Or subscribe now to read with unlimited access for as low as $10/month.
A free account provides you access to a limited number of free articles each month, plus newsletters, job postings, salary data, and exclusive store discounts.
It’s a high-stakes moment not just for the institution, but for the sector. The outcome of the suit will be a defining moment in the escalating conflict between the White House and higher education.
The university filed suit in late April, after rejecting a broad list of demands that would have given the government extraordinary oversight of several areas of campus operations. The Trump administration directed Harvard to share all hiring and admissions data with the federal government for audit until 2028, conduct a survey of “viewpoint diversity” for government review, commission an external review of programs “that most fuel antisemitism harassment or reflect ideological capture,” and revise admissions processes to prevent admitting international students who appear hostile “to American values.”
After Harvard turned down the government’s ultimatum, the Trump administration began a parade of regulatory penalties, freezing more than $2 billion in spending that had already been obligated to the university, reviewing the institution’s tax-exempt status, and most recently, investigating whether the law school’s journal discriminates by factoring the race of authors into its review of article submissions.
The ensuing legal battle will take months, at least, and like so many other challenges to the president’s actions, could end up in front of the Supreme Court. But as it plays out in the legal system and the court of public opinion, three key questions loom over the process.
It’s the government’s money. Can’t they take it back from colleges that violate the law?
Yes, they can. But there are rules.
Jane Bambauer, professor of law at the University of Florida, said Harvard’s case is a slam dunk on at least one point: that the Trump administration has not followed the law and regulations in its approach to penalizing Harvard.
Under current law, the administration should have first completed an investigation and offered the institution an opportunity to remedy any violations through a resolution agreement. If the university and government cannot agree on a set of remedies, the next step is an administrative hearing where the university can appeal the government’s findings. After the hearing, the government must send a notice to Congress and give the university 30 days’ notice before cutting any spending.
Instead, the Trump administration’s antisemitism task force sent a list of demands to the university, then immediately froze more than $2 billion in spending when Harvard rejected its requirements.
“Defendants know and are capable of following these mandatory procedural steps,” Harvard notes in its complaint, because on the same day the university received the demands from the antisemitism task force, the Justice Department notified Harvard Medical School that it was opening an investigation of the school’s compliance with Title VI, which prohibits discrimination on the basis of race, color, and national origin. The department’s notification, in this instance, followed the process that the task force appeared to circumvent.
“[I]f we conclude that Harvard University is violating Title VI,” the department wrote to the medical school, “we will inform you and work with you to secure compliance by informal voluntary means.”
The crux of the dispute between the administration and the university is not whether Harvard violated antidiscrimination law. Recently released internal reports acknowledge Harvard’s campus climate was viewed as hostile by many Jewish, Israeli, Muslim, Arab, and Palestinian community members.
Bambauer, of the University of Florida, said in an email that Harvard can acknowledge problems with its campus culture “without making any legal admissions by characterizing its past failures as ones that breach just the school’s standards for fairness and inclusion.”
The real problem, Harvard argues, is that the government’s required remedies are too far-reaching. According to the institution, using those remedies as conditions for renewing billions in funding violates Harvard’s First Amendment rights.
“The Government’s demands on Harvard cut at the core of Harvard’s constitutionally protected academic freedom because they seek to assert governmental control over Harvard’s research, academic programs, community, and governance. And they bear no relation to Harvard’s federal funding,” the university wrote in its complaint.
Several Supreme Court opinions preserve academic freedom at both public and private colleges and prevent the government from exerting pressure on institutions by leveraging the power of the purse.
“Especially for private institutions, a court would have to swim against a legal tide that the current Supreme Court has helped create for the speech and religious rights of private entities,” said Neal Hutchens, a lawyer and also professor of educational policy studies and evaluation at the University of Kentucky.
Hutchens said the 2010 Supreme Court decision in Citizens United v. Federal Election Commission, a test of campaign-finance laws that provided First Amendment protections for political speech by corporations, could also help protect Harvard’s rights to free speech.
“While not an academic-freedom case,” Hutchens wrote, “Citizens United would seem to give strong support that Harvard, as a private corporation, should have strong First Amendment rights.”
And while the government has broad authority over what research it will pay for, said Nadine Strossen, professor of law emerita at New York Law School, that authority is limited to the nature of that research. It cannot use that power to constrain other activities outside of research.
Strossen is deeply familiar with this concept, especially as it was applied in the Supreme Court’s decision in Rust v. Sullivan, a 1991 ruling that allowed the government to prohibit abortion services or counseling by organizations that received federal dollars for family-planning services.
The ruling was something of a loss for Strossen, who at the time was president of the American Civil Liberties Union, which represented some family-planning clinics in the case. But it could bolster Harvard’s case that the government can’t demand the university eliminate or change other activities that are unrelated to the grants it has pulled.
In the majority opinion in Rust, Chief Justice William H. Rehnquist went out of his way to identify the university as “a traditional sphere of free expression so fundamental to the functioning of our society.” Because of that, he said, “the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.”
The biggest question is whether the lawsuit will have an impact on the larger confrontation between the Trump administration and higher education, for instance by encouraging other institutions to battle it out in court.
Barbara Mistick, president of the National Association of Independent Colleges and Universities, said she doesn’t see Harvard’s lawsuit as a path that many others could follow. Every college will have to weigh the risks and costs of a lengthy legal battle, she said, and many will not have the resources or political will for it.
But the case could result in a defining legal standard on the issues of academic freedom and institutional autonomy.
“Harvard’s case could go to the Supreme Court and test these topics,” Mistick said. “In that sense, it does make a difference to the rest of our sector.”
Hutchens, at the University of Kentucky, said there could be downsides to Harvard’s approach. The institution’s legal and public-relations campaign could harden conservative opposition to higher education, for example, and trigger even deeper cuts in research spending.
The administration has already begun cutting the number of grants it issues, and it will almost certainly limit the research topics of future awards to fit the White House’s priorities, Hutchens said, such as focusing on fossil fuels instead of solar energy or other alternative energy sources.
Such a change couldn’t be challenged in court just because various groups think it’s bad policy or not a good research investment, he said.
No matter the outcome of the Harvard case, he said, higher education has to win over the hearts and minds of lawmakers and the public in order to preserve its taxpayer support.
“Some of the big questions over higher education and funding support from the federal government will have to play out in the political process,” he said, “and elections will have consequences for what happens to our colleges and universities moving forward.”
