AAUP Fills the Void the Columbia Administration Opened

Last week, Columbia University capitulated to the Trump administration's illegal and unconstitutional demands in an effort to induce the administration to rescind its illegal and unconstitutional suspension of roughly $400 million in federal funding. Although I fervently hoped that Columbia would pursue litigation rather than appeasement, I cannot say I was especially surprised. Individual scholars like me denounced the administration's treatment of Columbia, but for the most part other universities failed to band together to defend academia against this assertion of authoritarian control. Perceiving itself as largely on its own and facing an existential threat, the Columbia administration tried to save itself.

But Columbia has not been abandoned by the broader academic community. On Tuesday, the American Association of University Professors (AAUP) and American Federation of Teachers (AFT) sued various federal government agencies and officials on behalf of their members--including Columbia faculty whose funding has been cut. The complaint in AAUP v. Dep't of Justice is elegantly crafted and well worth reading. It asserts the constitutional and statutory claims I've been theorizing over the last couple of weeks, but fills out the story in much greater detail.

Many of those details concern the human cost and arbitrariness of the funding cutoff. Most of the examples of grants that were cut involve medical research into combating Alzheimer's disease, maternal mortality, long COVID, cancer, and much more. The complaint recites that the DOGE website listed the money withheld as "savings," as though all federally grant-funded research is waste, fraud, or abuse if it is performed by researchers affiliated with Columbia University.

Here's just one of the many examples of the arbitrariness of the cuts:

On March 7, Teachers College announced that it had “received notice that a number of [its] faculty grants are also being cut as part of” the government’s cancelation of $400 million in grants and contracts. Teachers College stated in this announcement that this was “[e]ven though Teachers College is an independent institution, guided by a separate Board of Trustees and President, one that enforces its own set of anti-harassment and anti-discrimination policies.” The statement continues, “These wholesale cuts to vital research endeavors will have lasting and devastating impacts on the public good, to which our university system is devoted: from public health, to K-12 teachers and students, mental health and counseling, community colleges, and much more.

The complaint also contains the following quite plausible allegation concerning Trump's pettiness:

Defendants also failed to provide any reasoned explanation for the particular sanction imposed on Columbia, and failed to provide any reasoned explanation as to whether any purported Title VI violations had been found to have occurred in any of the programs or activities that were the recipients of the $400 million in summarily terminated funds. Title VI requires that termination of funding be “limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.” 42 U.S.C. § 2000d-1. Contrary to this requirement, Defendants terminated “$400 million” in federal grants and contracts—the same amount that now-President Trump tried to demand from Columbia in real estate negotiations back in 2000, then as a private real estate developer—without any explanation of whether those grants and contracts had any relation to the programs (or parts of programs) in which the unidentified Title VI violation or violations occurred, or of why those grants and contracts in particular were targeted for termination.

I could go on with devastating excerpts from the complaint, but instead, I'll discuss two jurisdictional issues. The first is mootness: does the fact that Columbia has capitulated mean that there is no live case or controversy?

No, not at all. The Trump administration's March 13 ransom note to Columbia stated that, after the latter's capitulation, the administration "hope[d] to open a conversation about immediate and long-term structural reforms that will return Columbia to its original mission of innovative research and academic excellence." The ultimatum did not promise a restoration of funding if Columbia bowed--and to date funding has not been restored. Moreover, even if the government were to restore all of the funding at issue, such voluntary cessation would not suffice to moot the case for injunctive and declaratory relief, given the very real possibility of future cutoffs.

The second jurisdictional issue is organizational standing. It is well established that an organization can sue to vindicate its own interests or those of its members. The AAUP complaint alleges both sorts of injury, but the injuries to members are emphasized. Are they sufficient?

In a concurrence in last year's SCOTUS case of FDA v. Alliance for Hippocratic Medicine, Justice Thomas questioned the practice of allowing associations to sue to vindicate their members' injuries. If any members have been injured (or face imminent injury), Justice Thomas said, they should sue, not an organization of which they happen to be members.

AAUP v. Dep't of Justice illustrates what's wrong with that critique. No doubt because of well-justified fear of persecution by the Trump administration itself or the brownshirts Trump has energized with his pardons for January 6 insurrectionists, no members of AAUP are named as such in the complaint. That does not reflect a lack of detail. The complaint provides substantial details about how five of its members (three in Columbia's Mailman School of Public Health and two in its School of Social Work) have had funding stopped on multiple grants concerning studies of schizophrenia, HIV prevention, substance abuse, and more. All that's missing are the names of the researchers, no doubt for their safety.

Is that permissible? Sure. In a 2021 Second Circuit case, the court denied associational standing to a plaintiffs' organization that failed to make an adequate showing of concrete imminent injury to any of its members, but did not disagree with the plaintiffs' contention that it was not required to "name names" of its members. In the AAUP case, there is nothing speculative at all. The injuries to AAUP members have already occurred, and the complaint identifies those members with substantial detail, just not names. And a Second Circuit case decided this January reaffirms (in footnote 7) that, at the pleading stage, there is no requirement for an organization to provide the actual names of members whose injuries support standing.

Accordingly, although we can expect the government to demand the names of the AAUP members who have suffered financial (and other) losses as a result of the funding cutoff, the law does not require that AAUP provide them--at least not at this stage of the litigation. And of course, it is obvious to anyone who cares about the actual facts that of course AAUP has members who have been injured by the government's action. That is its whole point.

Having concluded that objections rooted in mootness and standing doctrine should not pose any obstacle to the AAUP lawsuit, I want to re-emphasize the utter outrageousness of the Trump administration's actions targeting higher education. As the AAUP complaint notes, they are a hallmark of authoritarian regimes, which "consider independent inquiry and thought to be a threat."

Authoritarians also deem lawyers and courts a threat, which is why the same autocrats in the Trump administration who are targeting academia are also targeting lawyers and judges. Given the possibility that the administration will simply ignore court orders or that Congress will attempt to abolish the seats of life-tenured federal judges with the temerity to follow the law rather than the president's diktat, litigation challenging the administration is not guaranteed to succeed in blocking unlawful and unconstitutional action. But litigation, coupled with robust public expressions of dissent, at least has a chance. Appeasement and capitulation will surely fail.

--Michael C. Dorf