the operations of a private university.

Solicitor General Rex Lee, for whom I had the privilege of briefly working, argued that Grove City was indeed subject to Title IX because the college received indirect federal funding through students’ financial aid. Lee, however, also focused on a limitation contained in the statute, arguing that the restrictions on discrimination only applied to the “program” that received the federal funds—in the case of Grove City, that was the financial aid office—not the entire institution. Thus, Lee’s argument reflected the Reagan administration’s broader policy concern for protecting civil society, including religious institutions, like Grove City, from federal rules that could transform their campus.

By a 6–3 vote, the Court agreed with the Reagan administration’s position. It held that Title IX applied only to the specific program that received federal funds—in this case, the college’s financial aid office—rather than to the institution as a whole.​ In practical terms, this meant that Grove City College only had to ensure its financial aid operations did not discriminate on the basis of sex. This “program-specific” principle allowed self-determination for much of the college’s operations. It implied, for example, that Title IX would not cover a college’s athletic department unless that department itself received federal funds. It also followed that should a university refuse to end its discrimination in a program, the federal government could only withhold funds from the program that engaged in the discrimination.

As George Liebmann recently wrote for Law & Liberty, the left was enraged by the Reagan administration’s position and the Supreme Court’s decision. It pushed Congress to overturn it immediately. And after debates in Congress, in 1987, both the House and Senate passed the Civil Rights Restoration Act, which made all federal funds received by an educational institution subject to being cut off if there was discrimination by any unit. President Reagan vetoed the bill, warning that “would diminish substantially the freedom and independence” of universities. He saw it as a federal overreach—what he pungently labeled a “big government powergrab … cloaked in the mantle of civil rights.” Or, as Liebmann nicely put it in his recent essay, “Such power … allows the federal government to strangle institutions that don’t fall in line with its vision of social order.”

It is worth recognizing the intellectual roots of Reagan’s veto. Reagan was deeply influenced by Friedrich Hayek’s seminal work, The Road to Serfdom. He frequently quoted Hayek in speeches and hailed Hayek’s contributions when his successor, George H. W. Bush gave Hayek the Presidential Medal of Freedom. Hayek feared that central planning by government would crush autonomy not only of markets, but of civil institutions. Reagan’s veto was a direct application of Hayek’s liberal precepts.

But, despite Reagan’s veto, Congress nevertheless passed the bill over his veto. As a result of this change in law, all subsequent presidential administrations have enjoyed enormous leverage over universities. Any violation of Title VI or Title IX anywhere within the institution, as defined by an administration, puts a university at the risk of the loss of all federal funds in all its operations. Modern universities receive substantial federal funds. Virtually every university relies significantly on federal student aid. Research universities like my own receive substantial additional federal funding, particularly in biomedical research and in defense contracting.

And Democratic administrations made aggressive use of this leverage to change practices at college campuses in heavy-handed ways. The Obama administration’s “Dear Colleague” letter in 2011 effectively mandated that universities overhaul their procedures for sexual abuse and harassment cases or face total loss of federal funding. For instance, the letter asked that guilt be determined by a bare preponderance of the evidence standard, despite the heavy costs to a student from a guilty verdict and expulsion. It also undermined due process by discouraging cross-examination and mandating training in which investigators were encouraged to believe the accusers. The government was deploying its enormous power to dictate processes to universities and regulate their relations with their students and, by extension, students with each other.

The Obama administration did not limit itself to regulating conduct; it aggressively extended its authority to police campus speech. It argued that speech that listeners thought was of a sexual nature could lead to a finding of a hostile environment actionable under Title VI, even if that conclusion were not based on objective facts, but on subjective feelings. Such interventions encouraged speech codes and chilled debate.

In 2016, the Obama administration issued guidance interpreting Title IX to cover gender identity, advising schools that transgender students must be allowed to use facilities and participate in programs consistent with their gender identity or else be in violation of federal law.​ This requirement included access to bathrooms, locker rooms, and sports teams corresponding to their identity. Again, this interpretation represented an aggressive and expansive reinterpretation of Title IX. It seems plainly inconsistent with this language, which prevents discrimination based on sex—a concept that at the time of Title IX was passed—referred to biological sex. But colleges did not want to risk their federal funding by flouting such government ukases.

While many on the left decry the Trump’s administration’s attempt to use its power under the Civil Rights law to reform higher education to its liking, they did not lodge similar complaints against the Obama or Biden administrations’ exertion of power under the same authority.

Such expansive government authority validates Ronald Reagan’s Hayekian prophecy that empowering government inevitably undermines civil society’s autonomy. Hayek’s critique lays bare the dynamic of the current funding‑cutoff regime. A free society, he insisted, rests on rules that are general, abstract, and prospectively applied; once administrators may pursue favored social ends case by case, law dissolves into politics. Yet Congress now empowers federal agencies to “effectuate” anti‑discrimination norms by terminating—“in whole or in part”—every stream of federal aid to a university, while the Office for Civil Rights may invoke “any other means authorized by law.” Universities can thus face a remedial roulette, unsure how—or how severely—evolving notions of “hostile environment,” “pregnancy‑related conditions,” or “gender identity” will be enforced. The rule‑of‑law certainty Hayek prized yields to the horse‑trading of administrative justice.

Hayek also warned that central planners cannot marshal the dispersed knowledge lodged in local practice; uniform mandates inevitably misjudge context and breed perverse incentives. One federal definition of compliance now governs thousands of heterogeneous campuses. Because a single slip can imperil grants for physics or medicine, counsel imposes campus‑wide prophylaxis: mandatory trainings, speech codes, and quasi‑judicial procedures that outrun the statutory text. Washington’s abstractions flatten the landscape of academic life—precisely the epistemic error Hayek when centralized control becomes stronger.

Finally, Hayek identified a ratchet of increased government power: each discretionary intervention invites the next, converting temporary power into permanent dominion. As detailed above, Title VI and Title IX trace the pattern. Program‑specific oversight gave way to institution‑wide sanctions; race and sex have expanded into an ever‑widening catalogue of identities. Every “modest” extension prepares the ground for the next, tightening the lever and nudging higher education farther down the road to bureaucratic serfdom. Bureaucratic mandates by the government require more bureaucrats in the university who gain more power over university life, displacing the more varied perspectives and knowledge of the faculty.

Even under the old regime approved by the Supreme Court in Grove City, the government would have had influence over universities, because it could have cut off funds from units that violated its view of Title VI and Title IX. But its power would have been appropriately limited. Universities need not have feared the loss of all federal funds. They would have been in a better position to engage in a dialogue with the government rather than react to its dictates on any interpretation of Titles VI and IX.

Clumsy governmental dictates on contentious matters such as transgender rights do not merely settle disputes; they inflame societal divisions by transforming moral disagreements into winner-takes-all political battles. Civil society, by contrast, thrives precisely because it embraces diversity and facilitates compromise, allowing pluralistic communities to coexist peacefully without being conscripted into ideological warfare. The left, fixated upon uniform outcomes, consistently undervalues the power of voluntary cooperation and cultural persuasion. Their shortsightedness has delivered into the hands of their opponents the very instruments of coercion they forged, vividly confirming an enduring truth: the power you grant government today will inevitably be wielded tomorrow by your adversaries.

In the long term, the wisest course would be to return more autonomy to civil society, including private universities, by reducing the heavy hand of federal regulation. The Trump administration has demonstrated to progressives that governmental power over education is indeed a double-edged sword. Perhaps, having felt the blade’s sting, the left might now join friends of liberty in sheathing it.