In an unexpectedly thrilling development—an understatement for those of us who have dedicated much of our lives to academia—Harvard University boldly decided to resist the Trump Administration’s threats aimed at its federal funding. On Monday, the university declared that it “will not surrender its independence or relinquish its constitutional rights.” This decision marks a striking departure from the trend of compliance with governmental coercion that many have come to expect over recent decades.
During my time as a law student at Harvard, under the Clinton and Bush Administrations, the U.S. military employed the “don’t ask, don’t tell” policy regarding gay service members. Many among us urged the university to cease military recruitment on campus as a form of protest, but a federal law made this impossible, tying federal funding to military access. Risking the university’s federal financing was simply not an option. Several years later, while teaching as a professor, then-dean Elena Kagan would send heartfelt emails yearly to the Harvard Law School community, expressing support for gay equality, yet explaining that refusing the government could jeopardize essential funding.
Fast forward to the Obama Administration, and the Department of Education’s Office for Civil Rights initiated investigations into colleges and universities for allegedly mishandling sexual assault cases. Harvard found itself on that list. The Obama O.C.R. issued nonbinding recommendations encouraging schools to adopt new procedures regarding campus sexual assault, including a lower evidence threshold for complaints. Although these suggestions had no binding legal effect, the administration treated them as if they were mandatory, asserting that schools not adhering to these practices were in violation of Title IX, which prohibits sex discrimination in federally funded educational institutions. Some law professors, myself included, voiced concerns regarding the fairness of these procedures, hoping universities would legally contest the government’s demands. Yet, amidst the investigations, O.C.R. threatened schools with the loss of federal funding, increasing pressure to comply rather than risk noncompliance. As detailed in a paper I co-authored in 2016, we witnessed not lawsuits, but a series of “resolution agreements” where universities conceded to government demands, regardless of legal implications.
The current environment for federal civil rights enforcement rests in the hands of Donald Trump, whose administration claims universities are in gross violation of existing laws. Provisions designed to end certain discrimination forms are now being wielded as instruments in the government’s campaign against higher education, with past endeavors to uphold constitutional rights—like freedom of expression and protections for diversity and equity—now redefined as discriminatory acts. The Administration has told numerous prominent universities to comply with its orders or face significant financial repercussions, which in Harvard’s case amounts to billions. Institutions characterized by academic independence but reliant on government support find themselves highly vulnerable to coercive tactics. Harvard’s recent choice implies that at least some universities have boundaries to the extent they will be pushed.
The governance of universities is primarily overseen by two key civil rights statutes—Title VI and Title IX. Title VI, prohibiting discrimination based on “race, color, or national origin” for entities receiving federal assistance, has recently become a preferred means of asserting control over free speech and expression within educational settings, often linked with allegations of antisemitism. Enacted in 1964, the statute does not address religion, with legislative history indicating that Congress intentionally omitted it. However, since the Bush era, the executive branch has interpreted it to include discrimination against Jews, suggesting that antisemitism encompasses both religious and ethnic characteristics. While some lower federal courts have accepted this reading, the Supreme Court and appellate courts have not definitively ruled on its validity.
The First Amendment safeguards even the speech we find offensive, including racist, sexist, and antisemitic rhetoric. This is the cost of free expression in a democratic society. In accordance with this principle, during his first term, Trump enacted an executive order mandating that agencies ensure universities receiving federal grants “promote free inquiry” in line with First Amendment values. Yet, there appears to be a notable exception to this commitment: a wide array of ideas and expressions classified as antisemitic. Just before the 2024 Presidential election, coinciding with the observance of October 7th, the Heritage Foundation unveiled Project Esther—“a blueprint to counter antisemitism”—to be activated under a supportive administration. As discussed by my Harvard colleagues Jesse Hoffnung-Garskof and Daphna Renan in The Chronicle of Higher Education, Project Esther aims to render pro-Palestinian sentiments unacceptable by persuading the public that these viewpoints equate to support for Hamas terrorism. Its explicit objectives include instilling a sense of threat among Jews regarding such expressions, akin to how the mention of the “Klan” naturally invokes an association with hatred.
Upon assuming office in January, Trump enacted an executive order pledging to utilize every legal avenue to address unlawful antisemitic harassment and violence. This directive instructed the Secretaries of State, Education, and Homeland Security to ensure that schools are familiarized with the Immigration and Nationality Act, which declares that any non-citizen endorsing or advocating terrorism is ineligible for U.S. admission. Shortly thereafter, the Administration initiated Title VI investigations into several institutions, including Harvard Medical School. Following a New York Post report about medical students wearing kaffiyehs and Palestinian flags during the spring commencement, the Department of Health and Human Services sent a letter detailing this alleged misconduct. However, wearing such symbols as a peaceful protest is constitutionally protected speech. The Administration pushes for the classification of even protected expressions as creating a hostile environment for Jewish students under Title VI. This pressure compels universities to discipline pro-Palestinian activists severely, with adherence to the executive order requiring them to report such actions to federal authorities. Moreover, the government has rescinded hundreds of student visas and arrested non-citizens participating in lawful protests, potentially leading to deportation.
Recently, Trump’s O.C.R. dispatched letters to sixty institutions regarding antisemitism concerns, many of which were in the Ivy League, stressing the potential jeopardy to their federal funding. Title VI stipulates that before cutting off any funding, schools must receive notice and an opportunity for a hearing, along with a formal determination of noncompliance conveyed to Congress at least thirty days prior. Yet, the Administration suspended hundreds of millions of dollars to Columbia, Princeton, Cornell, and Northwestern without following these established protocols, citing Title VI. If institutions contest these wrongful funding cuts in court, the procedural violations alone could lead to a straightforward victory. Leaders from Princeton and Brown, both of which have also been targeted with funding threats, indicated their willingness to defend their legal rights against the government; in contrast, Columbia chose not to contest and acceded to most Administration demands. Consequently, the government is now pursuing a multiyear consent decree to place Columbia under court oversight.
Trump is also leveraging Title IX’s prohibition against sex discrimination to influence school policies affecting transgender students, interpreting the law as indicating that the recognition of trans women constitutes discrimination against cisgender female students. One executive order defined “sex” explicitly as “immutable biological classification as either male or female,” while another mandated the cessation of federal funds for schools permitting trans women to participate in women’s sports. Notably, the Administration imposed a halt on federal contracts valued at $175 million with the University of Pennsylvania over the inclusion of student-athlete Lia Thomas in the women’s swimming team three years ago, prompting the president of Penn to commit to “understanding and addressing” the funding terminations. This action sends a clear message to universities: to sustain federal contracts, they must at minimum restrict trans women from competing according to their gender identity.
Efforts against racial discrimination have framed Trump’s assault on diversity, equity, and inclusion (D.E.I.) programs, as the Administration groups together permissible initiatives with those that violate the law. The recent Supreme Court ruling in Students for Fair Admissions v. Harvard deemed race-conscious affirmative action unlawful under Title VI. Subsequently, the O.C.R. issued a letter to schools nationwide, extending the S.F.F.A. verdict to include “all other aspects of student, academic, and campus life.” It admonished that “differentiating treatment based on race to achieve vague objectives like diversity or social justice is illegal” and condemned D.E.I. programs for introducing “racial stereotypes and explicit race-consciousness into everyday training and policies.” While this interpretation stretches the S.F.F.A. ruling, it’s not entirely unprecedented, and courts would likely validate this viewpoint. Nonetheless, attempts to suppress ideas related to diversity, equity, and inclusion present a distinct challenge. In March, U.S. Attorney Ed Martin informed Georgetown Law School that he had learned—presumably from a student or faculty member—that the institution continued to “teach and promote D.E.I.,” labeling this unacceptable and stating his office would refrain from hiring its graduates. In response, Dean William Treanor, a constitutional expert, asserted that the First Amendment “ensures that the government cannot dictate what Georgetown and its faculty teach,” highlighting the illegality of withholding employment based on curricular disapproval. His assertion of constitutional rights against governmental overreach, however, may not resonate among other university leaders who often lack the same confidence to enforce legal principles.
Last month, Harvard received the anticipated notice that the Trump Administration was scrutinizing nine billion dollars worth of federal contracts and grants due to the university’s perceived inadequacies in protecting Jewish students and its endorsement of “divisive ideologies”—i.e., diversity and inclusion—“over free inquiry.” Just a week prior, I participated in signing one of two letters from Harvard faculty urging leadership to “legally challenge and refuse to comply with unlawful requests that jeopardize academic freedom,” along with another from over ninety Harvard Law School faculty to students, outlining the imminent threats posed by governmental retaliation against legal professionals and promoting “public acts of submission.” In a message to the university community, President Alan Garber initially pledged to “engage with” government officials to address antisemitism while also “protecting our community and its academic freedom.” His position was measured rather than defiant, suggesting a willingness to negotiate a deal that could comprise actions the university already intended to pursue, thereby potentially appeasing the Administration. However, just last week, the institution disclosed plans to procure $750 million in loans from Wall Street, indicating a strategy to operate without federal funds. Concurrently, the Harvard chapter of the American Association of University Professors, of which I am a member, filed a lawsuit contesting the Administration’s “abuse of federal funds and civil rights enforcement authority to undermine academic freedom and free speech.”
It’s possible that the Administration, seeking immediate compliance from Harvard, overstepped its bounds. Late Friday night, coinciding with the onset of Passover, the Administration sent Harvard a letter that laid bare the true nature of its coercive tactics, revealing that the purported goal of combating antisemitism and enforcing civil rights laws was a façade. Among other stipulations, the letter demanded Harvard diminish the influence of faculty and administrators “more devoted to activism than scholarship,” subject all hiring and admissions to a “comprehensive audit by the federal government” during the Trump Administration, exclude from admission “students hostile to American values and institutions,” and report any foreign student “who commits a conduct violation” to federal authorities. The culmination of these mandates was a requirement for Harvard to employ an Administration-sanctioned “external party” to conduct an audit evaluating viewpoint diversity among students, faculty, staff, and leadership, with stipulations emphasizing that each department or teaching unit maintain a diverse array of viewpoints. Additionally, the letter insisted on removing all “ideological litmus tests;” the irony being that the very nature of complying with a viewpoint diversity mandate seemingly necessitates the establishment of such tests.
Considering the potential impact on Harvard’s scientific and medical research communities, which could severely suffer from loss of federal support, it was reasonable to expect the university to refrain from confrontations with the government. Nonetheless, the Administration extended a deal that Harvard could not feasibly accept. Legally, the government’s threats were indisputable: it aimed to withdraw awarded grants without following required legal protocols. Beyond this unlawful coercion, the Administration sought to intercept the university’s academic operations and governance processes—which would not only cause immediate harm to academic freedom but also establish a precedent of treating civil rights laws as mere instruments for furthering governmental objectives. Harvard’s leadership likely recognized that yielding to illegal pressures would not deter a government prone to future demands. On the contrary, capitulation would likely embolden further encroachments on academic autonomy, as evidenced by the Administration’s efforts to impose court supervision on Columbia. The contents of the letter to Harvard made it clear that compliance would place the university under a state of receivership.
