The Law and Politics of the Federal Assault on Higher Education: The Pasts and Futures of Higher Education

Host David Myers welcomes legal scholar Joseph Fishkin to discuss the present and future of higher education amid growing federal pressure on universities. Fishkin’s work spans constitutional law, inequality, and equal opportunity. Fishkin explains that law and politics are inseparable: while law operates as a specialized language with its own norms, it is always shaped by political context. Recent trends at the Supreme Court of the United States suggest courts may uphold controversial outcomes through strained reasoning, raising questions about whether legal norms can meaningfully constrain political power. Fishkin highlights an unprecedented recent federal strategy of using research funding as leverage, where grant cancellations and civil rights settlements are used to pressure universities to change hiring, admissions, and faculty decisions. Because universities fear retaliation, many hesitate to sue, though institutions like Harvard University and faculty-led groups have challenged these actions, with courts sometimes blocking grant cancellations, especially when First Amendment claims are involved.

Fishkin also discusses the aftermath of the 2024 pro-Palestinian encampment protests at UCLA, where a lawsuit alleged that Jewish students were excluded from campus spaces. UCLA quickly settled, likely to reduce conflict, but Fishkin argues the decision backfired by inviting further federal scrutiny and financial penalties while forfeiting the chance to build a stronger factual defense. As a Jewish faculty member who passed the encampment daily, Fishkin observed disruption but did not witness antisemitic exclusion, emphasizing a significant gap between lived reality and media-driven narratives. Viral videos and political rhetoric helped shape public perception, fueling lawsuits and federal intervention despite incomplete or misleading evidence. He concludes by reflecting on a broader crisis of truth in American politics, where false or exaggerated claims can influence public policy.

Joseph Fishkin is a Professor of Law at UCLA School of Law, where he teaches and researches a wide range of topics, including employment discrimination law, election law, constitutional law, education law, fair housing law, poverty and inequality, and distributive justice. Before joining the UCLA faculty he taught for a decade at the University of Texas School of Law, where he was the Marrs McLean Professor in Law; he was also a visiting professor at Yale Law School. Fishkin received his B.A. in Ethics, Politics, and Economics, summa cum laude, at Yale, his J.D. at Yale Law School, and his D. Phil. In Politics at Oxford, where he was a Fulbright Scholar. Fishkin’s latest book, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (with Willy Forbath), was recently published by Harvard University Press. His first book, Bottlenecks: A New Theory of Equal Opportunity, winner of the North American Society for Social Philosophy Book Award, was published by Oxford University Press. His writing has also appeared in various publications including the Columbia Law Review, the Supreme Court Review, the Yale Law Journal, and NOMOS. He also blogs at Balkinization.