Governance by vibes and deals.
End of the rules-based order for US higher ed?
The Trump administration is dramatically changing how higher education is governed in the United States. Colleges and universities are now governed by vibes and deals.
What do I mean?
We can start with the vibes. The administration has feelings about how things are and how things ought to be. For example, Trump and his allies think higher education is too liberal. They think that Diversity, Equity, and Inclusion (DEI) has run amok, and they don’t like it. They want to return higher ed to “American values” and meritocracy. Yet they provide very few specifics about what is wrong and how it should be remedied. Take, for example, today’s ruling from the Department of Justice (DOJ) that DEI is illegal. DOJ’s memo is sweeping, but no one knows exactly what it means for higher ed, what it doesn’t mean, and how binding it is. Like most things in the Trump administration, it’s ambiguous and likely shifting. But it does express the Trump administration’s feelings, and the administration is deadly serious about its feelings. It’s governance by vibes. It’s vibes-based tantrums, not credible evidence of wrongdoing, that prompts the university to cancel grants and withhold funds from universities.
We all feel the vibes. But what to do about them? The vibes are shifting and amorphous; complying with them in specific cases is nearly impossible. And the administration is emphatically not going to set out a clear rulebook that applies to everyone. Not on trade, not on immigration, and not on higher education. This is where the deals come in. You know the deals — the deal with Penn, the deal with Columbia, and now the deal with Brown. Writing in The Chronicle of Higher Education, Columbia University Law Professor David Pozen explained how governance by deals works:
… the Trump administration has begun to effect another, more dramatic regulatory shift … toward bespoke deals foisted upon individual institutions after summarily terminating or threatening their federal funds. ... These deals will not be the product of thorough investigations or judicial findings of misconduct by the colleges in question. No established legal process was followed for the Columbia agreement; no genuine legal dispute was resolved. The dealmaking is the main regulatory event from start to finish.
Deals are not rules for everyone to follow. No. They are temporary and always open to renegotiation agreements between the government and a specific institution. Institutions are either in a deal or in the chaos vibes storm. And even those who are in a deal need to check the weather daily.
How did we govern before it was all vibes and deals? With rules and norms.
US higher education had long been a rules-based system. In 1965 the the Higher Education Act established the governing “Triad” in which the federal government, state agencies, and accreditors created an interlocking set of guidelines and regulations that set the rules that governed how colleges and universities operated. In this system, the federal and state governments, and the academic profession as represented by accreditors, all had a voice in setting the rules of the road.
These governing rules were not static. The Higher Ed Act was designed to be updated every 5 years, and for a while, it was reauthorized roughly on that five-year schedule. States, of course, legislated and updated their higher ed regulations. The norms and expectations of accreditation have evolved. But changes were generally incremental and were implemented with plenty of notice and after deliberation with input from relevant stakeholders. At any moment in time, institutional leaders could have a pretty good idea about what was allowed, what wasn’t, and how they were expected to operate. The rules and norms were not static, but they were stable. Medium-term forecasts were possible. Nor were they perfect. And despite some pretty harsh criticism about accreditation by accountability hawks, in my assessment, the system worked … until it didn’t.
How did the rules-based order break down?
That’s a hard question, and answering it is a long story. My colleague Barrett Taylor from the University of North Texas and I have a contract with Harvard Education Press to lay it all out in a book titled (as of now) The Postliberal University. As events unfold, I’ll play with ideas from our book to analyze the news. But for the full story, you’ll need to read the book.
Ok, enough.