Meanwhile, the costs to the institutions that settled—not to mention the costs to our democracy—have been profound, even if they’ve been difficult to measure. CBS was once the most respected news organization in America thanks, ironically, to its fearless coverage of McCarthyism; now it’s a punchline on the late-night talk shows. The law firms that capitulated to Trump have lost not only their credibility as advocates but also some of their clients, partners, and associates. The leaders of these institutions were absolutely right to conclude that litigation would be risky, costly, and insufficient. But we know now that litigation, for all of its drawbacks, was preferable to the alternative.
Third, some institutions settled with Trump because they were sympathetic to his administration’s agenda, or to parts of it. Some university leaders were sympathetic to the Trump administration’s criticisms of affirmative action and DEI, and they shared the view that elite universities had become hostile to conservative viewpoints and to white men. Some university trustees and alumni thought the arrests of foreign students who had participated in pro-Palestinian protests were not just justified but overdue. Some trustees, administrators, faculty, and advocacy groups saw in the Trump administration’s hostility to higher education an opportunity to institute changes that they themselves had been advocating for many years. I said earlier that universities had capitulated to the Trump administration but in some cases the dynamic was more collaboration than capitulation.
I think we’ve already seen that this strategy was short-sighted, too. The Trump administration has seized on concerns relating to antisemitism and DEI to justify a much broader and still-expanding attack on higher education. Judge Allison Burroughs, who presided over the case in which Harvard successfully challenged the cancellation of its grants, wrote that the Trump administration has used antisemitism as “a smokescreen” for its own unrelated policy agenda. That assessment seems exactly right to me. The Trump administration is similarly using “free speech” as a smokescreen for all kinds of censorship. For example, in the name of free speech it’s revoking the visas of researchers who study misinformation, investigating news organizations for exercising editorial judgment, and (as I mentioned already) demanding that universities abolish departments that belittle conservative ideas. Those who have tried to make common cause with the administration on issues relating to equality and free speech have been used.
Finally, some institutional leaders just thought it would be better if other institutions did the fighting. This is always the dynamic with bullies, of course. There’s always the hope that, if one keeps one’s head down, the bully will focus his attention on someone else. And there’s always the hope that someone else will do the difficult work of putting the bully in his place. Courage is a public good, and so it’s undersupplied.
In describing the atmosphere in the United States in the years immediately after the Second World War, Norman Mailer wrote that “a stench of fear ha[d] come out of every pore of American life”—that the nation was suffering from “a collective failure of nerve.” He lamented that “the only courage, with rare exceptions, that we have been witness to, has been the isolated courage of isolated people.”
The landscape in the United States now is similar, and for similar reasons. Most of the leaders of the United States’ elite universities, news organizations, law firms, and cultural institutions understand very well that Trump poses an extraordinary threat to the democratic freedoms and values that are essential to their own institutions’ thriving and indeed survival. But there is a collective failure of nerve. The leaders of the United States’ elite institutions haven’t been willing to use the tools that the constitution, the laws, and the courts afford them. They seem also to lack the political structures and human relationships that would allow them to organize a coordinated, collective response to the threat that Trump poses.
Judge Hand delivered his “Spirit of Liberty” speech on May 21, which at that time was known as “I Am an American Day.” It was a naturalization ceremony, a celebration of immigrants and of all they contribute to American life—the kind of celebration that Mohsin Mahdawi, the Columbia student, might have attended had he not been arrested when he arrived for his naturalization interview. The speech is about courage. Hand celebrates immigrants who had “courage to break from the past and brave the dangers and the loneliness of a strange land.” He wonders, “what was the object that nerved us, or those that went before us, to this choice”? And then when he asks them to pledge their faith in “the glorious destiny of our beloved country,” he tells them that the America of their aspirations will never come into being except as “the conscience and courage of Americans create it.” So leaving one’s home requires courage, but creating the nation of one’s aspirations, and defending it—those tasks require courage, too. He pays tribute to the “young men who are at this moment fighting and dying” for an America that has not yet come into being.
The spirit of liberty is still easy to find in the United States, but you have to look beyond the leadership of elite institutions. Among ordinary citizens, there’s no scarcity of civic courage. The No Kings Day rallies over the summer drew around 5 million Americans to demonstrations in 2000 cities and towns across the country. Thousands of Americans protested President Trump’s deployment of the national guard in Portland, Los Angeles, Chicago, and Washington. Government lawyers have resigned rather than participate in corrupt investigations and prosecutions. You’ve all seen the footage of Americans around the country trying to protect their immigrant neighbors from ICE, even as ICE raids have become increasingly violent and Vice President Vance has assured ICE agents, falsely, that they enjoy “absolute immunity” for actions taken in connection with their duties. The tens of thousands of American students who participated in peaceful demonstrations and encampments meant to assert the humanity of Palestinians—those students also exhibited an admirable civic fortitude, a willingness to pay a personal price for the defense of human rights.
One of the people who testified in the case I mentioned earlier—the case in which the AAUP and MESA are challenging the arrests of student protesters—is a guy called Bernard Nickel. He had come to the United States as a student from Germany three decades earlier, and then stayed on to teach philosophy, first at Tufts and then at Harvard. When the trial began, he’d just completed a three-year term as chair of Harvard’s philosophy department. Professor Nickel is a green card holder, not a U.S. citizen, but until very recently he felt that he and his family were secure in the United States, and he didn’t hesitate to speak out publicly on controversial political issues. He assumed that the First Amendment protected him. The arrests of foreign students in the spring of 2024 made him suddenly aware of his own vulnerability. Watching the video of masked ICE agents arresting Rumeysa Ozturk, the Tufts student, was a particular shock. He testified at trial that he decided, after he saw that video, that he would “keep my head down completely. I would not go to protests. I would not write, I would not sign on to public letters, and any other potential forms of publicity I would just avoid.”
On cross-examination, a government lawyer asked Professor Nickel why, if he was really so afraid of government retaliation, he’d agreed to testify in a case which ICE was a defendant. If he’d resolved not to sign on to public letters and engage in public advocacy, why was he here in court testifying against the government? This is what he said in response:
You know, anybody can sign on to an open letter. Anybody can go to a protest. My sense was that, in this trial, somebody in my specific situation, somebody who is a senior scholar with a secure position at Harvard . . . , I don’t know that there are that many people who could have done this. So I thought this is something that’s worth it. . . . This is . . . where I live, and I want this to be a country and a nation of laws, not of men. . . . I believe in these kinds of processes and procedures. . . . [T]his is me doing my part.
Other faculty, from universities around the country, offered similar testimony. They were fearful that their participation in the lawsuit would provoke government retaliation, but they participated nonetheless out of a sense of obligation—to their American families and friends, their students, and to the democracy they had made their own. They did their part.
If the United States is going to return from the brink of this abyss, it will be because ordinary people—citizens and non-citizens alike—still care deeply about their democracy even if so many elites have shown themselves unprepared to defend it.
