On Wednesday, according to The New York Times, the Trump Administration sent letters to nine universities offering them financial benefits and relief from investigations if they agree (among other things) to “freeze tuition for five years,” provide “free tuition to students studying math, biology, or other ‘hard sciences’ if endowments exceed $2 million per undergraduate,” “cap the enrollment of international students,” “commit to strict definitions of gender,” and “change their governance structures to prohibit anything that would ‘punish, belittle and even spark violence against conservative ideas.'”

I have not seen the letter itself, but it refers to a “compact” document that the universities are asked to sign, and that is here. It includes, among other things, a provision that “all university employees, in their capacity as university representatives, will abstain from actions or speech relating to societal and political events except in cases in which external events have a direct impact upon the university.” (Does that mean I may not publish an article about Ukraine and identify myself as a Tufts professor?) Erwin Chemerinsky says, “It would be hard to come up with a more explicit attempt to restrict freedom of speech.”

Failure to sign evidently means risking federal support, or at least facing investigations and litigation. “This Compact for Academic Excellence in Higher Education represents the priorities of the U.S. government in its engagements with universities …. Institutions of higher education are free to develop models and values other than those below, if the institution elects to forego federal benefits.”

Trump won the election, and elections have consequences. The Administration may write regulations governing higher education. So why doesn’t the Department of Education publish this “compact” as a regulation applying to all universities? One rule would then apply to all, and it would be transparent and predictable.

A rule would also be subject to judicial review, and colleges and higher ed. associations would have incentives to sue, arguing that the regulations exceed the statutory authorization of the Department of Education, violate the First Amendment, or both. Some or all of the regulations might survive judicial review. In any case, everyone would know the results and would have to comply with the courts’ rulings. Because the rules would apply to the entire sector of higher education in all 50 states, there might be considerable backlash from voters.

All of this–publicity, consistency, predictability, judicial review, and review by voters–constitutes the rule of law. These letters violate it.

Some institutions may willingly take the deal, and others may decide to settle even if they believe that it undermines their rights because it is cheaper to negotiate than to fight back. Already, the chair of the University of Texas Board of Regents has said that UT is “honored” to have been “named as one of only nine institutions in the U.S. selected by the Trump administration for potential funding advantages.”

The result will be a de facto policy, applied one institution at a time, with no judicial review. Colleges may accept deals that trade away their Constitutional rights. Possibly, students and faculty will have standing to sue their own institutions (as Jimmy Kimmel could have sued ABC), but it will be hard for third parties to challenge these “voluntary” agreements. And institutions that the Administration decides not to target will be left alone, thus reducing any backlash.

It is very important that students, faculty, and alumni of these communities advocate for their institutions not to sign the compact: University of Arizona, Brown, Dartmouth, MIT, the University of Pennsylvania, USC, the University of Texas, Vanderbilt University, and UVa.

See also: primer on free speech and academic freedom; AAUP v Rubio; Holding two ideas at once: the attack on universities is authoritarian, and viewpoint diversity is important