Columbia University recently reached a $221 million settlement with the Trump Administration over charges of antisemitism and other civil rights violations.  As critics have noted, the administration engineered this deal by ignoring procedural and substantive limitations on civil rights enforcement:  rather than follow required procedures, it simply terminated grants and contracts to create pressure for a settlement.

But there is more to the story.  While the Columbia saga reflects a troubling extension of “regulation by deal” or “transactional administration,” it is also an illuminating case study in constitutional polarization—and the systemic risks and incentives that such polarization creates.

Some background on civil rights law is important here.  Despite the negotiations’ focus on campus antisemitism and disruptive protests after October 7, the Columbia deal goes beyond those questions to generally forbid consideration of race and other protected identities in hiring and admissions.  This understanding of federal civil rights law accords with the Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard, but it remains a point of acute partisan disagreement.

As reflected in SFFA and the settlement, contemporary conservatives typically embrace an anti-classification or “colorblind” understanding of civil rights.  They view any consideration of group characteristics as the very evil that the Equal Protection Clause and anti-discrimination law combats.  By contrast, contemporary progressives by and large embrace an anti-subordination approach:  they view current measures making recompense for historic group disadvantages as permissible, and perhaps even mandatory.

For about fifty years before SFFA, the Supreme Court avoided both these positions and hewed to a middle course.  The pattern began with the moderate conservative Justice Lewis Powell Jr.’s controlling opinion in the 1978 case Regents of the University of California v. Bakke.  Powell held that while public universities could take race and other forms of historic disadvantage into account, they could do so only through holistic, individualized assessments aimed at promoting student body diversity.  Later, Justices Sandra Day O’Connor and Anthony Kennedy embraced this same view in majority opinions for the Court.

Though something of a muddle, this understanding had the virtue of giving force to both major perspectives on civil rights.  On the one hand, it preserved some possibility of affirmative action.  On the other, it required governments to treat people as individuals rather than ciphers for group identities.  More subtly, it also promoted a certain political balance.  As Powell hinted in his Bakke opinion, favoring diversity might mean considering not only race but also factors such as religion, geography, and parental employment that tend to track conservative rather than progressive politics.

Whatever the virtues of this compromise, polarization eventually undid it.  As universities grew into progressive bastions, many of them converted “diversity” into code for an especially rigid and exacting version of the anti-subordination approach; by requiring “diversity statements,” some even used it to exclude adherents of the anti-classification view (i.e., conservatives).

Then the Supreme Court, emboldened by a strengthened conservative majority, struck back.  In its SFFA decision, the Court junked the Bakke compromise, interpreting both the Equal Protection Clause and federal civil rights statutes to require a more categorical, anti-classification approach.

Reactions to the decision were predictably polarized, and many universities did not exactly fall over themselves to comply with it.  Nor did the Biden Administration force them to.  In response to the decision, Biden himself said “this is not a normal Court.”

Enter the second Trump Administration.  Upon reassuming office, Trump immediately set about aggressively enforcing the conservative vision of civil rights reflected in SFFA.  With respect to universities, his administration did so by abruptly (and unlawfully) suspending billions of dollars in grants and contracts.

These tactics reflect yet another escalation in the persistent cycle of partisan presidents seeking to accomplish contested policy aims unilaterally through executive action.  Yet the Columbia settlement is also innovative in other respects.

Rather than leave enforcement entirely up to the government, the Columbia settlement, like many consent decrees, imposes an independent monitor to oversee compliance.  It also requires disclosure of admissions data—a step that could enable private litigants to bring suits based on SFFA and more easily survive motions to dismiss without first obtaining discovery.  Finally, presumably to make an example out of Columbia and help deter other violations, it imposes an extravagant penalty of some $221 million.

Although this settlement lasts only three years, these features could provide a model for decoupling enforcement of such agreements from future changes in executive policy.  By appointing a non-governmental enforcer, enabling private litigation, and creating a deterrent warning to others, a deal along these lines could guard against the likelihood that, whenever they next regain the White House, Democrats will once again orient federal policy around an anti-subordination vision of civil rights.

In any event, the administration presumably hopes that changes wrought by the deal will outlast its term in office.  But will they?  They might in this context.  Columbia probably agreed to the settlement in part because it knows that defending certain policies (let alone its handling of the protests and campus antisemitism) would be a losing battle in court under SFFA.  For the same reason, it might be reluctant to change course, even if urged to do so by a future administration; it will not want to end up paying another $200 million.

The trouble is that, as with most innovations in executive power, the techniques pioneered by the Trump Administration could easily be employed in the future for different aims.  Even in the area of civil rights, a future Democratic administration might mirror Trump’s tactics by threatening federal funding unless schools go back to favoring diversity.  Even without courts on the administration’s side, such measures would put schools in a bind.

And there are probably other potential applications too, including some that we cannot predict or foresee.  Past Democratic administrations have not been shy about using settlements and consent decrees to set policy.  Trump’s example may embolden them to apply such techniques more aggressively and in ways that, like Trump’s deal, seek to evade judicial involvement.

More generally, this episode carries important lessons about the role and capacity of the Supreme Court in the current political environment.  It is not new for the Supreme Court to make controversial decisions, nor for those decisions to encounter resistance.  The same was true, famously, of the Warren Court.  But the Warren Court’s key decisions had durable political support at the federal level in Warren’s heyday.

The distinctive feature of our time is persistent, close division between two ideologically polarized parties with quite distinct constitutional visions.  As a feature of this environment, the two major parties have pursued ever more extravagant policy goals and sought to channel their visions of law and policy into constitutional interpretation, even as the electorate (or at least the median voter) has kept signaling that it doesn’t care much for either party’s outlook.

In this environment, as I have argued elsewhere, courts should be looking to contain destructive conflicts over constitutional meaning by aiming, when possible, to spread out the constituencies supporting key civil liberties and structural restraints.  When possible, in other words, courts should favor understandings that symmetrically protect groups and interests on opposite sides of key divides instead of those on only one side. 

Current broad protections for free expression offer a paradigm for such an approach, but so too, in a way, did Bakke.  For all its faults, the Bakke compromise helped reduce political conflict over affirmative action, so long as everyone took its guideposts and limitations seriously.

Whatever one thinks of its merits, SFFA stands as a cautionary tale regarding the potential effects of polarizing approaches to constitutional law.  By aligning its jurisprudence more sharply with one side of a polarized divide, the Court inflamed political conflicts over constitutional law and invited resistance—and by doing so it ended up encouraging innovative and aggressive uses of executive power.  Those innovations have now likely degraded commitments to procedural regularity that were previously matters of broad consensus, yet without those commitments courts will have no power in the first place.

Zachary S. Price is a Professor at the University of California College of Law, San Francisco (formerly UC Hastings).  His book “Constitutional Symmetry:  Judging in a Divided Republic” was published by Cambridge University Press in 2024.