by Wiatt Hinton*

Since October 7th, 2023, protests and encampments nationwide have forced schools to reconsider their balance between free speech and anti-harassment policies. In response to these protests, the Trump administration cut billions of dollars in federal funding from universities to extract settlements and impose speech policies favorable to the administration. Universities subsequently filed suit to reclaim their funding, bringing claims that, inter alia, the Trump administration violated their First Amendment rights. Instead of fighting these First Amendment claims head-on, the Trump administration delayed the conflict by seeking to shift the venue from federal district courts to the Court of Federal Claims pursuant to the Tucker Act. Although the Supreme Court has adopted a broad interpretation of the Tucker Act in Administrative Procedure Act claims, its reasoning there should not apply to First Amendment claims. This Contribution argues that a proper reading of the Tucker Act strips the CFC of jurisdiction over First Amendment claims because they are not money-mandating and because the CFC lacks the equitable power needed to remedy these violations. With this construction, the Trump administration can no longer escape liability for their suppressive policies and universities can restore their academic freedom.

Universities face an existential crisis over federal funding cuts.1 Under the guise of fighting “antisemitic harassment and discrimination,” the Trump administration has wielded Title VI to restrict free speech on campus, revise curricula, and extract hundreds of millions of dollars in settlements.2 When schools fight back, funding cuts ensue.3 The University of California system and Harvard University have refused to settle and now face losing billions in funding.4 To regain that funding, the schools have brought and prevailed on First Amendment claims, inter alia, in federal district court against the government for “unconstitutional coercion, retaliation, and content and viewpoint discrimination.”5 In response, the government has characterized these First Amendment claims as mere contract claims6 and tried to transfer the cases to the Court of Federal Claims (“CFC”) under the Tucker Act.7 The Trump administration achieves two key goals by transferring to the CFC: delay and escape.8 First, the administration can delay relief while the university and professors struggle to support time sensitive work.9 Second, the Trump administration can escape a preliminary injunction that would release the captive funds and forbid future violations.10 For these reasons, subject matter jurisdiction is central to the fight over federal funding and academic freedom.

In Department of Education v. California, an emergency docket decision, the Supreme Court sharply limited federal district court review of Administrative Procedure Act (“APA”) claims and may have opened the door to transferring First Amendment claims over funding cuts to the CFC.11 While the Trump administration may wish to use California transfer these claims to the CFC, they properly belong in federal district court for the two reasons stated in American Association of University Professors v. Trump12 and President and Fellows of Harvard College v. United States Department of Health and Human Services.13 First, the First Amendment cannot be fairly interpreted as “money-mandating” because it “merely forbids Congress from enacting certain types of laws; it does not provide persons aggrieved by governmental action with an action for damages.”14 Second, the CFC should not have jurisdiction because it lacks the equitable power to remedy the “chilling effects” as the plaintiffs seek to enjoin a policy, not just recover funds.15 While “[t]he resolution of these claims might result in money changing hands . . . what is fundamentally at issue is a bedrock constitutional principle rather than the interpretation of contract terms.”16 Consequently, “[o]nly the district courts can grant the relief that Plaintiffs seek, as the CFC cannot grant injunctive relief.”17

The Tucker Act of 1877 grants the CFC exclusive subject matter jurisdiction over all claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort” exceeding $10,000.18 The CFC handles federal contract disputes, statutory claims arising under laws such as the Affordable Care Act19 and constitutional claims under the Fifth Amendment for “just compensation.”20 To properly assert CFC jurisdiction, the relevant statute or constitutional amendment must “fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.”21 The CFC is limited in its equitable powers and can only grant equitable relief that is both “an ‘incident of and collateral to’ a money judgment’” and “tied and subordinate to a money judgment.”22

In California, the Supreme Court held that the Massachusetts federal district court lacked jurisdiction to hear claims against the Department of Education brought under the Administrative Procedure Act.23 The Court reasoned that the APA claim rightfully belonged in the CFC because:

T]he APA’s limited waiver of immunity does not extend to orders to enforce a contractual obligation to pay money along the lines of what the District Court ordered here. Instead, the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on any express or implied contract with the United States.24

California invites the government to argue that district courts lack jurisdiction over any claim tangentially related to federal funding, even if they also contain core constitutional claims.25 However, California relies on Great-West Life & Annuity Insurance v. Knudson, an Employee Retirement Income Security Act (“ERISA”) case that cannot apply to the universities’ claims.26 In Great-West, the petitioners sought “to impose personal liability on respondents for a contractual obligation to pay money,” which is “quintessentially an action at law,” not equity.27 Universities seeking to restore funding and academic freedom require equitable relief through injunctions, not money damages.28 Thus, the logic of California and the case on which it relied should not be applied to First Amendment cases over Title VI funding cuts because the amendment does not require compensation for injuries.29

This position finds support in United States Court of Appeals for the Federal Circuit which has disclaimed CFC jurisdiction over First Amendment as not money-mandating.30 In United States v. Connolly, the Federal Circuit noted that the “[F]irst [A]mendment neither explicitly nor implicitly obligate[s] the federal government to pay damages . . . . That amendment merely forbids Congress from enacting certain types of laws . . . .”31 Connolly properly groups the First Amendment with other amendments, like the Fourth Amendment, that do not mandate compensation.32 Thus, the First Amendment stands in stark contrast to the money-mandating Fifth Amendment.33

But there are some CFC decision to the contrary that must be confronted. In Swaaley v. United States34 and Jackson v. United States,35 the CFC adjudicated back pay claims for plaintiffs who claimed they were illegally fired in retaliation for exercising their First Amendment rights. In Swaaley, the CFC directly addressed federal employees’ right to petition, holding that petitions to the executive branch hierarchy are protected by the First Amendment unless they meet the actual malice standard set by New York Times v. Sullivan.36 In Jackson, the CFC denied the government’s motion for summary judgment, finding there was a genuine issue of material fact as to whether the plaintiff was discharged in retaliation for exercising his First Amendment right to petition.37 However, the Connolly court correctly recognized Jackson and Swaaley as exceptions to the general rule because those claims were derived from various pay statutes, not the First Amendment.38

Connolly reached the right result, but it’s reasoning leaves room for the Trump administration to argue that an APA claim combined with a First Amendment claim suffices for CFC jurisdiction. If transferred, the universities may restore their funding at the CFC, but always be under threat of another attack on protected speech. In Jackson, the CFC stated that the First Amendment retaliation issue was the true basis of the petitioners’ claim, not other grounds such as the Back Pay statute.39 Thus, other courts applying Connolly could potentially permit the CFC to exercise jurisdiction over non-money-mandating claims, including First Amendment claims, so long as there is still a money-mandating statute involved.40 As it stands, there may be a slim window to argue that the CFC can handle First Amendment claims, even though nothing in the text or interpretation of the amendment mandates that outcome. To avoid this result, courts analyzing the Tucker Act should interpret Connolly to mean that when a First Amendment forward looking remedy is plausibly pleaded, whether or not a money-mandating statute is involved, the claim cannot be properly adjudicated in the CFC.

The next important issue in the question of CFC jurisdiction is the form of relief. The CFC can adjudicate claims for money damages, but they do not have the power to issue equitable relief.41 Even though Title VI was passed under the Spending Clause, universities are not bringing simple contract claims. Rather, they are seeking to restore academic freedom for their professors and students through equitable relief.42 Such an action requires more than specific performance.43 It requires injunctions against the Government from repeating the same conduct in the future––which the CFC does not have authority to issue.44 As a result, California’s expansive reading of the Tucker Act would be inapplicable to Title VI First Amendment claims because it violates the equitable maxim that “[t]he very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”45 In effect, the universities may be able to restore their funding short term, but the administration can hold a Title VI action above their head. With that threat looming, schools will be pressured into tailoring their curriculum and research to fit the government’s preferences.

Contrary to California’s expansive reading of the Tucker Act, the Supreme Court has previously upheld a federal district court’s jurisdiction to order refunds under the APA. In Bowen v. Massachusetts,46 Justice Stevens explained, “[t]he fact that in the present case it is money rather than in-kind benefits that pass from the federal government to the states . . . cannot transform the nature of the relief sought—specific relief, not relief in the form of damages.”47 California improperly points to an expansive reading of the Tucker Act and departs from Bowen’s reasoning because it focuses on the outcome––an order related to money––rather than the form of relief requested.48 California therefore wrongly transferred the claim at issue there to the CFC, and this precedent should not apply to First Amendment claims.

To avoid extending the California decision, the AAUP court seized on the specific sentence where the California majority cited Bowen: “[A] district court’s jurisdiction ‘is not barred by the possibility’ that an order setting aside an agency’s action may result in the disbursement of funds.”49 The AAUP court then, quoting Harvard, wrote, “The resolution of these claims might result in money changing hands, but what is fundamentally at issue is a bedrock constitutional principle rather than the interpretation of contract terms.”50 However, the AAUP court omitted the word “[t]rue” at the beginning of the sentence from California, which may open them up to attack on appeal.51 Read in context, “[t]rue” could caveat that the quotation from Bowen is an exception rather than the general rule. This is another juncture where California’s “under-developed, and very possibly wrong” logic has negatively impacted federal courts by further muddying the waters of CFC jurisdiction.52 The CFC has never had equitable powers to issue the relief requested by the universities and the matter belongs in federal district court.

The Trump administration could argue that a plaintiff’s First Amendment retaliation claim for back pay is sufficiently similar to a university’s First Amendment claim to restore funding to allow for CFC jurisdiction. In both scenarios, an order in favor of the plaintiff would result in the return of improperly held funds under a government contract. AAUP and Connolly provide some guidance for resolving this issue, but no definitive answers. There remains a need for a clear holding that First Amendment claims fall outside of the Tucker Act. Given that the Supreme Court has recently reassessed universal injunctions53 and revamped administrative law by repealing the Chevron doctrine,54 it is hard to say they would not revisit the power of federal courts once again. This Tucker Act issue could be the next in a changing landscape of which cases and controversies belong in Article III courts. Without a definitive ruling on where these cases belong, the Trump administration can transfer any case remotely involving funding to the CFC. While the government plays a never-ending shell game, plaintiffs needing immediate relief or permanent injunction will be at a loss. Thus, Courts of Appeal and the Supreme Court must recognize that First Amendment claims and over university funding cuts belong in federal district courts, not the CFC.

* Wiatt Hinton is a J.D. Candidate (2026) at New York University School of Law. This Contribution is adapted from a larger essay on the interaction between the First Amendment and Title VI written for a Civil Rights seminar.

1. Jeremey W. Peters & Andrea Fuller, How Universities Became So Dependent on the Federal Government, N. Y. Times (Apr. 18, 2025), https://www.nytimes.com/2025/04/18/us/trump-universities.html.

2. Press Release, Dep’t of Educ., U.S. Department of Education’s Office for Civil Rights Sends Letters to 60 Universities Under Investigation for Antisemitic Discrimination and Harassment (Mar. 10, 2025); see, e.g., White House, Fact Sheet: President Donald J. Trump Secures Major Settlement with Brown University (July 30, 2025) (listing that Brown University will “pay $50 million over ten years” and “adopt the definitions of ‘male’ and ‘female’ from President Trump’s Executive Order 14168”).

3. See Am. Ass’n of Univ. Professors v. Trump, No. 25-cv-07864-RFL, 2025 WL 3187762, at *4 (N.D. Cal. 2025) (hereinafter AAUP) (“This ‘Task Force Policy’ proceeds using a three-stage playbook. . . . At stage one, a Task Force Agency announces investigations or planned enforcement actions related to alleged civil rights violations at a school. At stage two, Funding Agencies cancel the school’s federal grants en masse without following Title VI and IX procedural requirements or limiting the scope of the terminations to non-compliant programs. At stage three, DOJ demands the payment of millions or billions of dollars—a penalty that Title VI and IX do not authorize—and requires a wide range of policy changes as a condition for restoring funding and avoiding further funding disruptions.”).

4. Michael Case, Trump administration freezes $2.2 billion in grants to Harvard University over campus activism, PBS News (Apr. 15, 2025), https://www.pbs.org/newshour/education/trump-administration-freezes-2-2-billion-in-grants-to-harvard-university-over-campus-activism; see also Jonathan Wolfe & Michael C. Bender, Trump Administration Is Freezing Over $300 Million for U.C.L.A., N. Y. Times (Aug. 1, 2025), https://www.nytimes.com/2025/08/01/us/politics/trump-cuts-ucla-funding-federal-research.html.

5. Complaint for Declaratory and Injunctive Relief at 92, AAUP, 2025 WL 3187762 (hereinafter Complaint).

6. See Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction and Supporting Memorandum of Points and Authorities at 16, AAUP, 2025 WL 3187762 (“[Plaintiffs’] claims belong in the Court of Federal Claims because contract terminations are the centerpiece of their request for relief.”).

7. 28 U.S.C. § 1491(a)(1). The “Little Tucker Act,” 28 U.S.C. § 1346(a)(2), grants concurrent jurisdiction to federal district courts for such claims under $10,000. See 28 U.S.C. § 1346(a)(2).

8. Reed Shaw, The Trump Administration’s Legal Shell Game, Lawfare (Mar. 4, 2026), https://www.lawfaremedia.org/article/the-trump-administration’s-legal-shell-game.

9. See, e.g., Complaint at 72, AAUP, 2025 WL 3187762 (“As a result of canceled [federal] grants, [Plaintiffs] report having to cease all work on ongoing research projects, which, in turn, has already meant delayed project timelines; missed gating points for scientific research, such as institutional review board meetings; clinical trials and projects halted midstream, resulting in untreated patients and the lost value of already-expended research effort; and the potential for lost human capital as talented and meticulously trained researchers and support staff begin searching for work elsewhere. If these cessations continue, these members expect they or their labs will be forced to take even more harmful steps, such as euthanizing lab animals or permanently dismissing staff.”).

10. Id. at 1 (“The plaintiff coalition seeks declaratory and injunctive relief forbidding the further use of financial threats to coerce the UC to accede to demands that will harm faculty, academic employees, staff employees, and students, in violation of the federal Constitution and duly enacted law.”).

11. Dep’t of Educ. v. California, 604 U.S. 650 (2025) (per curiam) (hereinafter California).

12. AAUP, 2025 WL 3187762.

13. President and Fellows of Harvard Coll. v. United States Dep’t of Health and Hum. Servs., 798 F. Supp. 3d 77 (D. Mass. 2025) (hereinafter Harvard).

14. United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983).

15. AAUP, 2025 WL 3187762, at *11 (“Plaintiffs filed a Motion for Preliminary Injunction . . . . Plaintiffs seek to enjoin the Task Force Policy and Funding Cancellation. They argue that there is irreparable harm to their members, whose speech has been chilled by fear of the effects of the Task Force Policy.”) (emphasis added).

16. Harvard, 798 F. Supp. 3d at 107–08.

17. AAUP, 2025 WL 3187762, at *21.

18. 28 U.S.C. § 1491(a)(1).

19. See, e.g., Sanford Health Plan v. United States, 969 F.3d 1370, 1372 (Fed. Cir. 2020) (upholding Court of Federal Claims decision that Affordable Care Act reimbursement provisions are money-mandating for the purposes of the Tucker Act).

20. U.S. Const. amend. V.

21. Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Fed. Cl. 1967); see also United States v. Testan, 424 U.S. 392 (1976) (adopting the Eastport Steamship standard).

22. James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting 28 U.S.C. § 1491(a) (1994)).

23. California, 604 U.S. at 651; see also Nat’l Insts. of Health v. Am. Pub. Health Ass’n, 606 U.S. ____ (2025) (upholding California as applied to Government’s termination of research grants).

24. California, 604 U.S. at 651 (internal quotations and citations omitted).

25. See Nat’l Insts. of Health, 145 S. Ct. at 2667 (Jackson, J., concurring) (“By today’s order, an evenly divided Court neuters judicial review of grant terminations by sending plaintiffs on a likely futile, multivenue quest for complete relief.”).

26. California, 604 U.S. at 651.

27. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210 (2002) (internal quotations and citations omitted).

28. See AAUP, 2025 WL 3187762, at *11 (“Plaintiffs filed a Motion for Preliminary Injunction . . . . Plaintiffs seek to enjoin the Task Force Policy and Funding Cancellation. They argue that there is irreparable harm to their members, whose speech has been chilled by fear of the effects of the Task Force Policy.”) (emphasis added).

29. See U.S. Const. amend. I. (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).

30. Connolly, 716 F. 2d at 887; see also Cooper v. United States, 771 F. App’x 997, 1000–01 (Fed. Cir. 2019) (“In any event, the constitutional provisions cited by the Coopers are not money-mandating and thus do not provide a cause of action under the Tucker Act.”).

31. Connolly, 716 F.2d at 887.

32. See Brown v. United States, 105 F.3d 621, 623 (Fed. Cir. 1997) (“The Fourth Amendment provides for the security of people ‘in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ U.S. Const. amend. IV. However, the Fourth Amendment does not mandate the payment of money for its violation . . . . Because monetary damages are not available for a Fourth Amendment violation, the Court of Federal Claims does not have jurisdiction over a such a violation.”); see also Patterson v. United States, 218 F. App’x 987, 988 (Fed. Cir. 1997) (Tenth Amendment); Harris v. United States, 686 F. App’x 895, 899 (Fed. Cir. 2017) (Thirteenth Amendment); Fullard v. United States, 78 Fed. Cl. 294, 301 n.12 (Eleventh Amendment).

33. United States v. Causby, 328 U.S. 256, 267 (1946) (“If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the court of Claims to hear and determine.”).

34. Swaaley v. United States, 180 Ct. Cl. 1 (1967).

35. Jackson v. United States, 192 Ct. Cl. 765 (1970).

36. See Swaaley, 180 Ct. Cl. at 12 (“[W]e hold that a petition by a federal employee to one above him in the executive hierarchy is covered by the First Amendment and if it includes defamation of any Federal official, protection is lost only under the circumstances in which a newspaper article would lose such protection if it defamed such official . . . . ‘If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate.’”) (quoting New York Times v. Sullivan, 376 U.S. 254, 273 (1964)).

37. Jackson, 192 Ct. Cl. at 772.

38. Connolly, 716 F.2d at 887.

39. See Jackson, 192 Ct. Cl. at 768 (“While other possible grounds of illegality are not formally waived, plaintiff stresses them so slightly, and urges so little in their support, that we do not discuss them further, and deal with the action, as it practically is, solely to vindicate the First Amendment right. This is a claim ‘founded upon the constitution’ of which we have jurisdiction by virtue of 28 U.S.C. § 1491(1), a jurisdiction we have exercised in a recent backpay suit similar to this one.”) (emphasis added).

40. See Kennedy v. United States, 5 Ct. Cl. 792, 795 (1984) (“[T]he affirmation of Jackson and Swaaley suggests that where a plaintiff can rely on a federal pay statute, the alleged unconstitutional withholding of that pay can result in Claims Court jurisdiction under the Tucker Act.”).

41. See United States v. Testan, 424 U.S. 392, 398 (1976) (“[T]he passage of the Tucker Act in 1887 had not expanded that jurisdiction [of the CFC] to equitable matters.” (quoting United States v. King, 395 U.S. 1, 2–3 (1969))).

42. AAUP, 2025 WL 3187762, at *21.

43. Id.

44. Id. at *21–22 (“Only the district courts can grant the relief that Plaintiffs seek, as the CFC cannot grant injunctive relief.”).

45. Marbury v. Madison, 1 Cranch 137, 163 (1803).

46. Bowen v. Massachusetts, 487 U.S. 879 (1988) (upholding district court order against Secretary of Health and Human Services to release Medicaid funds).

47. Id. at 895 (quoting Md. Dep’t of Hum. Res. v. Dep’t of Health and Hum. Servs., 763 F.2d 1441, 1446 (D.C. Cir. 1985)) (Bork, J.).

48. California, 604 U.S. at 650.

49. AAUP, 2025 WL 3187762, at *21 (quoting California, 604 U.S. at 651).

50. Id. (quoting Harvard, 798 F. Supp. 3d at 107–08).

51. The full sentence reads: “True, a district court’s jurisdiction ‘is not barred by the possibility’ that an order setting aside an agency’s action may result in the disbursement of funds.” See California, 604 U.S. at 651 (2025) (emphasis added) (quoting Bowen, 487 U.S. at 910).

52. California, 604 U.S. at 653 (Kagan, J., dissenting).

53. Trump v. CASA, Inc., 606 U.S. 831 (2025).

54. Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).