Samuel R. Bagenstos (University of Michigan Law School) has posted Rethinking the Fund Termination Sanction (76 Case W. Res. L. Rev. ___ (forthcoming 2026)) on SSRN. Here is the abstract:
Title VI of the Civil Rights Act of 1964 and its cognate statutes authorize the federal government to withhold funds from grantees found to have violated them. This fund termination sanction is commonly understood as an incredibly powerful tool to ensure compliance. But it has not worked out that way. Except for a very brief period many decades ago, the federal government had not sought to withhold funds under these statutes.
Until the second Trump Administration. By freezing billions of dollars in grants to major universities and demanding far-reaching concessions, the administration has wielded fund termination as a tool to punish ideological enemies and coerce institutions into abandoning diversity initiatives, restricting campus speech, and adopting administration-favored policies—all in patent violation of both the procedural and substantive requirements Congress imposed on the termination remedy.
This essay argues that the lesson from Trump’s abuse of the fund termination sanction is not that future administrations should use it more aggressively for civil rights enforcement. Rather, the lesson is that the sanction contains a structural imbalance. Because fund termination undermines the very public purposes that federal grants are designed to serve, good-faith administrators who care about those programs will hesitate to invoke it even against proven discriminators. Only administrators hostile or indifferent to those purposes will be willing to use it—and they will use it to serve their own ends rather than civil rights. Congress should eliminate the fund termination sanction and replace it with express public and private rights of action for injunctive and compensatory relief.
Recommended.