The power to cut off funds is important for civil rights, but Trump is abusing it

Over the last few weeks, as the Trump administration has withheld and threatened to withhold federal funding for universities and other recipients of federal assistance under the guise of civil rights enforcement, we have received calls asking, essentially, is that how civil rights law works? 

Can the federal government run roughshod over federal funding recipients and terminate funds without making a finding of discrimination? 

Two lawsuits — one brought by faculty at Columbia University and the other by Harvard College — argue that the Trump administration’s actions violate constitutional guarantees of freedom of speech as well as due process. As former federal officials with responsibility for civil rights enforcement, we support Harvard and others who refuse to be bullied.

The civil rights laws the Trump administration is purporting to enforce establish core prohibitions against discrimination. Indeed, any agency or organization accepting federal funds should be required to comply with them. But withholding funds without any actual finding of a civil rights violation or other due process is an act of political bullying rather than law enforcement. It fits into the larger pattern of an administration that seems uninterested in the constraints the law places on arbitrary government action.

Title VI of Civil Rights Act of 1964 prohibits discrimination based on race, color, and national origin by programs that receive federal financial assistance. It was signed into law by President Lyndon Johnson at a time when “White” and “Colored” signs still hung over hospital doors and water fountains. It sent a clear message to any public agency or private organization receiving federal funds that those signs had to come down. 

Title VI forms part of a comprehensive federal non-discrimination mandate for recipients of federal funds, along with other civil rights laws. Collectively, these laws prohibit discrimination and segregation on the basis of race, color, national origin (including English proficiency), disability, and age by programs or activities receiving just about any kind of federal financial assistance — educational and housing programs, health care services, transportation systems, and environmental agencies. They also prohibit discrimination on the basis of sex in educational and health programs receiving federal financial assistance.

It is the role of federal civil rights offices to hold recipients of funds accountable for complying with civil rights laws. Generally, this can be accomplished through other, less dramatic means, but as a last resort an agency sometimes must use the leverage that potential termination of federal funding provides. Important restraints are written into the law to prevent the misuse of power.

Universities, hospitals, city governments, environmental agencies, and other recipients of federal funds all have the right to see and challenge the government’s evidence of noncompliance; to reach voluntary resolution; and to appeal any decision to withdraw federal funds before funds are terminated. The federal government may not terminate or refuse to grant financial assistance without an express finding of failure to comply with requirements and an opportunity for a hearing. And even then, funding cannot be cut off unless the agency has determined that compliance cannot be secured by voluntary means. Agencies must also provide a written report to committees in Congress and then wait 30 days before taking action to terminate funding.

Sometimes the wheels of justice turn slowly, but due process is fundamental to our system of government. Terminating funding has never been the goal — instead, enforcement agencies use funding termination as a last resort in their efforts to promote compliance while enabling recipients to continue to provide services to the public.

It is hard to imagine that the Trump administration, in its short time in office, has completed thorough investigations of each of the universities it has targeted. Certainly it has not released anything resembling a standard letter of findings setting out in detail the concrete violations it has found. There is no evidence to suggest that the administration has sought in good faith to work with the universities to remedy perceived violations of civil rights laws.

Of course, the supposed violations the administration alleges — most of them boiling down to the administration’s view that it is illegal for institutions to seek to make themselves more inclusive, not less — turn civil rights laws on their heads. Programs promoting diversity, equity, inclusion, and accessibility generally facilitate compliance with civil rights laws rather than violating them. But even if one finds merit in the administration’s position on DEI, recipients of federal funds have due process rights.

Neither an executive order nor a command by the White House can terminate federal funding by fiat. If the administration has reason to believe that a recipient of federal funds is violating civil rights law, then let it follow established process — investigate and make a determination grounded in factual findings and application of law — rather than use political rhetoric to violate the very laws it is purporting to enforce.

Marianne Engelman-Lado, Leslie Proll, Sasha Samberg-Champion, and Jocelyn Samuels are civil rights lawyers who had responsibilities for civil rights enforcement at the EPA and the Departments of Transportation, Housing and Urban Development, Justice, and Health and Human Services, respectively, during the Biden and Obama administrations.