Like a lot of its conservative alumni, I’ve a sophisticated relationship with Harvard.
I grew up in a small city in Kentucky, the place I went to public faculty. I attended school at a small Christian college in Nashville. I by no means had a thought that I may attend Harvard Regulation Faculty. However mates urged me to attempt.
After I bought in, it was so surprising that it felt miraculous. I knew it will change my life — and it did. It gave me a few of my closest mates, it gave me profession alternatives I couldn’t beforehand fathom, and it kindled in me a love for constitutional legislation.
On the identical time, the college had profound issues. The coed tradition was remarkably illiberal and contentious. This was the peak of early Nineteen Nineties political correctness, and I used to be generally shouted down by indignant classmates.
In 1993, GQ printed a protracted report from the legislation faculty referred to as “Beirut on the Charles,” and it described a spot that “pitted college members in opposition to college members, college members in opposition to college students” and the place college students have been “waging holy battle on each other.”
The extra issues modified, the extra they stayed the identical. Within the 30 years since my commencement, the college has continued to alter lives, and it has maintained one of many least tolerant cultures in American larger schooling.
For the second 12 months in a row, the Basis for Particular person Rights in Expression (the place I served as president a variety of years in the past) has ranked Harvard last within the nation in its annual free speech rankings. The setting, FIRE decided, was “abysmal.”
In 2023, the Supreme Court held that Harvard had engaged in illegal racial discrimination in admissions. There was overwhelming proof that Harvard discriminated in opposition to Asian American candidates.
As well as, Harvard additionally responded horribly to the unrest that swept campus after the Hamas terror assaults on Oct. 7, 2023. Final summer season, a federal decide appointed by Invoice Clinton described the university’s response to alleged antisemitic incidents as “at greatest, indecisive, vacillating and at instances internally contradictory.”
You would possibly assume that this report of censorship and discrimination would imply that I’d arise and cheer on the Trump administration’s determination to withhold billions of {dollars} in federal funding from Harvard until it made radical modifications in coverage and governance.
However I’m not happy in any respect. The Trump administration has gone too far.
In an April 11 letter, the administration knowledgeable Harvard that it needed to enact a collection of systematic reforms to retain its entry to federal funds. Amongst different issues, it demanded that the college change its admissions and hiring insurance policies to extend viewpoint range and demanded that it display screen worldwide candidates to “forestall admitting college students hostile to the American values and establishments inscribed within the U.S. Structure and Declaration of Independence.”
The administration additionally demanded that Harvard “shutter all range, fairness and inclusion (DEI) packages, places of work, committees, positions and initiatives, beneath no matter identify, and cease all DEI-based insurance policies,” and that it reform its governance, management and disciplinary processes.
The Trump administration can also be reportedly contemplating revoking Harvard’s 501(c)(3) standing, which might imply that donations to the college wouldn’t be tax deductible, maybe dealing the college (as wealthy as it’s) a crippling monetary blow.
On April 21, Harvard fought again. It filed a lawsuit in opposition to the Trump administration, claiming that its calls for violated the Structure, the Administrative Process Act and federal civil rights statutes.
On the core of the criticism is a straightforward thought: It doesn’t matter what you consider Harvard’s conduct, it nonetheless enjoys constitutional rights, and the Structure doesn’t allow the president to unilaterally wield the facility of the purse to punish his political enemies.
To grasp why even critics of Harvard ought to assist Harvard’s lawsuit, maybe an analogy is useful. Think about that there’s robust proof that an individual dedicated against the law. Maybe they shoplifted from a liquor retailer.
After which, months later, you see a police officer beating that particular person on the street. If you ask why, the officer responds that the person stole from a retailer and is getting precisely what he deserves.
Even a nonlawyer may instantly establish two issues. First, why are you punishing this particular person with out a trial? Second, the punishment for shoplifting is a high quality or quick jail time, it’s not a public beating. Demanding that the officer cease his unilateral punishment doesn’t excuse the person’s theft, but it surely does restore respect for the legislation.
If Harvard did fail to guard Jewish college students from harassment, for instance, Title VI of the Civil Rights Act would allow the federal authorities to take motion in opposition to Harvard (and actually the Biden administration opened a civil rights investigation of Harvard in late 2023), however as Harvard’s complaint notes, Congress “set forth detailed procedures that the Authorities ‘shall’ fulfill earlier than revoking federal funding primarily based on discrimination considerations.”
The Trump administration flouted all these procedures.
As well as, as a lot as any particular person would possibly moderately object to the overwhelming leftward tilt of Harvard’s college and pupil physique, Harvard’s ideological composition is a alternative for Harvard to make, not the federal authorities.
Conservatives ought to think about a counterfactual. Ought to the federal authorities be capable of withhold all federal funding from a non-public Christian school (together with, say, tuition {dollars} from the G.I. Invoice or Pell Grants) until it hires extra Muslim college or admits extra atheist college students?
The Trump administration claims to be aiming at antisemites, but it surely’s hitting the harmless. Federal law requires that defunding efforts be focused in opposition to the “explicit program” the place “noncompliance has been so discovered.” However, because the criticism notes, there isn’t any “rational connection between antisemitism considerations and the medical, scientific, technological, and different analysis it has frozen.”
Trump is punishing individuals and departments that had completely nothing to do with any of Harvard’s alleged illegal actions. And by chopping again on important analysis funds, he’s hurting America to punish Harvard.
The arguments I’m making are the identical ones I made repeatedly throughout my authorized profession in dozens of lawsuits in opposition to universities to guard conservative and spiritual college students and professors from progressive censorship and discrimination. That is, because the authorized saying goes, “black letter legislation” — there’s little or no authorized ambiguity right here.
This isn’t a progressive authorized argument. Certainly, should you scan the signature block of Harvard’s lawsuit, it’s a virtual who’s who of conservative attorneys. I acknowledge many of the names, and I personally know a variety of the attorneys.
Harvard’s attorneys embody Robert Hur, the particular counsel who investigated Joe Biden’s retention of categorised paperwork, and famously kicked off a nationwide dialog about Biden’s age and psychological acuity in early 2024 when he described Biden as a “well-meaning, aged man with a poor reminiscence” who possessed “diminished schools in advancing age.”
The attorneys for the lead agency on the case embody a former Antonin Scalia legislation clerk, a former Clarence Thomas legislation clerk and Ted Cruz’s former chief counsel. Harvard’s lawsuit — at its core — isn’t a progressive assault on a Republican president, however quite a constitutionally conservative response to authoritarian abuse.
Harvard’s protection of the Structure doesn’t absolve it of its personal sins, however the protection of the Structure usually comes by imperfect automobiles exactly as a result of shrewd authoritarians usually select unpopular targets.
It’s laborious to rally mass actions to assist unlawful immigrants, giant legislation companies or elite tutorial establishments. “Palms off Harvard” isn’t precisely a slogan that can rally disaffected steelworkers to the Democratic aspect.
American free speech legislation has been outlined when unpopular individuals or unpopular establishments arise in opposition to the censorship of the age — whether or not it is a pair of Jehovah’s Witness sisters who refused to say a Pledge of Allegiance throughout the top of World Conflict II, or college members who refused to sign certifications that they weren’t members of the Communist Social gathering throughout the center of the Chilly Conflict.
Whereas we are able to applaud Harvard’s determination to confront Trump, the college nonetheless wants reform, given its current historical past. Harvard’s stand may not make it the constitutional hero that we wish, however it’s the constitutional hero we want.
