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Wednesday, April 02, 2025
TL;DR: It's too much money to stand on First Amendment principle
I signed a letter of Northwestern alums urging the Board and the administration to hold the line. The well-lawyered response did not inspire confidence that NU will hold out--"With the federal government providing hundreds of millions of dollars annually to Northwestern in student financial aid and research grants, each of our choices carries risk to our institution." Worse, it does not appear NU (or any other school, perhaps save Princeton) wants to make the government take the money (something that, at the end of the day, it might be unable to do). In Civil Rights, we discuss how narrowing private rights of action (implied or under § 1983) to enforce Spending Clause enactments leaves funding cuts as the sole enforcement mechanism and how that is hard to do, given the statutory procedural and substantive protections. Apparently the real reason is that the federal government will not strip funds from Alabama for a discriminatory driver's license policy; it will strip funds from Northwestern for not doing enough to silence objectionable speakers.
Meanwhile, as another law firm falls, I wonder: Each firm has committed $ 100 million to pro bono work on which it and the Administration agrees. But will firms do additional work (beyond $ 100 million) on pro bono matters with which the Administration does not agree? Or is it committing to limiting its pro bono activities to those issues the Administration will support.* And does no one see the First Amendment problem with that? Milbank actually had an additional thing I had not seen with other firms--it pledges viewpoint and political diversity in its pro bono committee.
[*] Reportedly, Paul Weiss has stripped from its website PR stories about its pro-LGBTQ+ work. So that hints at the answer.
Posted by Howard Wasserman on April 2, 2025 at 04:37 PM in First Amendment, Howard Wasserman | Permalink
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