Harvard sues the Trump Administration

I am late to the party, so you probably already know about this, but Harvard has refused to truckle to the demands of the Trump administration and has filed a lawsuit (Harvard v. HHS; see below). Briefly, those demands to Harvard were: “shape up or we’ll withhold federal grant money.” You can see the administration’s letter here and can read my summary of what the administration wanted let it withhold $2 billion in grant money:

This is a Big Demand and covers multiple areas, which I’ll just summarize with bullet points. Quotes are from [the administration’s] letter:

• Harvard has to fix its leadership, reducing the power held by students, untenured faculty, and by “administrators more committed to activism than scholarship.”
• All hiring from now on must be based on merit and there will be no hiring based on “race, color, religion, sex, or national origin.”
• By August of this year, Harvard must have solely merit-based admissions, again without admissions based on ‘race, color, national origin, or proxies thereof.” The “proxies” presumably mean the way universities now get around bans on race-based and similar admissions by asking admission questions like, “describe how you overcame hardships in your life.”
• Reform international admissions, by not admitting students “hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence, including students supportive of terrorism or anti-Semitism.”
• Harvard is to commission an external body to audit the university for viewpoint diversity. Though they’re not clear what “viewpoint diversity” means, it’s obvious that they want more conservative points of view and fewer professors pushing pro-Palestinian points of view
• Reforming programs with “egregious records of antisemitism or other bias”, including information about individual faculty who discriminated against Jewish or Israeli students or who incited violence
• Discontinue DEI programs, offices, committees, and the like
• Students are to be disciplined for violating University speech regulations, and student groups that promote violence, illegal harassment, or act as fronts for banned groups
• Harvard is to establish a whistleblowing procedure so that noncompliance with the Diktat above can be safely reported.

President Alan Garber responded by giving the administration the middle finger in a short response.

Yesterday I got an email from Harvard (it’s below but the link works, too) with an announcement by Garber that Harvard is suing the federal government:

It’s a good letter, but note in the third paragraph that the emphasis on why this bullying is bad centers on its medical effects: it will impede research on human diseases, and thus could hurt or kill humans as the withdrawal of funds brings a halt to research (it already has stopped some research).  Well, there’s far more than that at stake, yet the health aspects are what take center stage.

But Presidcent Garber’s announcement does emphasize the government’s attack on Harvard’s values, which include academic freedom in the classroom. Garber is also clearly upset (I am reading between the lines) at the administration’s demand that the university produce more “viewpoint diversity” (see paragraph 5). Further, it’s demeaning to Harvard for the government to demand that an independent body certify the rise viewpoint diversity and to report back to the administration at intervals.

Now certainly many of the changes the administration demands are salubrious (I for one agree that DEI has to be dismantled, which comports with Harvard’s own internal committee of reformist professors, as well as the stipulation merit be the sole criterion for hiring and admissions (my own university has a similar hiring procedure in its Shils Report).  As I’ve said, and others may disagree, I do think that minority status can be taken into account when two candidates are equally qualified, so that is a diluted form of affirmative action. And of course there should be no climate of antisemitism or hatred of any other group on campus, as specified by Title VI.  I do note, though, that Garber says this:

We will also soon release the reports of the Task Force on Combating Antisemitism and Anti-Israeli Bias and the Task Force on Combating Anti-Muslim, Anti-Arab, and Anti-Palestinian Bias. I established these groups last year as part of our efforts to address intolerance in our community. The reports are hard-hitting and painful. They also include recommendations with concrete plans for implementation, which we welcome and embrace. No one in our community should experience bias, intolerance, or bigotry. We believe adoption of the recommendations and other measures will go far toward eradicating those evils on our campus.

Yet according to the Free Press (article archived here), the report on antisemitism hasn’t been published on time, and I have no information about the Islamophobia report. From the FP:

The demand is only the latest controversy for Harvard’s antisemitism task force, a committee that has been plagued by problems throughout its short existence.

Foremost among them: its failure to deliver a report. The task force had originally said they would publish their findings in the “early fall” of 2024, yet the report has still not been released. The report is meant to detail all occurrences of antisemitism at the university.

The committee has been mired in controversy from the moment it was announced in January 2024.

First, Derek J. Penslar’s appointment as co-chair of the task force was met with harsh criticism from the Harvard community over Penslar’s public comments about Israel and antisemitism on campus. Larry Summers, Harvard’s 27th president, wrote that “Penslar has publicly minimized Harvard’s antisemitism problem, rejected the definition used by the U.S. government in recent years of antisemitism as too broad, invoked the need for the concept of settler colonialism in analyzing Israel, referred to Israel as an apartheid state, and more.” Summers added that “none of this in my view is problematic for a professor at Harvard or even for a member of the task force, but for the co-chair of an antisemitism task force that is being paralleled with an Islamophobia task force it seems highly problematic.”

Then, less than a month after Harvard’s antisemitism task force was announced, its co-chair, ​​Raffaella Sadun, resigned, claiming she wanted to “refocus her efforts on her research, teaching, and administrative responsibilities.”

A source close to Sadun told The Free Press that the real reason for her resignation was that “she found it impossible to make any progress” or to get the committee “to take the problem of antisemitism as seriously as she thought it ought to be taken.”

. . . .  [Claudine Gay] ended up forming an Antisemitism Advisory Group and asking Wolpe to join. Summers cautioned Wolpe not to take the position for fear he was “being used,” but Wolpe accepted anyway. Two months later, in December 2023, Wolpe resigned from the advisory group, stating that “both events on campus and [Claudine Gay’s] painfully inadequate testimony reinforced the idea that I cannot make the sort of difference I had hoped.”

Rabbi Wolpe notes that there is indeed endemic antisemitism at Harvard, though former President Larry Summers says that the big drop in Jewish student enrollment at Harvard (now less than 5% compared with 25% in the 1970s) reflects not antisemitism but “an arithmetic consequence of efforts and developments leading to more African American, Hispanic, Asian, and more students from disadvantaged backgrounds.”  Not being at Harvard, I have no opinion on this but will be interested to see the reports of the task forces when they come out.  I do not know, however, of much “Islamophobia” at Harvard save the outing of students who said that October 7’s attack was Israel’s fault.

All that said, it’s reprehensible when the government forces Universities to make changes to comport with their political views by threatening to withhold grant money and impede research. This would give any administration the right to mold universities to its liking simply by withholding federal funds, which come in many forms. But punishing grantholders for the sins of their university seems somehow wrong. Yes, the government does already demand enforcement of some provisions and has made implicit threats (recall the “Dear Colleague” letter of Obama), but what the administration is doing to Harvard is qualitatively different, and far more threatening to the working of American universities.

Greg Mayer has read the lawsuit complaint (below) and gave me permission to add his comments:

As Garber wrote, the complaint is worth reading. It strikes back on two fronts: First Amendment and due process. The latter, I think, is critical, as the wholesale illegality — not unconstitutionality, just facial illegality—of the Trump administration actions is blatant, and I can’t imagine even the most conservative court overlooking it.

To use a criminal justice analogy, constitutional arguments over whether particular forms of capital punishment are permissible might go either way; but you certainly can’t execute someone who hasn’t been convicted of any crime!

I’m not saying that Harvard’s First Amendment argument isn’t strong, just that the due process argument is so compelling that it should put a halt to the rescission of grants without any need to decide constitutional issues until much later. (Courts love deciding on single issues, putting off more difficult questions till another day.)

The change in overhead rates is a different situation– that’s more of a contractual dispute than just plain breaking the law.

The complaint (click on screenshot below to go to it; it’s also here.) The lawsuit is 51 pages long.

There’s also a NYT news article about the lawsuit (archived here). Their short summary of the points at issue: