In a Normal World, Harvard’s Lawsuit Against Trump Would Be a Slam Dunk

On April 11, after weeks of saber rattling about “recapturing” higher education, Donald Trump’s ruling junta sent a list of demands to Harvard University. Under the guise of “combating antisemitism,” the Trump administration demanded that Harvard take a number of steps including: hiring professors who meet the administration’s own standards for “viewpoint diversity”; admitting a “critical mass” of students who meet those standards of viewpoint diversity; refusing to admit students who are “hostile to American values and institutions” (whatever the hell that means); and, of course, ending “DEI” programs without defining what DEI means or which programs fall under the category. The administration didn’t spell out what counts as “viewpoint diversity” but given the government we’re dealing with, we can be pretty sure that what they mean is “white people” who view bigotry as cool and the earth as flat. 

If these demands seem to you to be entirely disconnected from anything that would combat “antisemitism” on Harvard’s campus, congratulations, you’d be one those people in ancient Troy who said “I dunno, Aeneas, maybe we shouldn’t bring that army-sized horse into our city.”

On April 14, unlike the pathetic appeasement artists at Columbia University, Harvard refused to fall for the trap. The Trump administration responded by freezing $2.2 billion in federal funding owed to Harvard, mostly in the form of federal research grants. On April 21, Harvard sued the administration in federal court in Massachusetts. The university alleges that Trump’s actions are an unconstitutional violation of Harvard’s First Amendment rights.

In a world where laws, constitutional principles, and even court rulings still mattered, Harvard’s lawsuit would be a slam-dunk against the Trump administration. The government ordered Harvard to promote speech the government finds valuable. It literally told Harvard to hire certain kinds of professors, admit certain kinds of students, and deny admission to other kinds of students, based solely on what those professors and students say and how they think. When Harvard refused, the government punished the university, in an attempt to coerce it into saying and doing what the government wanted it to say and do. The government’s coercion and attempted compulsion of the university’s speech is a clear violation of the First Amendment. Harvard should win this case, easily, and only the most unprincipled judicial avatars of the Trump movement (like, perhaps, Supreme Court Justice Sam Alito) will even try to argue otherwise.

What’s critical to understand here is that Harvard violated no laws, and the Trump administration does not even allege that Harvard violated any laws. What the Trump people want you to forget is that we already have a law (a very famous law) that prohibits universities from engaging in discrimination, including antisemitism, when it comes to hiring professors or admitting students. It’s called the 1964 Civil Rights Act. If the Trump administration, or literally anyone else, thought that Harvard was discriminating against Jewish students, prospective students, or faculty, they could sue Harvard.

And we know such lawsuits have teeth. Harvard, along with every other university, was recently forced to end its affirmative action policies, because of a lawsuit filed against it under the Civil Rights Act. If a group of unnamed plaintiffs in Students for Fair Admission v. Harvard could end an entire racial justice program, then surely the Trump administration could address any antisemitism concerns it has under the same statute. Trump’s chief of ghoulishness, Stephen Miller, knows precisely how to corrupt the Civil Rights Act into a protection shield for mediocre whites when he wants to. The fact that the Trump folks have not launched a Civil Rights Act lawsuit against Harvard is proof that these people do not have a case against Harvard for discrimination.

Even if they did, the administration would lose the argument to freeze Harvard’s research funding. That’s because the Civil Rights Act, in the subsection labeled 42 U.S. Code § 2000d-1, states that funding can be withheld only after an institution is told precisely what it is doing that violates the Civil Rights Act—after which the institution must be given a chance to voluntarily comply. Then, if compliance cannot be secured voluntarily, the administration has to provide a full written report to the House and Senate detailing exactly what the perceived civil rights failure is, and how the institution’s attempts at compliance failed.

It is only at that point that funding be withheld, and even then, the funding hold must be restricted to the specific program or initiative that is thought to be in violation of the Civil Rights Act.

The lack of specificity in the funding freeze is what should doom Trump’s actions, even for those who somehow don’t think Harvard is well within its First Amendment rights to hire and admit whomever it wants. The $2.2 billion the Trump administration has frozen goes primarily toward research. Harvard says that Trump’s funding freeze is already preventing the university from continuing its research in areas like cancer, immunology, and biotechnology. It’s also worth noting that Harvard puts a lot of money into military research, including “radiation countermeasures” and “limb regeneration.” I bet Harvard is also researching any number of truly awful “military technologies” that would make the most disgusting MAGA fans say “hell yeah, brother” once they realize how many people Harvard’s researchers help kill, but I don’t want to go on a full Matt Damon in Good Will Hunting rant right now.

To state the obvious, cutting off funding for these research programs has nothing to do with combating antisemitism on campus. It’s a point Harvard makes directly in its lawsuit: “The Government has not—and cannot—identify any rational connection between antisemitism concerns and the medical, scientific, technological, and other research it has frozen that aims to save American lives, foster American success, preserve American security, and maintain America’s position as a global leader in innovation.”

Harvard is absolutely right on its read of the law, but it’s worth asking why the law is written the way it is. Why does the Civil Rights Act—a law written to prevent discrimination—make it so difficult for the federal government to withhold funding from institutions it deems to be in violation of the act?

The answer is simple: the folks who wrote the Civil Rights Act didn’t want to make it easy for liberal presidents to crush racist institutions. Their fear: If the law were to allow someone like Trump to withhold federal funding from a university that admits “too many” foreign students, then a different president could withhold funding from a university that doesn’t admit enough. If Trump could punish a school for having too many “DEI” faculty members, then a different president could punish a school that doesn’t hire enough nonwhite football coaches.

The Civil Rights Act is written to protect institutions from having their funding pulled every time the administration changes parties and redefines what level of racism or bigotry this country should be comfortable with. The law that protects Harvard now is also the law that protects Ole Miss from losing money every time its frat boys decide to menace and harass the descendants of the Black people their great-grandpas owned.

Given all this, I am entirely confident that Harvard will win its case at the district court level. Its case has been assigned to Judge Allison Borroughs, an Obama-appointee who seems to end up with all Harvard-related lawsuits in Massachusetts. She was the judge who upheld Harvard’s admissions policies, before the Supreme Court eventually overruled her and struck down affirmative action.

The Supreme Court overturned her last time because of the Republican justices’ obsession with throttling the rights and opportunities of Black people, but I’m not sure that the court has a similar axe to grind of curing cancer. Supreme Court precedent prevents the government from using funding threats to coerce policy changes to institutions. Just last year, in National Rifle Association v. Vullo, the Supreme Court unanimously ruled that New York State Attorney General Letitia James could not punish, or threaten to investigate, insurance companies that do business with the NRA. The court said James’s move was a violation of the First Amendment. I’m well aware that the Supreme Court loves guns and hates Black people, but still, I have a hard time believing the court will upend established precedent under the Civil Rights Act and the First Amendment just to make sure Harvard can do less cancer research.

Still, that could take a long time. As I’ve said repeatedly in all the cases involving Trump’s illegal and unconstitutional funding freezes: winning in court doesn’t automatically turn the money back on. The Trump administration has now established a pattern: it turns off the money, is ordered by lower courts to turn the money back on, and then simply refuses to follow that court order. Instead, it appeals, while continuing to withhold the funds, and unless the Supreme Court takes the case on its emergency docket, Trump will continue to withhold money indefinitely.

This will create real problems for researchers, and literally slow the rate of American progress in science and health. But Harvard itself will survive this, and, ironically, Trump’s actions will likely just make Harvard stronger.

What Trump is doing now is giving Harvard a chance to burnish its reputation. While the Columbias of the world bow and scrape before him, Harvard is getting an opportunity to define itself as a place of high principle, an institution that “stands up for its values” and “fights for academic freedom.” While lawyers educated at places like Harvard Law School capitulate en masse to Trump’s threats, its professors and faculty get to show that they are not so easily broken. And when this is all over, while other elite institutions try to explain away their complicity with fascism like they’re Vichy France, Harvard will ride around on a moral high ground like Charles de Gaulle.

Trump is trying to bully Harvard with the only thing he has, which is also the only thing he’s ever had: money. But Harvard cannot be bullied by money because Havard has nearly as much money as God. Literally. On the list of the largest endowments in the world, Harvard is functionally tied with Stanford University at number two. Number one is Ensign Peak Advisors, the asset management company for the Church of Jesus Christ of Latter-Day Saints. (The Vatican would be number one on the list, but we don’t traditionally say that the Vatican has an “endowment.”)

The point is, Harvard is one of the only institutions on earth where the loss of $2.2 billion, as much as it hurts, does not represent an existential threat. Because of this, Harvard now gets to shine like an academic and intellectual beacon in a world beset by base bargaining and fear.

Harvard might wind up thanking Donald Trump, one day. He’s breeding an entire generation of future leaders and academics who will want to go to the school.