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.

Transcript

David Myers 0:03

Good and good afternoon, everybody. I'm David Myers, Director of the Luskin Center for Institute Policy. I'm delighted to welcome you to uh this conversation this afternoon, which is part of our ongoing series on the past and futures of higher education in the United States. I'm delighted to welcome our colleague from the UCLA School of Law, Professor Joseph Fishkin, who teaches and researches a wide range of topics, including employment discrimination law, election law, constitutional law, education law, bear housing law, poverty and inequality, and distributive justice. He's the author of two books, The Anti-Oligarchy Constitution, Reconstructing the Economic Foundations of American Democracy, which you wrote with Professor Willie Forbath, and Bottlenecks, a new theory of equal opportunity. So, Joey, welcome to this conversation. Delight to have you. Some of the things you taught, of course, are completely uh irrelevant to today's world, like uh constitutional law, right? Election law. Uh recently, uh there's an announcement that elections should be nationalized. So maybe maybe we'll start there. What do you have to say about that?

Joseph Fishkin 1:13

Luckily, that's not how we are likely to do things here any time. So uh, but it is an interesting moment because uh, as with a lot of things, uh, where in law we say, oh, it's time to go dust off the other side of the old reefs. You know, progressives all around the country are sort of dusting off the old that are those army and conservatives from one funny earlier about. Uh but yeah, it matters a lot. And I think it does make it a lot harder to uh do a lot of damage to electrices at the national level that we know we think that's funny.

David Myers 1:52

Yeah, are those all most relevant because we were talking before about the question that some of your students are asking uh in your condo class? What's the relevance of this if they're not even playing from that playbook anymore? Right. So, I mean, what is the relevance of going back to the old briefs? And is the disregard for the existing structure of precedent, constitutional law, law? Wow, so you really got there in that question.

Joseph Fishkin 2:19

Okay, well, so my uh so I teach constitutional law one, you know, the intro one-out class, and so we talk about this kind of a lot, and I feel like my basic answer to my students is law gets fooled by politics, and it always has. Um, but that doesn't mean that law just is politics with nothing more. The norms in court and in legal arguments, even if you're not in court, uh, like what's a good argument, what sounds ridiculous, what's frivolous, you know, these are different than in politics. And so these two forces that pull on each other, um, but sometimes you can get leverage from law where politics is too slow. Sometimes, you know, it's it's an interaction both ways. So I I'm trying to teach my students like this is a language you need to learn, this is a set of arguments you need to learn to use, but don't expect you know a completely apolitical resolution of questions at the same time. Don't expect you know, there are judges who will violate what I'm about to say, but in general, judges, despite what you know, many political science models suggest, judges don't just vote with the party that they vote with all the time. It depends on how weak or strong the argument is now. Uh, what we sometimes see for the Supreme Court, in particular these days, is a court that could look can squint remarkably hard to find a semi-decent argument for a unlikely proposition law. So, yeah, it's it's a tough time to be able to do that.

David Myers 4:11

Uh in the course of our conversation, we'll sort of get at your sense of the functionality of the legal facilities. Yeah, that's fixed. But let's maybe jump into sort of one of the most important topics that we want to focus on today, which is uh the government's attack on the universities. Um, I'm really curious to hear your assessment of where we are at today and kind of look through your legal length.

Joseph Fishkin 4:34

Yeah. Well, yeah, I mean, it's it's been a remarkably broad attack that I think people who have lived through the first Trump administration did not expect the depth of this time. Uh let's just stay the obvious. But, you know, it seems to me that what happened was the administration and also some allies, some wealthy donors and sort of friends of the administration within certain, you know, alumni communities at some schools in the East Coast or whatever, they had an idea that the power of the federal government's spending, which is a tremendously uh central pillar of supporting higher education in the United States, I suppose for 75 years or so, uh, could be used to leverage broad changes that they wanted at higher ed across a wide range of areas. And you know, the problem is there's not actually legal authority to make that kind of sweeping set of demands that would so they try to tumble different. Why not? Also, why not? Well, you know, there's a number of reasons why not, but the but the biggest is that you have to, well, the biggest two are that you you know the government needs reasons for its actions, can't be arbitrary, and the statutes that authorize various forms of spending um give a list of goals and reasons, and you know, I want a different transgender policy in the med school, isn't one of them. And so, you know, there's kind of a mismatch between the statutory authorities and the demands that it wants to make. And then the second problem is that um there's a First Amendment, which the government is not allowed to, even if otherwise authorized by its factory, the government's not allowed to condition its spending on making demands about what people say and teach and uh things that fall within the uh fraud and the First Amendment, there's a lot of you know, water under the bridge precedent at this point about how broad that is. So I will say, um, and we can get to you know, UCLA down the road in this conversation, but I think the um when I looked at those two lines of legal attack, I thought uh that the procedural sort of you didn't have a good reason if you didn't go through the proper procedures and cutting off grants and all this sort of stuff would be the stronger of the two attacks. But I actually think it's worked out to the First Amendment argument more successful. Anyway, if you talk about all that, I guess the the big picture though is then sort of starting in January, uh the federal government made two different sets of attacks on universities to try and identify changing policies. One was um the biggest was all these grant cancellations. Um and then give up suspensions, which nobody could tell what they were, which were sort of doge-related at the beginning. And then the second line of attack was um we're going to just cut deals with uh different schools under the vague auspices of arguing that it's a violation of Title VI, mostly the hook here was all about claims about anti-Semitism on campus. The oddity of the demands made is that you know, if you just read the settlements that they did reach with Columbia and you know, Brown and so on, um, there's some stuff that's anti-Semitism, but much of it is about you need to hire more conservative faculty and needs to not be not so transgender people, you need to change your admissions, admit fewer international students, don't admit international students who might have ideologies we don't like, you know, there's all like a big list of stuff that is remotely or not at all connected to the supposed topic. Um, and we can talk more about the supposed, you know, the sort of pretext, which was this is all about anti-Semitism, whatever their real views of that issue, they clearly have decided, like, okay, that's a hook on which we can, you know, hang a lot of stuff.

David Myers 8:57

Um, about the legal status of those settlements. Yes. If they you know constitute infringements of the First Amendment, or I mean, can can can they be, I think are they justiciable or are they up for evaluation?

Joseph Fishkin 9:16

I mean, so instead that you know when two parties agree to something in a settlement, usually uh usually courts go along with that. Um now there may be problems when third parties like some of the professors or you know other people who are being constrained by the effects they settlement. But in general, when you're settling a legal claim, you can agree to a lot of things that are beyond what a court would actually order in the case. And that's clearly what's going on here because there's absolutely no way that if the administration actually were to sue Colombia over alleged anti-Semitism related to basically protests on the campus, um, that part of the remedy would be, you know, you have to have more ideological nursing in my faculty. Like that has nothing to do with the topic. So no court would order that, but you could have a settlement that includes it. Now, I think what is interesting to me about how the administration proceeded on this track is clearly their plan was we start at the top. I mean, they really wanted to start with Harvard, which they quickly got to. They thought they had a better title six pretext with Columbia. So they started with Columbia, but they quickly got to Harvard. And they thought, okay, we'll go from there. And then, you know, if the richest and most powerful schools agree, then everybody else will also make a deal, and we can kind of have a cookie cutter settlement agreement across academia and thereby get all these changes that a court would never order. That was the plan. Um, but it ran aground pretty quickly because not only did Harvard drag its feet, um, but many institutions, in fact, all of them, including the ones who they settled with, um, were very slow about it and very like much back and forth. And we have to make a bespoke agreement different for each school. And, you know, Cornell, you know, it has to involve like funding the kinds of technical education, but they kind of do anyways, because it's part of the mission of Cornell. And, you know, everything has to be a little bit unique. And I think what the administration ran into was they didn't have the time and personnel to make those kind of negotiations and agreements with all of the universities in the United States. So instead, they rolled out a compact that's supposed to be a mass agreement, lots of universities at the same time. And they rolled it out and they said, okay, well, here's a bunch of quite prestigious schools, but you know, okay, not harmless, but really prestigious, you know. I mean, if we can just get them to sign on, uh then we can we can roll with this compact idea, and then everyone will want to join, because ostensibly we'll frame it as it's like a carrot, you'll get more federal money if you join this thing. Of course, it was really a stick. It was if you don't join this thing, it'll do the same thing to you that were doing Columbia. But um what I appreciate is that the kind of broadening of the frame, because they didn't want to go one by one because they couldn't, it's too much. Um, the collective attack invited at first something like collective response, where all the universities they invited to join said more or less no. And even, you know, individually. Individually, yeah, they kind of sat together. Some of them were more vociferously no. Some of the statements you had to read really closely to figure out that it was no. Yes, but it was not clear it was no, but it was no. And so once they got no to all of that, I mean it seems to me that that pro that project has basically run aground.

David Myers 12:47

Right.

Joseph Fishkin 12:47

Whereas the whereas the sorry, I'm going off, but I'm just in the the grant cancellation project, which is a different line, but that yeah, that part is only uh stopped because courts have to go.

David Myers 13:01

So we talked about yeah, the settlements, and that's an agreement between two parties that courts would be deferential to. But what about the courts where the action has made its way to the courts? How has that gone?

Joseph Fishkin 13:13

Yeah, so I mean, um most institutions, to the dismay of you know, so their faculty or whatever, have failed to sue because they are um, I think, not wanting to become the target. They've got to become the sort of you know, in the eye of Sauron, as I think be the one school that's the news of the bat that we don't want to get. So most school, I mean Harvard sued, which is important. Uh the UC system didn't, but uh first some UCLA faculty, um, I think partly led by the dean at Berkeley and the law school over Chemiritsky, and then um another suit by uh faculty associations and all the different UCs, you know, and uh the AUP and others uh have found a couple of students that successfully enjoyed uh meaning got court orders to unsuspend the grants, which the government followed and then suspended largely the NIH and NSF grants that are the bulk of the grants. And so that was big. And um, you know, just probe through the UCLA clean we did a lot to unify North and South campus because you know, some medical people might have preferred a just give them what they want, which we're also happy with let's do them and get our grants done that way, that would be fine.

David Myers 14:39

Um, and those who were would have been denied grants represent a very wide ideological spectrum. Yes, yes. On the most talk about an issue of Israel and Palestine. Absolutely, absolutely.

Joseph Fishkin 14:50

And I think, you know, uh yes. And so I mean, how how these lawsuits have gone, the thing that um the sort of most recent development, which is not terrific, was um in uh in December an appeals court uh sort of unwound part of one of the injunctions from the original case that our return scheme was involved in a sort of uh I think it's that Kirby Trump, that one. Um it's a long story. Basically, uh the there's a there's an argument that claims that the proceed that the proper procedures were not followed should be routed to a different court system, the court of claims, which is much less favorable and is kind of a cul-de-sac, uh that would be a big problem, except for the fact that um it seems that some of the First Amendment audience are not running into this problem. So uh this is the thing I was saying to you earlier. I mean, it applies directly to UC that although when I looked at these claims initially about the brand cancellations, I thought, okay, the legally strongest ones here are clearly uh the Administrative Procedure Act. You didn't go through the proper procedures in Cancanus Grants because they didn't go through any procedures. This is a really pretty slide dunk. Um but that claim may be now getting routed in this unfavorable way. And so actually the stronger, more effective claim may be, and I think the reason why so many of the grants at UCLA have not been re-canceled again um is the First Amendment claim that say you know that the government was canceling these grants in an effort to uh punish and you know uh sanction speech that they didn't want. And if that's the um if that's the claim, then you don't have to be stuck in the court of counts. And you can actually see in federal court, which is what uh faculty, if you have sense of any action from the administration, I've successfully.

David Myers 17:07

Yeah, so this is uh a curiosity in the point out of um these uh sort of the legal uh system, uh the what sort of how this is going down in legal terms, because as you pointed out in your long post in the legal blog documentization on August 25th, 2025, the government is not really following any legal procedure. Um they're not putting forward subs subjective legal arguments. So is it the case that if you do mount reasonable legal arguments, you're gonna best the other side because no real presents no real legal argument? Is that one of the takeaways? Well, you're right.

Joseph Fishkin 17:51

One would hope uh that that would be true. And uh it has sometimes been true. I think this this new sort of claims wrinkle is sometimes the government can come up with a certain legal argument that you can't really attack us in federal court, even where there uh there shouldn't be one. But yes, I would say uh sometimes the lack of any serious effort to justify these great legislators has worked a lot in favor of those who don't challenge.

David Myers 18:21

And in your understanding of constitutional legal history, has there ever been such a moment in which the government has repeatedly made claims that seem to be more legal foundation and precedent for America? Uh anything comparable to this moment?

Joseph Fishkin 18:39

That's a very uh generally dangerous question that's influenced. So I'm sure that they're really sorry to uh jump in with you know uh nothing is ever truly unprecedented. But I guess I'll say that in the history of what we're really talking about here, which is the massive federal financial support for higher education, which is a history that thankfully doesn't go back, you know, 250 years, but only whatever, 75 years, the uh the grants have never been treated in quite this way as a kind of um schedule that can be wielded.

David Myers 19:19

And just to understand, there are guiding statutes that regulate how monies should be distributed.

Joseph Fishkin 19:26

Every federal statute that creates any of these grant programs, including the National Science Foundation itself or the National Institutes of Health, lays out how it's supposed to work. Um and so and has goals for what these grants should be about. And of course, there is this overarching um federal law that you cannot spend money in a way that discriminates um on various grounds, including race, and that's that's the hook that you know becomes the way that the administration says they're Title VIP. But you know, with the with the grant cancellations, there wasn't even any pretext of laying out a Title VI complaint. There was just nothing. There was just, you know, some staffers inside this DOGE group saying, you know, we don't know what this is or don't understand it, or we got an order from somebody that all the things to UCLA should be suspended, whatever. And that does not look like the administrative procedure item.

David Myers 20:32

Okay, I want to turn our attention to uh what was the main subject of that one post you wrote in late on, which is UCLA and their tumultuous spring of 2024. Um, and begin by asking what your view of is of what seemed to precipitate uh the initial um effort to withhold funds, which was then followed by the imposition of an initial one billion dollar fine, I suppose, on this BA. Um, and that is the settlement you say reached with three Jewish students. Um, how do you understand that for your settlement? Like, yeah.

Joseph Fishkin 21:11

I mean, look, um one of the things that universities do uh is and if you're in general counsel, you know, one of the things you do is you looked at legal claims that are filed against the university all the timelines. You settle a lot of them. I mean maybe most. And you know, so on the face of it, to me, the thing that was especially problematic wasn't particularly that they've settled the claim, or even that they agreed to pay some money. It was that the university didn't try to defend itself uh in a way that could have at least put down a bit of a factual record that could have helped them in this future lawsuit. And the fact that it seems clear from journalistic report, I've got inside of the university was under the impression. That suing that excuse me that settling the suit would um would buy them some time, you know, literally a peace gesture of settling, you know. And instead, I mean, I don't think it was even like 12 hours that it bought them. The government federal government was just waiting. I think it was two hours. Two hours? Okay, yeah. The federal government was just waiting for the lawsuit, for the settlement of the private lawsuit to, you know, bring their own much larger and more sweeping version of the same claim, which by the way, also sweeps, you know, too much acknowledgement of transgender people or the medical side and you know, all kinds of other things that are not about uh that are not plausibly connected to this particular issue. Look, I um I don't know what was in the mind of the administrators who wanted to settle the claim. Um my guess is that they thought we have a really divided uh campus and alumni community over this issue. It's a mess, it's hurting us. And these three students are saying that they were treated in an anti-Semitic way, and it's better for the university to kind of put that behind us, you know. And of course, they got the opposite.

David Myers 23:22

Yeah, which is what universities do um often settle and then have the ironic, ironic effect of and a trigger.

Joseph Fishkin 23:30

But maybe predictable given the federal government's posture. So that's a that's a problem. But yes.

David Myers 23:36

Okay, well, I want to um drill down to one of the central claims of the students, which was that um at the encampment that was set up um in late April of 2024, um, there was a Jew exclusion zone, as it came to be note. And you had a unique vantage point on that claim because it's you walking your four-year-old miles every day across the campus, right past the encampment. Um and you reported on that at great length in your in your blog post. Uh so uh maybe you can just begin by telling us what did you observe? Sure.

Joseph Fishkin 24:14

I mean, I so the the part of this that that brings in my four-year-old is just the fact that he was uh kind of an enthusiastic early leader and a songs that the protests were had a lot of words on them. He just kind of wanted to read whatever goes there. So yeah, so we walked by. Um, either I or uh my partner would uh walk him home each day. Uh and we saw, you know, a protest. I mean, I don't know quite what to say. There was a there was a fence that had been put up around it by campus security, and there were students inside with a bunch of signs. Um, we didn't go into the you know barrier that had been set up. We just walked around it. And so I have obviously, you know, I just was somebody walking by. I was not in any way kind of deeply involved with this protest. So I don't feel like I can say for you know, sharing from direct personal interpretation much about like what slogans might have been said or something verbal. But what I can say is that what I saw on the signs I saw, uh, which was a lot of speech about Gaza pretty much, and nothing anti-Semitic at all. But what I can really say is since I am Jewish and was walking right through what later in the lawsuit was alleged to be a Jew exclusion zone, uh, and literally I was walking past all the buildings that people may or claim to have been excluded from, um I can say that part was uh not true. So, you know, it's a little bit uh a lot of people have a lot of different impressions of what was happening at this event. And what I found most striking about it, um, reflecting now later than you know, I mean, even that blog post was like a year later, but now even later, I just I think people's impressions of that event were very refracted through uh videos that people posted in the media. And some of those videos were clearly intended to be provocative, like you know, this one particular guy who got a lot of videos saying, like, let me through, I'm just trying to go to the library. And you know, if you if you're someone who really spends time on campus and you really like pause the video and look, you can see this particular guy, if you really want to go to the library, you should turn around and behind you. And the only place you can't go is inside of this fence or inside the encampment, yeah. You can't go in there, and that is true, you know. Um, then he then he probably couldn't go in there because he was obviously a provocateur who was trying to get into some sort of you know back and forth with on that point.

David Myers 27:09

What protection is there for people in such a setting, say that in the encampment, to exclude?

Joseph Fishkin 27:16

Yes, this is a big, a big issue in the um, you know, the political debate and I suppose the legal one um about things like this encampment, which you know, I I almost feel like I'm pretty confident that nothing exactly like this encampment will ever happen again. There'll be some other form of protest that will be controversial in some other massive way. But, you know, I guess just thinking pragmatically, if I were in charge of, you know, campus security, which I should never be, I would generally try, especially if there were protesters and people opposing out the protesting, otherwise trying to disrupt protests, I would keep the most harder. I would put up a fence, you know, uh, or I would otherwise create some kind of barrier uh because I want to protect everybody. So that's more or less, you know, at the bottom of what happened. And did that, and I mean clearly that resulted in there being a certain patch of grass in which uh, you know, with with um the blessing of campus police, we were separating one from beauty from another uh so that they wouldn't all get it to a melee or whatever, which obviously is an effort that catastrophically failed.

David Myers 28:47

So just to be clear, in your observation, your kind of daily passage, um, you saw no covert sign of anti-Semitism, nor obstruction that prevented you from making your way, I guess, going west to east on or getting or getting into the building.

Joseph Fishkin 29:09

Now, you know, this whole thing lasted a week, and at the end, the um security barrier or whatever fence, the campus police expanded it. And then it did pose a, you know, you had to go around further, you'd go around building uh if you wanted to get from one side to the other. But I will say it seemed pretty clear to me, and again, I was not like inside this encampment, I don't know exactly, but it seemed pretty clear from what I could tell that it was no, there were no entrances to any buildings open to people inside the encampment that were not accessible to people from you know, there was no there was no shortcut, shorter walk for people on one side of this than the other. There was a lot of disruption for everybody. Um but yeah, it's um that that part was clear.

David Myers 30:06

Okay, so I want to double back now to the settlement followed by the announcement of Bill Colvin of it was 584 million dollars of research funds, followed by the billion-dollar fine that was tacked on. Um, in light of what you saw um in in your daily task, how did you understand that sequence and what what did it evoke in you when you heard about it?

Joseph Fishkin 30:31

Well, it just seemed as though what was happening was there was a kind of direct line from not so much the actual events, but their portrayal and refraction in viral videos and then news reports that ramp the videos, uh, especially Fox News, but not only. Um, you know, there's a lot of media coverage where if you watch the media coverage of the event rather than being at it, you would have the impression that there was a real situation where um, you know, students who, I mean, if you really thought about it, you would realize it was not so much Jewish students as, you know, students opposed to the protest. Uh, but you know, in the medium refraction, it becomes Jewish students are being excluded from parts of campus. And, you know, I was just driving down Westwood Boulevard yesterday and saw a billboard a group had put up where the slogan was something like um being Jewish on campus should not require campus security. And it was like, just let us keep rehearsing and re-amplifying this particular picture of what happened, which is the Jews, the Jewish students, are first of all being excluded in ways that I can say for direct nomination like order, but you know, that's the allegation. And second, um that uh that this was you know a kind of violent um uh set of attacks while it's Jewish students. It's I mean this is this is where I think I mean things get a little bit difficult for me to say personally. I was not you know there much of the time. I didn't, but I saw quite a bit of you know, people trying to be provocateurs and get into um altercations or at least uh exchanges, hostile exchanges with the protesters. I think those students were not being allowed to go into this academic protest. But a lot of Jewish students, including some of my students, were uh in participating in the protest. And indeed, there's another lawsuit by students, mostly Jewish um faculty as well, who are um saying that UCLA failed to defend them. Uh these are you know pro-Palestinian or whatever Jewish students. Uh so you know it's it's a frustrating um miasma of uh kind of through media lens refracted reality. But anyway, what I saw, you get back to your question, in the lawsuit and settlement was an effort to turn the narrative that um that one side had very successfully advanced in the public sphere to turn that into um a lawsuit in court. And I don't think it would have fared well in court because I think there probably are a lot of people who spent more time around this protest than I did who could testify and say what they observed. And it doesn't much look like the lawsuit. But UCLA did not choose to approach this lawsuit in a sort of defensive, you know, the normal, hostile, defensive posture that a university would because they clearly saw greater risk in that for them and for them with their alumni community and their donors and everybody. They wanted instead to take a very conciliatory approach. So not only did they settle, they you know, allowed a kind of preliminary motion stage. They sort of said, well, we're not going to contest a bunch of these allegations. Um, and that was um, I thought, a real testament to the power of kind of narrative over direct observation and experience. I mean, I think the narratives from the media world were also flowing back into students and faculty here's ownership.

Speaker 34:52

But to come to the narrative of the campus of flame with anti-Semitism. Yes.

Joseph Fishkin 34:56

Yes, that that narrative for some was a very uh powerful reality that they experienced living and working on the campus that, you know, because they don't know, they hadn't met any, they had not personally accounted, but they heard lots of things about how it wasn't safe on campus to be Jewish and they uh felt unsafe as a result. And I think, you know, I mean, I had a conversation with with um uh with someone who I won't name just a few weeks ago who who uh took a very critical view of these protests, who you know is also Jewish, uh like me and also a faculty member at the university, who um who was telling me that this protest lasted months. And I said, Oh, actually, it was just a week. And she said, No, it was you're you know, Johnny, it was months. I said, Well, you know, look at the dates on the news stories and the photos, and you can really like of all the things to have a factual dispute about, that's a ridiculous one. It's clearly it was one week long, but uh, you know, there were there were in camp protests all over the country, you know, they started at Columbia. There were many others, some of them lasted a lot longer than the UCLA one. And her impression was from accounts that she had read and people she trusted, yeah. Her impression was that the one at UCLA had been, quote, allowed to go on for months. Yeah, with the protests we saw already in the fall of 2024. On the cabin in front of Royce Hall, she said for months. So I wasn't gonna dislodge that with you know just saying go look at the dates on the news stories, but I just I think it's emblematic of of the way that these narratives um are kind of like masters of reality sometimes.

David Myers 36:44

Yeah. Well, that leads me to what the last segment of our conversation before we then open up or others, um, um, an opportunity to really zoom out again um and reflect on some of the things you talked about at the beginning of that long blog post, um, which was the reign of absolute falsehoods. Um, and it sort of prompted a new set of reflections about epistemology. How do we know what we know? Um, and what what happens when someone says uh true is false and false is true. Something occurred when, you know, on the basis of your daily observation, it did not. Um, so you know, we've talked about observation. Um, there's always a measure of interpretation uh involved in how we process the world, and then there's sort of what we understand understand to be established facts or proofs that see Mona Cell that very idea is now contested. You argued in the beginning, and it yeah. So I'm wondering where those epistemological reflections about how we know what we know in this moment lead you to think or be concerned about.

Joseph Fishkin 37:56

Yeah. I mean, I I started before I was in law, I was a political theorist, but I didn't study epistemology, I studied, you know, equality and liberty, various of those kinds of and I was just not as focused before the kind of Trump era, and even at the beginning of the Trump era. In fact, I think this is what I opened my blog post with. I know I'm just remembering I started with Sean Spicer at the podium being told to lie and say there was this uh record-breaking crowd at the inauguration, which at the time I was sort of like, well, this is embarrassing, you know, but who cared? I mean, there are no policy implications to this lie. Like it really doesn't matter at all. And it's obviously just like some kind of silly egomaniac thing to want something to lie about for you. But that was not right, you know. I think actually it was a kind of test. Like, do I have a press secretary who is willing to go out and say a plainly false thing and really push that? Because, you know, a certain amount of people will believe what they say. And I think I think that was a wise move by the president who knew that he would be demanding that press secretaries do that uh more down the road. And, you know, I think um one of the uh strange crises of our time is that it turns out that most of us rely on, you know, mediated uh understandings of what's going on to understand almost everything that's going on, and mediated implies media. And so the um collapse of mainstream media and the norms within mainstream media has turned out to be a real epistemological crisis for American politics. And uh it's also a problem in law, and I guess I'll I'll sort of maybe come to a close, I'll sort of close with this. You know, I one of the um most interesting and to me hopeful uh court decisions that I've read in this whole line of cases about um governments fighting uh universities and deporting students and suspending grants and all this was was one uh district judge uh in a lawsuit about the use of immigration enforcement against some uh pro-Palestinian graduate students and uh their speakers. In this lawsuit, the judge said, Well, I am hearing the government make some claims in court, but I am also going to quote all of the things that you, the government, are saying on television, in the creating the narrative that you want to create there, which is the real reason for the actions you're taking is that you want to create a certain narrative that there are extremist elements in the country who need to be deported and all this stuff. And I'm gonna take seriously what you're saying on television, and it sounds to me like you're violating the First Amendment, and so you're enjoying from deporting these students and so on. And so I think there's a way in which uh sometimes courts can act as a last check on kind of um the ability to spin narratives that are far from reality. That's one of the functions of courts. They're good at testing evidence and finding out what's credible. That's the hope. Um, doesn't always work, obviously, but I think in this area, uh, you know, that's that's sort of when courts are uh shining in a different dark time, it's when they are able to uh, through their own internal norms, kind of push things a little bit more in the direction of uh being based on the idea.

David Myers 42:11

I'm should we read from that that you're surprised and buoyed enough by what you have seen to be hopeful that they will continue to hold the line? Or is that a bit too much? Yeah, it's too much. That's a bit too much.

Joseph Fishkin 42:25

I look, I'm uh uh just a hopeful person by constitution, by my own you know, internal compass. And over the past year, I have become hopeful that things might rise to a point that is still way below I thought they would be last year, you know. So there's sort of a uh or the year before. There's there's a certain um you can you can always be hopeful, but uh my expectations are lower than they used to be. I think courts, though, um play an important function, uh, play an important role in even if it's just around the edges, even if it's not holding the line in some dramatic way, but even if it's just providing some check on the ability of government to completely spin falsehoods into reality, um, that could help. And the way it helps is not necessarily because a court order comes in, stops all the bad stuff. It's that it's that the um court can pause our politics to have to listen to the fact that the court has found that something the government said wasn't actually true.

Speaker 43:43

It wasn't accident enough. Joey Fishkin, thanks so much for being in conversation.