Harvard Hits Back

The university followed through with its threat to file suit against the administration for seeking to control its affairs by cutting off billions in funding.

Image courtesy of Sportico

In a much anticipated move, Harvard University struck back against the White House with a federal lawsuit challenging recent actions taken against it. Those included the freezing of billions in federal grants critical to research and science and, following Harvard’s defiance, threats upon its core nonprofit status.

The stakes are national in scope. Harvard is a leading institution for medical science and research. The cuts directly impact ongoing work on cures and treatments for diseases such as Alzheimer’s, Parkinson’s and cancer. A cutoff of federal funds could set this work back by years, inflicting needless suffering on millions who might otherwise have benefited from key medical advances.

The very future of academic freedom in the U.S. is also on the line. The White House has humbled other elite universities such as Columbia, which initially capitulated to the White House’s outrageous demands out of fear it would lose $400 million in federal funding. But the White House has never faced an institution with Harvard’s financial resources. If its suit succeeds, that could put a stop to the administration’s bullying and extortion of other major universities. If it fails, however, expect an emboldened White House to go after even more colleges and universities.

As I’ll discuss below, the White House’s attacks on academic institutions like Harvard is similar to its attacks everywhere: both dangerous and clumsy, vastly overreaching yet ridiculously under-considered. And as I hope you’ll see, there’s a strong reason everything about its assault on academia feels wholly un-American.

They’re not here to protect the Jews

At the heart of the administration’s attacks there’s a cynical lie. The White House claims that it is punishing Harvard for failing to stop antisemitism from spreading on campus during last year’s Gaza protests, and that the punishment should take the form of the loss of all of its federal funding.

Two things here.

First, the idea that the White House is determined to stamp out antisemitism is laughably pretextual. The White House doesn’t care about Jewish students and faculty. Its own officials often espouse Nazi ideology while spreading antisemitic conspiracies about “globalists” like “George Soros.” If it truly wanted to stamp out antisemitism, it should start with repudiating the words and actions of Elon Musk and Steve Bannon.

Second, the White House is using the cloak of “fighting antisemitism” to wedge Harvard’s academic doors open to control by the government. Its letter to Harvard—which it now claims was somehow sent by accident—made outrageous demands upon the university that included handing oversight of its departments over to the administration to ensure they were “diverse.” Harvard was right to—and really had no choice but to—reject such demands and maintain its academic independence.

The White House’s use of a pretext to grant itself enormous, nearly unlimited powers is a common denominator across many of its most audacious power grabs. This has swept up everything from mass deportation to tariffs to DOGE’s full scale assault upon the federal workforce. Its renewed attacks upon elite universities are no different, all under the false guise of “protecting the Jews.”

It’s a ludicrous and noncredible basis, especially when measured against the draconian penalties the White House seeks to exact. And neither the public nor the courts should give it any weight.

Harvard’s claims are strong

Whenever I first hear about a case, I let my legal Spidey senses tingle. Does it feel like the plaintiff has a good claim? That initial sense matters, especially when core American principles are implicated, because it will form the backdrop to the entire case, especially before the court of public opinion.

Here, Trump’s war on Harvard feels like a deep injustice because the government isn’t supposed to be in the business of telling academic institutions what to do, let alone bullying them into giving up control over their own affairs. That sounds like something that happens in dictatorships, where freedom of thought and expression are regularly suppressed, especially in schools and universities.

Moreover, the idea that Harvard should lose all its federal funding—which amounts to billions of dollars—and possibly even its nonprofit status going forward, all because it allegedly failed to provide a safe learning environment for Jewish students, feels completely out of proportion. Even if you assume for argument’s sake that Harvard should have done more to halt antisemitism from spreading on campus, why punish all the lab researchers and scientists with complete loss of their funding? This only makes sense if you assume the Executive should have absolute power over how federal funds should be spent. This itself is a perversion of the Constitution, which assigns that responsibility over public funds to Congress.

Our system, thankfully, protects against both of these excesses.

Harvard’s First Amendment claim

Harvard correctly contends that its First Amendment rights are being violated because the government has no business telling a private university what its curricula should be, who it must hire in its faculty, or who it must admit in its student body. Punishing Harvard and taking control of such decisions is anathema to core principles of free speech and freedom of association.

The university drove this point home in its complaint. It cited Supreme Court precedents that held that the First Amendment does not allow the government to interfere with private actors’ speech to “advance its own vision of ideological balance.” Nor may the government use the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression of disfavored speech.”

In the words of Harvard’s president, Alan M. Garber, “The University will not surrender its independence or relinquish its constitutional rights.” Further, “No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.”

It will be interesting to see how the administration responds to Harvard’s claims of free speech violations, especially if its answer sounds like what its propagandists have been saying publicly. They have argued that federal funds are a privilege, not a right, and that the White House has the authority to withhold them without any court having the right to gainsay it.

“Taxpayer funds are a privilege, and Harvard fails to meet the basic conditions required to access that privilege,” declared one White House spokesman.

That of course isn’t the law, and the government can’t withhold funds because it disagrees with the recipient’s viewpoint or holds some animus towards it. But this has rarely stopped the White House from making such an assertion.

Harvard’s procedural process claims

Harvard has stated repeatedly that it rejects antisemitism and is committed to structural reforms to eradicate it. It noted in its complaint, however, that “rather than engage with Harvard regarding those ongoing efforts, the Government announced a sweeping freeze of funding for medical, scientific, technological, and other research that has nothing at all to do with antisemitism and Title VI compliance.”

Moreover, “Congress in Title VI set forth detailed procedures that the Government ‘shall’ satisfy before revoking federal funding based on discrimination concerns.” It observed that those procedures “effectuate Congress’s desire that ‘termination of or refusal to grant or to continue’ federal financial assistance be a remedy of last resort.” Despite this requirement, Harvard claimed “the Government made no effort to follow those procedures—nor the procedures provided for in Defendants’ own agency regulations—before freezing Harvard’s federal funding.”

“It’s punishment before a trial, punishment before evidence, punishment before an actual accusation that could be responded to,” remarked Ted Mitchell, president of the American Council on Education, to the New York Times.

So let’s talk some specifics about the government’s obligations here. For starters, if the government wants to punish Harvard by stripping it of its funding, it must first still abide by legally required processes to penalize an institution under Title VI. And that it has failed utterly to do.

For example, if the government wants to bring a claim for a civil rights violation, as the Trump White House has stated, it needs to first conduct a thorough investigation of the school. It skipped past this most basic step. In fact, as Harvard’s complaint alleges:

• Defendants did not advise Harvard of any failure to comply with a requirement imposed by [Title VI];

• Defendants did not provide Harvard with any opportunity to comply by voluntary means before freezing federal financial assistance.

• Defendants did not afford Harvard an opportunity for a hearing before freezing federal financial assistance.

• Defendants did not make an express finding on the record after any such hearing before freezing federal financial assistance.

• Defendants did not submit a written report to the appropriate House and Senate committees thirty days before freezing federal financial assistance.

The administration will likely once again become a victim of its own unwillingness to follow some basic rules before making big, drastic changes to policy and funding. In this case, it didn’t even bother to try to walk through the normal steps. It just came in guns blazing.

That fits a familiar pattern. In the quest to destroy its enemies, the administration regularly trammels upon protections that the law has put in place requiring fair hearings and open and transparent processes. These are the hallmarks of a democracy, and this White House thinks that it can ignore them all.

That’s why it’s been losing cases lately by 9-0 and 7-2 votes, even before this Supreme Court. The White House appears oblivious to the danger that its blatant disregard for basic process allows: Even the most conservative judges and justices can now issue technical rulings against it for not following process requirements, thereby sparing them from having to wade into the substance of the claims.

In Harvard’s case, it is likely to win key factual findings that the government didn’t grant Harvard any of the process under Title VI to which it is entitled. Those findings, which will be binding on higher courts, will hurt the administration’s case as it inevitably appeals rulings up the chain.

As I’ve written about earlier, the White House has grown cocky and is now overreaching, even while significantly underthinking and underpreparing. It has now taken on adversaries with vast resources, including China, the ACLU and Harvard University, yet still expects them to bend to its will as smaller foes have.

It is learning the hard way that they will not. As Harvard told its students, faculty and alumni after receiving the Trump White House’s demands,

Today, we stand for the values that have made American higher education a beacon for the world. We stand for the truth that colleges and universities across the country can embrace and honor their legal obligations and best fulfill their essential role in society without improper government intrusion. That is how we achieve academic excellence, safeguard open inquiry and freedom of speech, and conduct pioneering research—and how we advance the boundless exploration that propels our nation and its people into a better future.

Now that’s what I call dropping a veritas bomb.