In a thrillingly delightful surprise—and that’s understating it—to many of us who’ve been working in universities for much of our adult lives, Harvard chose not to accede to the Trump Administration’s threats to its federal funding and announced on Monday that the university “will not surrender its independence or relinquish its constitutional rights.” The development was a stunning break from the submission to government coercion that, in recent decades, I’d come to expect.
When I was a law student at Harvard, during the Clinton and Bush Administrations, “don’t ask, don’t tell” was the U.S. military’s policy on gay service members. Many students wanted the school to protest by ending military recruitment on campus, but a federal law conditioned the receipt of funding on military access. Jeopardizing the university’s federal funding was a non-starter. Several years later, when I was a professor, the then dean, Elena Kagan, sent anguished yearly e-mails to the Harvard Law School community expressing support for gay equality but explaining that the school could not refuse the government and endanger funding on which the university depended.
Later, during the Obama Administration, the Department of Education’s Office for Civil Rights published a list of colleges and universities that it was investigating for allegedly inadequate responses to sexual assault. Harvard was on the list. Obama’s O.C.R. had said, in nonbinding guidance documents, that schools should adopt certain procedures for adjudicating campus sexual-assault complaints, including lowering the standard of proof to “more likely than not.” These preferences were not law, but the Administration treated them as if they were, saying that schools violating them were also violating Title IX, a statute that prohibits sex discrimination in educational institutions receiving federal funds. Some law professors, myself included, objected to the new procedures as unfair, and hoped that universities would legally challenge the government. But, amid the investigations, O.C.R. threatened the schools’ federal funding, putting them under intense pressure to reach a settlement rather than be found in noncompliance. As documented in an article I co-authored in 2016, we saw, instead of lawsuits, a series of “resolution agreements,” in which, one by one, universities agreed to do what the government demanded, regardless of whether the law required it.
Federal civil-rights enforcement is now in the hands of Donald Trump, whose Administration insists that universities are in flagrant violation. Laws that were enacted to end certain forms of discrimination are serving as weapons in the government’s war on higher education, as past efforts to protect constitutional rights—freedom of expression, diversity and equity initiatives, and protections for trans people—are themselves cast as forms of discrimination. Comply with its demands, the Administration has told dozens of leading universities, or face the loss of hundreds of millions of dollars—in Harvard’s case, billions of dollars. Universities, which are defined by academic independence yet depend on government support, are extremely vulnerable to government bullying. Harvard’s decision suggests that some, at least, have a limit to how far they’re willing to be pushed.
Two key civil-rights statutes—Title VI and Title IX—govern universities. Title VI, which bars discrimination “on the ground of race, color, or national origin” by entities that receive federal financial assistance, has become a newly favored tool for exercising control over freedom of speech and expression in schools, by pairing it with allegations of antisemitism. The statute, passed in 1964, does not mention religion, and its legislative history suggests that Congress considered including religion and decided not to. But, since the Bush Administration, the executive branch has said that the statute covers discrimination against Jews, on the theory that antisemitism involves not only religion but also “shared ancestry or ethnic characteristics.” (Some, though not all, federal district courts have deferred to this interpretation, but the Supreme Court and appellate courts have not decided whether it is correct.)
The First Amendment protects speech we might hate, including racist, sexist, and antisemitic language. That is a cost of free expression in a free country. Consistent with that principle, Trump, in his first term, issued an executive order instructing agencies to insure that universities receiving federal grants “promote free inquiry” consistent with the First Amendment. But there is apparently an exception to the Trump Administration’s commitment to free speech: a broad category of ideas and expression that it has classified as antisemitic. A month before the 2024 Presidential election, on the anniversary of October 7th, the Heritage Foundation, which produced Project 2025, published Project Esther, “a blueprint to counter antisemitism,” to be deployed “when a willing Administration occupies the White House.” As my Harvard colleagues Jesse Hoffnung-Garskof and Daphna Renan explained last month, in The Chronicle of Higher Education, Project Esther aims to render pro-Palestinian ideas, expression, and activity unacceptable, by convincing the public that they are equivalent to support for terrorism by Hamas. The document is explicit about the project’s goals: to make Jews feel that such expression is “a threat to their safety,” similar to how, when “most Americans hear ‘Klan,’ they immediately associate this homegrown American hate group with ‘bad.’ ”
Upon taking office in January, Trump issued an executive order vowing to use all available legal tools “to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.” The order instructed the Secretaries of State, Education, and Homeland Security to find ways of “familiarizing” schools with the Immigration and Nationality Act, which makes any non-citizen who “endorses or espouses terrorist activity” ineligible for admission to the United States. Within days, the Administration launched Title VI investigations into several schools, including Harvard Medical School. The Department of Health and Human Services sent a letter pointing to a New York Post article about medical students wearing kaffiyehs and Palestinian flags at this past spring’s commencement. Wearing such garb as a form of peaceful protest is constitutionally protected free speech. But the Administration is pressuring universities to treat even protected speech as creating a hostile environment for Jewish students under Title VI. The pressure is designed to make schools demonstrate compliance not only by severely disciplining pro-Palestinian protesters but also, consistent with the executive order, by reporting them to the federal government. The Administration has revoked hundreds of student visas, and since last month it has arrested and detained for possible deportation several non-citizens who were in the country lawfully when they participated in protests.
Last month, Trump’s O.C.R. sent letters to sixty schools about antisemitism, including nearly all in the Ivy League, warning that their federal funding was at stake. Title VI requires the government to provide a school with notice and a hearing, formally find that a particular program within the school is noncompliant, and send Congress an explanatory report at least thirty days before cutting off any money. The Administration halted at least hundreds of millions of dollars due to Columbia, Princeton, Cornell, and Northwestern each, without doing any of those things, while citing Title VI. If schools were to challenge the faulty rescissions in court, the violation of the statutory procedures alone would make for as straightforward a win on the merits as one could imagine. Leaders of Princeton and of Brown, which the Administration has also targeted for a potential halt in funding, made statements suggesting that they were open to defending their legal rights against the government; Columbia decided not to fight and agreed to most of the Administration’s demands. The Administration is now seeking a multiyear consent decree that would place Columbia under court supervision.
Trump is also using Title IX’s sex-discrimination ban, as a way to press schools to change policies affecting transgender students, interpreting the law to mean that recognizing trans women constitutes discrimination against other female students. One of Trump’s executive orders defined “sex” as “immutable biological classification as either male or female,” and another one directed that funds be cut off from schools that allow trans women to compete in women’s sports. The Administration announced that it was suspending federal contracts worth a hundred and seventy-five million dollars with the University of Pennsylvania, for allowing the student-athlete Lia Thomas to swim on the women’s team three years ago. (Penn’s president vowed to work to “understand and address” the terminations.) This move conveys to universities that, in order to keep their federal contracts, they should, at the least, forbid trans women from competing in accordance with their gender identity.
Bans on racial discrimination have proved useful to Trump’s campaign against D.E.I., as the Administration has lumped together some programs and policies that are legal with others that are not. The Supreme Court, in Students for Fair Admissions v. Harvard, in 2023, declared race-conscious affirmative action in admissions unlawful, under Title VI. In February, O.C.R. issued a letter to the nation’s schools, extending S.F.F.A. to “all other aspects of student, academic, and campus life.” It warned that “treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal,” and condemned D.E.I. programs for “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” This stretches the S.F.F.A. case, but not unrecognizably, and courts would likely accept the interpretation. Efforts to quash ideas, speech, and expression related to diversity, equity, and inclusion, however, are a different matter. In March, the U.S. Attorney Ed Martin sent a letter to Georgetown Law School, saying that it had come to his attention—presumably from a student or faculty member—that the school was continuing to “teach and promote DEI.” Martin deemed this “unacceptable” and stated that his office would not hire from a school that does so. The dean, William Treanor, who is a constitutional scholar, pushed back, writing that the First Amendment “guarantees that the government cannot direct what Georgetown and its faculty teach” and that it is unlawful to refuse to hire its students based on disapproval of the curriculum. “The constitutional violation behind this threat is clear,” he wrote. Universities that depend on federal funds generally do not have the confidence of a Dean Treanor to insist that the government must follow the law. His message was a signal to others that it was possible.
Last month, Harvard received the unsurprising news that the Trump Administration was reviewing nine billion dollars of federal contracts and grants because of the school’s alleged failure to protect Jewish students and its promotion of “divisive ideologies”—that is, diversity and inclusion—“over free inquiry.” (A week earlier, I signed one letter, from hundreds of Harvard faculty, urging the university’s leadership to “legally contest and refuse to comply with unlawful demands that threaten academic freedom,” and another, from more than ninety Harvard Law School faculty, addressed to students, stating that the rule of law is imperilled when the government retaliates against lawyers and seeks “public acts of submission.”) In a letter to the community, Harvard’s president, Alan Garber, initially vowed to “engage with” government officials to combat antisemitism while also “protecting our community and its academic freedom.” His tone was neutral, not defiant. It left open the possibility that Harvard would make a deal to undertake measures that it wanted to implement anyway and hope the Administration would be reasonably appeased. Then, last week, the university announced that it was moving to borrow seven hundred and fifty million dollars from Wall Street, a signal of plans to make do without the federal funds. While waiting on a statement from the school to that effect, last week, the Harvard chapter of the American Association of University Professors (of which I’m a member) filed a lawsuit to challenge the Administration’s “misuse of federal funding and civil rights enforcement authority to undermine academic freedom and free speech.”
Perhaps the Administration became impatient with the university and, as a result, overplayed its hand. Late on Friday night (coincidentally or not, as Jews were preparing to begin observance of Passover), it sent Harvard a letter that dispelled any illusion that the attempted coercion was for the purpose of combatting antisemitism and enforcing federal civil-rights law. Among other demands, the letter told Harvard to disempower faculty and administrators who are “more committed to activism than scholarship,” subject all hiring and admissions to a “comprehensive audit by the federal government” (at least during the Trump Administration), prevent admission of “students hostile to the American values and institutions,” and report to federal authorities any foreign student “who commits a conduct violation.” The pièce de résistance was a demand that Harvard employ an Administration-approved “external party” to conduct an “audit” of students, faculty, staff, and leadership “for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse.” The letter also mandated that Harvard abolish “ideological litmus tests”; whoever dreamed that up apparently didn’t consider how compliance with an ideological-diversity requirement could be monitored without them.
In light of the needs of Harvard’s scientific and medical-research communities, whose work stands to be gravely harmed by the loss of federal funds, it was reasonable to expect the university not to fight with the government. But the Administration made Harvard an offer it couldn’t not refuse. First, the illegality of the government’s threats was unambiguous: it intended to withdraw grant funds that have already been awarded but not paid, without complying with legal procedures. Furthermore, it was planning to commandeer the university’s academic activities and governance—which, in addition to causing immediate damage to academic freedom, would establish that civil-rights laws are merely tools for pressing the school into service of the government’s agenda. Harvard’s leadership was surely aware that bending to unlawful demands will not prevent a bullying government from making more of them. If anything, acquiescence would create a further basis to claim that the university is not compliant, which risks even more encroachments on academic freedom. The Administration’s effort to place Columbia under court supervision is a case in point. And the government’s letter to Harvard made clear that it would effectively put the university in receivership.
