Columbia University agreed to pay more than $200 million to settle allegations of civil rights violations from the Trump administration. It agreed to a long list of changes on campus. But one concession struck some observers as particularly troubling: an outside monitor to assure the school complies.
To critics, the deal represents an unprecedented governmental intrusion into the affairs of a private university that could erode the independence of universities across the country. The White House has said it sees this agreement as a template for other schools that it is investigating for allegations of antisemitism and racial discrimination.
Much of the oversight will relate to diversity, equity and inclusion, as the Trump administration seeks to stamp out any effort by Columbia to increase racial diversity in its student body, faculty or staff. The monitor will also be charged with assuring that university programs do not promote "unlawful DEI goals" -- a term that is not defined.
"I've never heard of anything like this in K-12 or higher education," said Wil Del Pilar, senior vice president of the advocacy group The Education Trust. "The full scope of the monitor's role is not even clear. Will this person be policing what is taught? Who is hired? Who is admitted? This is dangerous."
Under the agreement, Columbia is required to provide the monitor with detailed information about the race of students who are admitted and rejected, including grade point averages and standardized test scores broken down by race. All data related to faculty and administrative staff hiring and promotion practices must be provided to the monitor annually, and hiring data will be subject to a "comprehensive audit."
The monitor is also charged with assuring that the university establishes processes to guarantee "civil discourse, free inquiry, open debate, and the fundamental values of equality and respect." And the monitor will review data to assure Columbia is meting out discipline without regard to a student's immigration status.
"I don't like to see government meddling in higher education with this level of specificity and potential control," said Michael Roth, president of Wesleyan University. Leaders at Columbia "were forced to give up their independence on a range of issues to protect their independence in other areas."
But some outsiders saw advantages for Columbia in securing a third-party monitor. The monitor is like to be more of an honest broker in analyzing Columbia's data than the government would be, said Holden Thorp, editor in chief of Science magazine and a longtime leader in higher education.
"The monitor can certify that Columbia is following the rules and hopefully avoid the Lucy-pulling-the-football that everyone is worried about," he said.
"If I was in Columbia's shoes, I would see an independent monitor being better than a strictly government monitor because it provides, if nothing else, at least a perception of greater objectivity," said Daniel Swinton, partner at TNG Consulting, a risk management firm that works with higher education institutions.
The White House and Columbia defended the agreement.
A senior Trump administration official touted the deal as a way to stop the university from engaging in racial discrimination in hiring, admissions and more. "This type of racial hierarchy is really endemic on college campuses," the official told reporters on a call that mandated anonymity. "This is about showing the public that Columbia is committed to doing the right thing."
Key for Columbia: The agreement specifies that the federal government has no control over the university's employee hiring, admission decisions or academic speech.
"It safeguards our independence, a critical condition for academic excellence and scholarly exploration, work that is vital to the public interest," Claire Shipman, Columbia's acting president, said in a Wednesday statement.
Under the agreement, both sides had to agree on the monitor, and they selected Bart M. Schwartz, 78, a former federal prosecutor who has taken on several high-profile monitoring jobs in the past.
A university official said Columbia officials vetted him first, including by asking a number of people who had worked with him.
A monitor with experience
Schwartz is founder and chairman of Guidepost Solutions, an investigations, compliance and security firm that has backed some Jewish causes. In June, the firm sponsored a cocktail reception for the United Jewish Appeal-Federation of Jewish Philanthropies in New York. A notice on the firm's website said the company "proudly supports the UJA-Federation of New York and its work to help Israel heal and rebuild, confront antisemitism, and combat food insecurity and poverty in New York."
Schwartz did not reply to a request for comment.
He has been lauded for other philanthropic work. This year, he was named a Notable Leader in Philanthropy by Crain's New York Business. Crain's cited his work with the Police Athletic League of New York City. Crain's said he also has paid college test fees for students as a board member of the Stuyvesant High School Alumni Association.
And he has worked as a federal monitor for other sensitive cases. That includes overseeing a 2019 agreement between the Department of Housing and Urban Development and the New York City Housing Authority, which had been accused of mismanagement and dysfunction. The agreement was aimed at improving living conditions for public housing residents.
As his tenure concluded, he told the New York Times that his goal was not to simply fix problems at the housing authority but to help it learn to resolve them.
"A very important element of being a successful monitor is for the entity being monitored to learn how to do it on its own," he told the Times. "If I were to take over and make all the day-to-day decisions, then they'd always be leaning on something and someone. And when you leave, it would go back to the old ways."
Before that, he oversaw a 2015 Justice Department agreement with General Motors related to defective ignition switches and served as receiver, starting in 2009, of two funds related to Bernie Madoff's massive investment Ponzi scheme.
In the mid-1980s, he led the criminal division of the U.S. attorney’s office for the Southern District of New York.
A 'new regulatory state'
Experts in higher education said it was unprecedented to appoint a monitor without due process, arguing that Columbia was wrongly handed a punishment with no charges or findings of wrongdoing or opportunity for the university to respond.
"This is definitely a new regulatory state," said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University's College of Law. "We're moving more towards a central command relationship with the federal government over higher education. Central control of content, curriculum, hiring, conduct, discipline and processes."
Still, there have been other cases of independent oversight of a settlement in higher education.
Monitors are used in consent decrees approved by the courts, aimed at holding institutions accountable. Former senator George Mitchell (D-Maine), for instance, served as the monitor for the consent decree Penn State signed with the NCAA over the university's role in the sexual abuse scandal involving former assistant football coach Jerry Sandusky.
And sometimes oversight comes from the government directly. Agreement between universities and the Education Department's Office for Civil Rights frequently include federal monitoring. Just last year, for instance, Brown University agreed to federal monitoring of its agreement to better handle discrimination and harassment of Jewish and Muslim students on campus.
Still, the scope of the information Columbia agreed to provide opens the door to greater government scrutiny down the line, said attorney Alysha Stein-Manes, a partner at the California firm Liebert Cassidy Whitmore, who represents universities.
"There's certainly a real concern that it will open the door to second-guessing of the university's policies and practices," Stein-Manes said. "The scope of the data that is going to be available ... is going to probably open up a Pandora's box to question Columbia's decisions about admissions and hiring even if they are complying with ... civil rights laws."