May, 2025
Washington — The Trump Administration is mounting multiple attacks on U.S. higher education. Federal judges in several jurisdictions have temporarily halted the assaults based on statutory and constitutional considerations, only to see the Administration defy the courts or appeal the decisions to drag the process out indefinitely, causing irreparable harm across an astonishingly broad spectrum of education, research, and economic activity.
So what are judges doing about being defied? So far, they have not found any Administration officials in either criminal or civil contempt, which serves to encourage more attacks. Moreover, the House of Representatives has passed a bill to limit federal judges' powers over contempt. Its fate in the Senate is uncertain.
So what are states doing to defend their higher education institutions, for which they are responsible under the Constitution? They seem to have been caught unaware, dumbfounded.
There are remedies if states would only pursue them. For example, Trump Administration employees who violate constitutional rights are specifically not immunized by the federal Westfall Act dealing with immunity.* There is little case law on such situations because the scale and audacity of the attacks on higher education are unprecedented, but there is considerable legal scholarship that suggests a role for the states.
Which leads to this question: what are governors and state attorneys general doing to protect their higher education institutions, public and private? Should they not be in court, given the dire threat to their economies, if for no other reason? Should they not consider calling special sessions of their legislatures if needed to pass tort legislation?
Only when violators of constitutional rights know they will be held accountable will the attacks end.
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*The Act does not apply to claims “brought for a violation of the Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A).
