Power Line

Students of ancient American history may recall the Northwest Ordinance of 1787. The Northwest Ordinance covered the territory out of which Ohio, Indiana, Illinois, Michigan, and Wisconsin were ultimately carved. It guaranteed religious freedom (Article 1) and prohibited slavery (Article 6) in the territory.

Adopted by the Confederation Congress, it is one of the four founding or organic laws of the United States. See generally Richard H. Cox, Four Pillars of Constitutionalism: The Organic Laws of the United States (1998). In Article 1 it provides: ” No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.”

The very name of Northwestern University in Evanston, Illinois may bring the ordinance to the mind of students of ancient American history. Let us dub Northwestern’s recent contribution to the Kill-the-Jews crowd the Northwestern Ordure. Northwestern’s George C. Dix Professor in Constitutional Law John McGinnis writes at City Journal:

Northwestern University, where I teach, has reached an agreement with Gaza-protesting students to end their encampment. The university agreed to the terms under duress, as the students were breaking Northwestern’s rules and threatening further disorder; their capitulation will incentivize more rule-breaking in the future. The agreement’s substance will further entrench identity, rather than truth, as a foundation of university life. Until universities return to the business of education and reject identity politics, they will be subject to such holdups.

The agreement was prompted by protesters taking over part of Northwestern, setting up about 100 tents, and using bullhorns to amplify chants. The school’s rules now prohibit such structures and amplifications without Northwestern’s permission. Even under First Amendment principles, which Northwestern, as a private university, is not obligated to follow, these are constitutionally reasonable “time, place, and manner” rules. Yet the students ignored the restrictions and failed to disperse.

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Worse than the university’s capitulation may be the substance of the agreement itself. First, Northwestern agreed to admit and provide full scholarships to five Palestinian students. This offer is legally dubious, as Title VI of the 1964 Civil Rights Act prohibits admissions that discriminate based on “national origin.” The university might be relying on how Title VI applies only to people “in the United States,” but the statute is binding once those students set foot stateside; after all, a university surely could not design an admission program for exclusively white foreign students. Northwestern shouldn’t be able to argue, either, that Palestinians’ special hardships warrant making an exception to Title VI. The Supreme Court, in its recent Students for Fair Admissions v. Harvard case ending affirmative action, rejected diversity of experience as a compelling interest justifying discrimination. The same objections can be lodged about the provisions to bring over two Palestinian academics as visiting professors.

Legal or not, this provision reinforces Northwestern’s commitment to identity politics. To be sure, many Palestinians are suffering, but so are others of different nationalities. What about Ukrainians, Uighurs, Haitians, and, in fact, Israelis? Rewarding groups by their identity is exactly what has emboldened constituencies to demand privileges that compromise the school’s institutional neutrality.

In a second provision of the agreement, Northwestern promised to establish a special house for Middle East and North African students. This, again, effectively encourages association by identity, when universities should be prompting students to make connections through shared ideas. It also continues Northwestern’s regrettable (and Orwellian) practice of providing special houses for some groups and not others.

A third portion of the agreement provides that “[t]he University will include students in a process dedicated to implementing broad input on University dining services, including residential and retail vendors on campus.” This will let students demand that vendors be preferred or prohibited based on fleeting political concerns. Making the commissariat subject to commissars is the reductio ad absurdum of Northwestern’s ideological capture….

Michael Schill is Northwestern’s president. Schill has released a statement linking to the text of the Agreement on Deering Meadow. Schill’s release asserts — some translation is required — that the school’s “guiding principles will never waver: protecting the safety of our entire community, preserving free expression and peaceful demonstration, denouncing and refuting intolerance and hate, and ensuring that our University can continue to operate without disruption.” Those “guiding principles” do not withstand a moment’s scrutiny. In this case they cannot even be reconciled with each other.

Following up on the issue of legality raised by Professor McGinnis comes the inevitable lawsuit. The link is to Zach Kessel’s long NRO story also citing two related Title VI complaints. Kessel quotes the complaint in the class action lawsuit: “Rather than conduct the business of the campus in accordance with the clear rules of conduct that everyone signed up for, Northwestern ignored those rules, opting instead to facilitate, encourage, and coddle a dystopic cesspool of hate in the school’s lush green center, Deering Meadow.”

From the Northwest Ordinance to the Northwestern Ordure — what a falling off was there!