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Lately, we have found ourselves wanting to hear from legal scholars. We sat down with Michael C. Dorf, a professor of law at Cornell University, frequent Chronicle contributor, and author of many books and a popular legal blog; Cristina Rodríguez, a professor of law at Yale University, former deputy assistant attorney general, and co-author of The President and Immigration Law; and Ilya Shapiro, a senior fellow at the Manhattan Institute and author of Lawless: The Miseducation of America’s Elites. Our conversation has been edited for length and clarity.
Evan Goldstein: We’re 100 days or so into the second Trump administration, a unit of time that is both arbitrary and useful as an invitation to take stock. The story of Trump and higher ed is increasingly a legal story. Let’s start with Harvard University’s lawsuit, which seems to have prompted a sea change in the narrative of Trump versus higher ed. The crux of Harvard’s complaint is that the Trump administration’s actions violate constitutional protections, especially around free speech, as well as violate detailed procedures for adjudicating things like civil-rights violations. Mike, let’s start with you since you wrote a piece we published titled “Harvard Had No Choice.” Why did Harvard have no choice?
Michael Dorf: There are really two reasons why Harvard had no choice. One is that, having witnessed what happened with Columbia, I believe Harvard leadership realized that capitulating wouldn’t bring peace. Columbia acceded to virtually all of the demands that the administration made but did not have its funding restored and indeed was told that that was just the beginning of the process and that there could be more cuts forthcoming. So the first reason Harvard had no choice was there was nothing to be gained by agreeing to the administration’s demands — there would only be more demands.
The second and arguably more-fundamental reason is that the requests or demands made by the administration in the April 11 letter weren’t just “crack down a little bit more on some students’ speech” or “change the name and maybe some of the operations of your DEI offices,” they were demands that would fundamentally make Harvard a fully owned subsidiary of the federal government. The most egregious was the requirement of viewpoint diversity within every department.
Viewpoint diversity is quite laudable. But viewpoint diversity as a requirement from the government is itself a kind of viewpoint discrimination. Moreover, there’s a real worry that what this administration meant by viewpoint diversity would undercut things like independent science. You would have to have various viewpoints on climate change, on the age of the earth, on human evolution, on the efficacy of vaccines. The exercise of independent academic judgment would be compromised.
Cristina Rodríguez: There are two elements to the complaint that are really worth emphasizing. The first is that it lays out the cost of what the government is doing and makes very clear what the harms are — not just to the university’s freedom of speech but to all of its programs and the good that it does through research.
The second is that it lays out in a form intelligible to judges exactly what is legally problematic about what the administration is attempting to do to Harvard. The arguments are very strong. Mike has already alluded to some of the First Amendment arguments. To add to what he said, Harvard is also making a claim that the administration is retaliating against Harvard for taking a position in defense of its mission. That’s another kind of First Amendment claim.
There are also statutory and regulatory constraints. What this complaint stands for is that the government cannot act arbitrarily. The government cannot act based on whim; it has to act according to law and based on reasons. The complaint demonstrates well why it’s doing neither of those two things, both with respect to the constraints that Title VI of the Civil Rights Act imposes on withdrawing funds from people who have allegedly engaged in prohibited discrimination and with respect to the requirements that exist in the many different grants that are being withheld. Those also can’t just be rescinded based on whim. Ultimately, the government has to follow procedures.
Ilya Shapiro: I agree with Michael and Cristina that the process fouls in the complaint are pretty hard to defend. There are statutory ways in which, if the government sees civil-rights violations, it can go about saying, “These are the things we need to see or you’re going to lose your funding.” Those weren’t followed.
And it’s not clear what having a balanced viewpoint in all departments even means. Does it mean an equal number of Republicans and Democrats? It’s not clear.
But for too long, universities have been getting away with violating the civil rights of students and faculty in all sorts of ways, in terms of racial discrimination in admissions and hiring and in terms of antisemitism as well. There was a settlement of most of the lawsuits with Harvard where Harvard did not dispute that students and faculty engaged in mob behavior. As Bill Ackman, the billionaire Harvard donor and activist, put it in an essay, antisemitism is the canary in the coal mine, a signal of lots of other pathologies underneath. Those go to broader civil-rights, free-speech, and academic-freedom violations that the [Trump] administration is fully within its rights to pursue and that need to be fixed if we have any hope of recovering the deservedly lost trust that Harvard and other institutions of higher ed have faced in recent years.
Len Gutkin: Ilya, I want to follow up with a question about antisemitism and discrimination specifically. You yourself were infamously investigated for discriminatory speech when you were a faculty member at Georgetown University. I wrote about how inappropriate I thought that investigation was, as did many others. You’re intimately familiar with the risk that antidiscriminatory mechanisms will punish faculty members for what should be protected speech. Do you worry that what’s happening now under the sign of combating antisemitism will chill speech in ways that you’ve seen happen to you?
Shapiro: Not if it’s properly done. This is not rocket science. I wrote an essay in The Free Press in November of 2023 delineating three buckets that are at issue here. One is nonspeech: assault, vandalism, trespass, harassment. You don’t get a First Amendment or free-speech-policy defense for doing those sorts of things even if you’re motivated by political beliefs. Two is nonprotected speech: incitement of violence. Very high bar. Three is time, place, and manner regulations. If you reserve a room, hecklers can’t shout it down. A protest can’t impede classes or other educational programs. In the real world, there’s an easy correlate: I can’t go to your neighborhood at 2 a.m. and tell you with a megaphone exactly what I think of Donald Trump or Joe Biden, even though that’s core First Amendment speech.
Schools generally have very good policies in place making these delineations. I maintain my self-identification as a big speech advocate. But the issues here that the administration is going after are discrimination in hiring and admissions, in programs, and especially bureaucrats organizing programs and trainings and things that by any stretch violate university duties under Title VI.
Gutkin: Is the Trump administration as concerned as you are with restricting its interventions to those areas? It seems to me that one could argue that things like the attempted deportation of Rumeysa Ozturk, whose only sin was being a co-writer of an opinion piece, which is obviously protected speech, will have a chilling effect on the kinds of speech that you yourself would be interested in protecting.
Shapiro: This is a separate issue, as I see it. The university’s not really involved in that case. It’s not a matter of reforming universities. I would say this is a question of immigration regulation. Foreigners have the same speech rights, generally speaking — they cannot be prosecuted, fined, imprisoned for speech. But there are immigration regulations, and there are rules about who qualifies for a visa. The same things that would disqualify you from getting a visa in the first place make your visa revocable when you’re in the country. Some of those are speech-related, some are not.
I have so-called lived experience with this. I’ve had student visas and a green card and a working visa; I finally naturalized 11 years ago, but at different stages I had to certify that I’m not a Communist, I’m not a Nazi, I don’t support the violent overthrow of the U.S. government. So there could be speech that makes you deportable. If someone gives a speech that says, “I support the violent overthrow of the U.S. government,” that makes them deportable — and I think rightly so.
Rodríguez: I would disentangle at least three sets of issues that are relevant here. The first is that citizens and noncitizens alike have free-speech rights under the First Amendment. The First Amendment says, “Congress shall make no law abridging the freedom of speech”; it doesn’t specify whether that applies only to citizens, and there’s a pretty-ancient case called Bridges v. Wixon that establishes that noncitizens have free-speech rights.
That doesn’t mean that Congress cannot establish as grounds for removal some form of activity that implicates speech, like being a member of the Communist Party. It’s hard to keep those two things in your mind at once: Noncitizens have free-speech rights, but they can also be deported for speech reasons. But deportation has to result from a process. So the mere fact that someone has spoken in a way that may be deemed offensive by a government doesn’t necessarily mean that they’re deportable.
Secondly, even if someone is deportable for speech-based reasons, it’s fair to say that the government here has abused its discretion in going after students clearly in retaliation for their speech. Ozturk is probably the best example of that, because the only evidence that we know of justifying her detention and potential removal is this op-ed that she wrote calling for divestment from Israel.
We can debate about the speech that other people like Mahmoud Khalil have been engaged in, but free speech protects even offensive speech, even speech that might seem dangerous, stopping short of incitement. I think there’s a question of abuse of prosecutorial discretion there. And there’s no question that the administration’s actions have chilled the speech of foreign graduate students. Across the country, they are nervous about what they can and can’t say.
And then the third issue is the specific ground that the administration is citing to remove people like Mahmoud Khalil, Ozturk, and others. That is, if the secretary of state determines that somebody has engaged in activity or is themselves a threat to U.S. foreign policy, then that is a justified ground of removal.
The important aspect of that provision in immigration law is that in 1990, Congress amended that provision to try to protect speech rights, and wrote into the law that if someone is being removed for their speech, then the secretary of state has to make the determination him- or herself and has to have a compelling reason that that speech interferes with U.S. foreign policy. So Congress tried to ratchet up what would have to be shown in order to remove someone on these grounds.
And it’s perhaps ironic that when this ground was litigated in the 1990s, there was a district judge, who happened to be President Trump’s late sister, who found this provision unconstitutionally vague, because who knows what stands in the way of U.S. foreign policy? U.S. foreign policy covers everything under the sun.
What I think is unclear is whether courts will find the provision unconstitutionally vague and whether they will have reason to question the secretary of state’s finding. The latter is unlikely. But it’s possible that some courts will find that this ground of removal is unconstitutionally vague, because no one could possibly conform their conduct to the law because it’s not possible to know what is inconsistent with U.S. foreign policy — not only because sometimes it’s secret but also because it changes. That is ultimately what we will be looking for in litigation.
Shapiro: I largely agree that this provision that leaves so much discretion to the secretary of state makes me nervous. Administrations change, the definition of American foreign policy changes, judges generally defer to the executive branch on questions of foreign policy. I would much rather that these visa revocations be done on the basis of the specific provisions that I alluded to earlier.
Gutkin: We now have two cases where a green-card holder has been targeted for deportation. One is Mahmoud Khalil, who remains in detention; the other is Mohsen Mahdawi, who has been released. Cristina, what do you anticipate happening to these cases?
Rodríguez: I am not sure. It will depend on whether courts are willing to challenge the secretary of state’s conclusions and willing to look at the provisions on which the government is basing their removal and subject them to constitutional scrutiny and find them to be invalid. I don’t know if, in the case of these specific green-card holders, they would have claims for relief. The fact that they are green-card holders makes their interest in remaining in the United States much weightier than someone who is merely on a student visa. You might see courts try to take that into account.
Shapiro: On paper, the legal standards for what makes you removable or disqualified for a visa is not different for a green-card holder. What’s different is that the green-card holder gets more process. That’s why we’re seeing all of these hearings rather than simple administrative orders.
Goldstein: Another scenario Trump has floated — and there’s been some reporting that the head of the IRS is looking into it — is revoking Harvard’s tax-exempt status. Can Trump do that?
Dorf: The key provision is in the Internal Revenue Code. One has to be a charitable organization, which is defined to restrict political activities. The strongest argument that the administration could make for revoking Harvard’s status would rely on the argument that was made in the Bob Jones University case. Bob Jones University had its tax-exempt status revoked because of its policy forbidding its students from engaging in interracial dating. The Supreme Court saw that as against public policy as expressed by Brown v. Board of Education and arguably a violation of Title VI.
What I’ve seen floated in response to my pointing out that it would be otherwise unprecedented to revoke Harvard’s tax-exempt status is the argument that if Harvard is continuing to give racial preferences in admissions and other aspects of its operations, in violation of SFFA v. Harvard, which invalidated affirmative-action programs, then that could be a basis for revoking its tax-exempt status. But as with the other funding issues, there are procedural steps that the IRS would have to go through. That would include judicial review by the courts. You would need to have actual findings, not that Harvard had policies now deemed unlawful before the Supreme Court’s ruling, but that it continues to do so — that it’s evading that ruling.
I don’t see any reason to think that that’s especially true of Harvard. It might be true that some colleges and universities are not fully complying with the SFFA ruling, and there are steps by which the Department of Education and other governmental entities can move them into compliance. But the actual revocation of its tax-exempt status would be a remarkable escalation.
Circling back to the question whether the administration is sincerely going after Harvard for antisemitism on campus: I agree with Ilya that if you read the Harvard task-force report, it does point to many disturbing incidents and practices. But I would say two things. First, as Harvard details in its own complaint about the funding freeze, Harvard has taken fairly substantial steps to change. The way in which the funding power is supposed to be used is to obtain prospective compliance — it’s not supposed to be punitive.
The second thing I would say is that in addition to the report on antisemitism, there was simultaneously a report on anti-Muslim and Islamophobic attitudes at Harvard. One of the interesting findings was that while 15 percent of Jewish students felt unsafe, which is an unacceptably high number, 47 percent of Muslim students felt unsafe. That shows us how this current generation of campus activism is different from what we saw in prior eras. During the Vietnam War, students who were protesting the war weren’t targeting anybody on campus. Maybe some veterans would have felt aggrieved, but there wasn’t a kind of systematic bias perceived by the people on the other side.
In the current era, we have two minority groups, each of whom feels aggrieved by the other’s activism. That puts universities in a very difficult position where protecting one group could mean stifling the speech of another group who are themselves claiming to speak out against oppression.
There are lines that one could draw that I think would be sensible. Explicit support for Hamas, which you have seen from some of the protesters, is a red line. But a lot of the protest doesn’t approach that, and I think universities are in a very difficult position where they’re trying to balance their protection for free speech with protection for everybody. So for the [Trump] administration to just come in and say, You’ve done a bad job on one side of that balance, so we’re going to use a sledgehammer, is totally disproportionate.
Gutkin: I have two follow-up questions. The first is about subjective expressions of safety being used as a heuristic for whether there’s discrimination. When I read that 15 percent of Jewish students or 47 percent of Muslim students feel unsafe, I don’t know what to make of that, because feelings of unsafety have been cultivated both by the activists themselves and by administrators. It seems like a dangerous and imprecise way of evaluating whether there’s discrimination.
Dorf: I certainly wouldn’t say that in a court of law that is proof or even prima facie evidence of discrimination. There is a stereotype, not entirely untrue, of the current generation of college students: Everything makes them feel unsafe. That being said, I think it’s sufficient reason to examine what sorts of activities, speech, etc., might be making people feel unsafe. Subjective self-reports of safety or unsafety are not a sufficient basis for action. They are a sufficient basis for further examination.
Gutkin: My second question: You said explicit support for Hamas could be a red line. But isn’t explicit support for Hamas plainly protected speech, if otherwise in conformity with time, place, and manner rules and so on?
Dorf: Let me back up. In talking about explicit support for Hamas, I had in mind the immigration line that Ilya and Cristina were talking about. Hamas is defined by the United States as a terrorist organization, rightly so. There’s a federal law prohibiting material aid to terrorist organizations. Just speaking out and saying one supports their goals is not material aid, so I agree that that is protected speech. If a U.S. citizen were to get up on a soapbox and say, “I agree with Hamas’s goals. I’m not giving them any money, but I think they’re doing great work” — that would be protected speech.
But Ilya is correct when he points to the higher standard for admission to the United States as a noncitizen. If the government were identifying explicit support for Hamas by students who would otherwise be protected in their speech, that would be a basis for removal, although it would not be, consistent with the First Amendment, the basis for a public university stifling that speech — which is part of what puts the universities in such a difficult position.
Shapiro: I think there’s a false equivalence here: Antisemitism always being paired with Islamophobia is nonsense. You don’t have Jewish or Israeli mobs terrorizing campus, setting up encampments, vandalizing, intimidating and assaulting. You don’t have Jewish or Israeli professors lecturing about the evils of the Arabs or the Palestinians or the Muslims or anything like that. The university bends over backwards to accommodate Muslim, Palestinian, and Arab students, which is why they get in trouble on the antisemitism side. On the other hand, feelings of discomfort by Muslim students may well be completely valid but not due to anything the university is doing. You can’t compare the two things.
But also, these feelings of unsafety, which goes to the safetyism of the bureaucracies, the therapeutic invasion of higher ed, also shows how DEI fails on its own terms. Harvard is not alone in showing these feelings of discomfort, not just for Jews and Muslims but more broadly. There’s an inverse correlation between the size and budgets of DEI offices and students’ feelings of belonging on campus generally or comfort with racial diversity specifically on a nationwide basis. That’s not something for the court of law, but it does show why DEI is such a pernicious institution.
Dorf: There were encampments on campuses with respect to South African apartheid; there were some with respect to the climate crisis. Universities have tolerated them, basically out of the sense that there are some parts of their campus that should be treated like the public square. I agree with Ilya’s general point that the violence has not been even, but it’s not true that Muslim students haven’t been targeted. There was an incident a year ago on UCLA’s campus in which some of the students protesting the Gaza war were attacked by counterprotesters. UCLA police stood by for a while.
I suspect what a lot of the Muslim students who are feeling unsafe mean is that they’re worried about doxxing, which happened at Harvard. They’re worried that the doxxing will lead to third-party violence, not necessarily by Jewish or Israeli students but by anybody. So I wouldn’t so easily dismiss these self-reports.
Rodríguez: There was an instance of doxxing of Muslim or Arab students who were involved in protests at Yale last spring. The question is what obligation does the university have to protect those students and whether the university has performed its custodial role or its obligations under civil-rights laws to protect students from that kind of retaliation.
If we’re applying First Amendment standards to the university environment, then people are expected to tolerate speech they don’t like, even speech they find offensive. U.S. constitutional law famously does not prohibit hate speech. That’s protected by the First Amendment. There are two things that make that complicated for private institutions. The first is that a private university need not apply First Amendment standards in the way that it governs speech on its campus, though many private universities have taken a very clear position that students can’t disrupt the speech of those they don’t like, and students are free to invite speakers regardless of whether they offend others, even in a fundamental or existential kind of way. But there’s still the possibility that the university could take it upon itself to try to create a climate in which there is an insulation from offensive speech. That might take the form of addressing when faculty in particular engage in offensive speech in the classroom in ways that make it hard for students or alienate students from the classroom environment.
The other complicated issue is that there comes a point when hostile speech, offensive speech, if it’s pervasive, could create a hostile environment on the grounds of race or national origin, and present a potential Title VI concern. There’s a place where the First Amendment and the civil-rights laws come into conflict, and it’s very hard to define where that place is and which set of principles should win out. That’s part of what universities are dealing with, if not in a strict legal sense then in a very general ethical sense.
Goldstein: Since we have three legal scholars who have all contributed to the Harvard Law Review, I want to ask about the announcement a few days ago from the Department of Education that they’ve opened an investigation into whether the race of authors was illegally used as a factor in determining which articles were accepted. This comes on the heels of The Washington Free Beacon publishing Harvard Law Review documents that detail internal editorial and staffing deliberations. Cristina, I’ll start with you because you have a cameo in some of those documents.
Rodríguez: I’m a piece of evidence in this potential lawsuit. I wrote the foreword to the Harvard Law Review in 2020. I was invited to do it by the editors of the Harvard Law Review, and I did it. Apparently I’m one of the members of the list of non-male, non-white people from 2018 to 2023 or ’24 who was asked to do it, counter to the historical pattern over the last 15 or 20 years of it being overwhelmingly white men and a few women and a few non-white men sprinkled in there.
The suggestion in some of the reporting is that that is potential evidence. Of what, I’m not sure. Of the Law Review’s efforts to reach out to scholars of different profiles, whether that counts as a violation of civil-rights law, whether it is a form of discrimination against other legal scholars who didn’t get invited to write the foreword or who aren’t having their articles accepted by the Harvard Law Review, I’m not sure. These are untested questions. Since I’m potentially implicated, I’m going to leave myself out of the legal discussion.
Goldstein: A nonlegal question, Cristina: When you saw the documents and your appearance in there, did it make you think any differently about the honor of being asked to write the introduction if your identity played a role in the invitation?
Rodríguez: I’m very proud of the foreword that I produced and I’ve gotten fantastic feedback on it, so I don’t feel any less good about the quality of my scholarship or my stature as a scholar or lawyer in the legal establishment. Does anyone want to hear that they were selected to do something because of a characteristic that they have no control over? No.
Dorf: There are two main legal issues here. The first is whether the Harvard Law Review is part of Harvard University. It’s got its own sources of funding. It’s run, I believe, almost entirely independently. I’d have to know a little bit more about the incorporation documents and what sorts of residual control Harvard as an institution retains over the Law Review. But insofar as the Harvard Law Review is completely separate, then Title VI doesn’t apply to it.
If for relevant purposes it is an entity of Harvard, then I do think SFFA applies to it. What that means in the context of a student publication is uncertain. The threshold question is what is the relationship of the Law Review to Harvard as an institution.
Shapiro: That is an important threshold question. Every law school has at least one journal. Harvard has many; others have many as well. You can lawyer it up in very interesting ways — “We have a separate governing board. We’re funded separately” — but Harvard Law School stands on the prestige of its Law Review and vice versa. It’s hard to see them as institutionally apart.
But take away that very lawyerly technical question and look at the substance. That’s quite damning. They’re not just considering authors’ races when weighing whether to publish a piece but looking at the races of those who they cite, membership of the Law Review — I mean all of these things are very blatantly in violation of federal civil-rights laws. Harvard is not alone. This is a widespread practice that is part of the rot in academia, part of the illiberal takeover of higher ed that the [Trump] administration is rightly targeting.
Rodríguez: It is important to defend the objective of trying to hear from and read and publish scholarship from wide-ranging scholars of different backgrounds. I don’t think that the Supreme Court’s decision in SFFA prohibits universities, federally funded recipients, or state actors from valuing diversity and wanting diversity to be an element of whatever their programs are. That can include ensuring that people read scholarship from people with different backgrounds.
One of the pieces of evidence in the article that sought to expose the policies of the Harvard Law Review is that you have the Harvard Law Review choosing people to write the foreword based on their race — and suddenly you get articles about colonialism and Native American and Indian law, and you get articles about race and the Constitution, as if that were something that we should be concerned about. When in fact the justification for diversity is precisely to bring different perspectives that are necessary to have a full-ranging discussion to the table.
What the Supreme Court is concerned about is whether that is accomplished by means that discriminate against people on the basis of race. That is what both Mike and Ilya are suggesting might have crossed a line in the case of the Harvard Law Review. But having authors cited or published from lots of different backgrounds is something we can still, under existing Supreme Court doctrine, say is a good thing as long as it’s done in a way that’s not discriminatory.
Shapiro: And as long as, according to Harvard Law Review policy, these articles by diverse people still promote DEI values. So to the extent anyone’s thinking about viewpoint diversity, that’s certainly not a consideration. Which, as we talked about at the beginning of this discussion, is not necessarily something that the government should be enforcing. But it’s damning for the state of higher ed nonetheless.
Rodríguez: One of the things that is complicated and frustrating about the anti-DEI executive order and a lot of the discussions about DEI is that that term is never really defined. One could promote diversity, equity, and inclusion values in many different ways. You could promote diversity and take positions that are not part of whatever orthodoxy is being ascribed to the concept of DEI. It’s used as a shorthand that obscures a lot of what’s diverse about the work done and the contributions made by people of different racial backgrounds, and it obscures some of the objectives that any university ought to be pursuing, which is having a diverse population generally, ensuring that students can participate actively in curricula, that they’re exposed to wide-ranging points of view, including points of view that come from the backgrounds that people grow up with, whatever those might be.
Dorf: I’d go even further on one point. There’s that notorious paragraph by Chief Justice John Roberts near the very end of the decision in SFFA v. Harvard where he says, Well, of course we’re not saying that undergraduate admissions at Harvard and the University of North Carolina can’t take account of students’ or prospective students’ experience of race. They just can’t use it as a proxy. And some people look at that and say, What kind of hair-splitting is he engaging in here? It’s an effort to obtain what Justice Lewis Powell was trying to get at in 1978 in his Bakke opinion when he talked about diversity of background as a kind of proxy for viewpoint diversity. What the court in SFFA said is: You can’t use race as a proxy. But you still can look at how background actually contributes to viewpoint diversity. I’m not saying that’s what the Harvard Law Review is doing. But if that is what they’re doing, and doing it in the name of DEI, that’s perfectly legal and something that a majority of a very conservative Supreme Court has quite recently endorsed.
Shapiro: That is either disingenuous or naïve. DEI as enforced means restricting intellectual diversity. It would be great if we lived in a utopia and diversity actually meant diversity. But what it means is this illiberal intersectional matrix based on identities and privilege hierarchies, and that violates the Constitution and civil-rights laws, in addition to being morally repugnant, in my view.
Dorf: I’m going to assume that when Ilya said, “That is either disingenuous or naïve,” he was referring to Chief Justice Roberts and not to me, so I won’t respond to an implicit claim that I too am morally repugnant.
Shapiro: I was referring to you, but I was not referring to you when I was talking about moral repugnance.
Dorf: I’m greatly relieved.
