The one chance is to tie this up in the federal courts.* I recently drafted a letter to the Texas Bar Journal citing the First Amendment violations inherent in the Compact’s compelled silence and viewpoint discrimination disguised as “institutional neutrality.” Plain and simple: compelled neutrality is not constitutional neutrality. The Compact fails at several turns. Here are a few takeaways.
Agency for Int’l Dev. v. Alliance for Open Society Int’l, Inc. (2013), the Supreme Court struck down a federal condition that required recipients of HIV/AIDS funds to affirmatively oppose prostitution—even in privately funded speech. The Court held that compelled speech outside the funded program’s scope violated the First Amendment. Similarly, the Compact’s viewpoint restraints would apply across an institution’s entire governance structure, chilling academic speech well beyond federally funded activities.
In NFIB v. Sebelius (2012), Chief Justice Roberts, albeit in more rationale times, drew a red line around such federal coercion: when financial pressure becomes so severe that states have “no real option but to acquiesce,” the condition is unconstitutional. The Compact’s penalty structure—unprecedented DOJ-led enforcement, a one-year clawback of federal funds, and donor-triggered refunds — goes far beyond compliance and ventures into compulsion. Justice Roberts compared such Spending Clause overreach to a “gun to the head.”
The Compact is not “relatively mild encouragement.” It’s financial extortion. Additionally, only Congress (not the President) may condition federal funds, and even Congress may not do so with unconstitutional or coercive terms.
*What I have not explored - yet - is standing. Who or what organization, outside of the State of Texas or the Board of Regents (complicit twats), has standing to challenge the constitutionality of the Compact.
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