“Our Money or Your Life!” Higher Education and the First Amendment

Abstract In this chapter, Professor Cass Sunstein analyzes what limits, if any, the First Amendment imposes on efforts by the federal government to use federal funds to move institutions of higher learning in its preferred directions. What is the scope of the right to “academic freedom”? Is there such a right? Three propositions are well-established: (1) the federal government can generally speak as it wishes, free from the constraints of the First Amendment, (2) the federal government is generally forbidden from engaging in viewpoint discrimination in funding private actors, and (3) the federal government may not impose unconstitutional conditions. Harder questions arise when the federal government is using its authority over federal funds to prevent alleged or actual violations of federal law. Those questions are especially challenging when the government is not directly targeting speech but is intruding on institutions of higher learning more than the minimum necessary to redress or prevent violations of federal law. Such intrusions raise unresolved questions about the role of the void-for-vagueness doctrine in the context of federal funding and the general right to academic freedom. In the face of those unresolved questions, two canons of construction are relevant. The Avoidance Canon counsels in favor of construing relevant statutes so as to avoid constitutional doubts. The Major Questions Doctrine argues against construing statutes so as to give agencies “unheralded” and “transformative” authority. Both doctrines offer a possible response to the relevant agency actions without confronting the hardest constitutional questions.