Like a lot of its conservative alumni, I’ve an advanced relationship with Harvard.
I grew up in a small city in Kentucky, the place I went to public college. I attended school at a small Christian college in Nashville. I by no means had a thought that I might attend Harvard Legislation College. However mates urged me to strive.
After I acquired in, it was so surprising that it felt miraculous. I knew it could 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 regulation.
On the similar time, the varsity had profound issues. The scholar tradition was remarkably illiberal and contentious. This was the peak of early Nineteen Nineties political correctness, and I used to be typically shouted down by offended classmates.
In 1993, GQ printed a protracted report from the regulation college known as “Beirut on the Charles,” and it described a spot that “pitted college members towards college members, college members towards college students” and the place college students had been “waging holy warfare on each other.”
The extra issues modified, the extra they stayed the identical. Within the 30 years since my commencement, the varsity has continued to vary lives, and it has maintained one of many least tolerant cultures in American greater schooling.
For the second yr in a row, the Basis for Particular person Rights in Expression (the place I served as president quite a lot of years in the past) has ranked Harvard final within the nation in its annual free speech rankings. The atmosphere, FIRE decided, was “abysmal.”
In 2023, the Supreme Court docket held that Harvard had engaged in illegal racial discrimination in admissions. There was overwhelming proof that Harvard discriminated towards 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 time, a federal choose appointed by Invoice Clinton described the college’s response to alleged antisemitic incidents as “at finest, indecisive, vacillating and at occasions internally contradictory.”
You would possibly assume that this file of censorship and discrimination would imply that I’d get up and cheer on the Trump administration’s choice 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 sequence of systematic reforms to retain its entry to federal funds. Amongst different issues, it demanded that the varsity change its admissions and hiring insurance policies to extend viewpoint variety and demanded that it display 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 variety, fairness and inclusion (DEI) packages, workplaces, committees, positions and initiatives, underneath no matter identify, and cease all DEI-based insurance policies,” and that it reform its governance, management and disciplinary processes.
The Trump administration can be reportedly contemplating revoking Harvard’s 501(c)(3) standing, which might imply that donations to the varsity 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 towards 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 an easy 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 ability of the purse to punish his political enemies.
To know why even critics of Harvard ought to help 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. While you ask why, the officer responds that the person stole from a retailer and is getting precisely what he deserves.
Even a nonlawyer might instantly determine two issues. First, why are you punishing this particular person with out a trial? Second, the punishment for shoplifting is a positive 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 regulation.
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 towards Harvard (and in reality the Biden administration opened a civil rights investigation of Harvard in late 2023), however as Harvard’s criticism notes, Congress “set forth detailed procedures that the Authorities ‘shall’ fulfill earlier than revoking federal funding based mostly on discrimination issues.”
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 scholar physique, Harvard’s ideological composition is a selection for Harvard to make, not the federal authorities.
Conservatives ought to take into account a counterfactual. Ought to the federal authorities be capable of withhold all federal funding from a personal 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 regulation requires that defunding efforts be focused towards the “specific program” the place “noncompliance has been so discovered.” However, because the criticism notes, there is no such thing as a “rational connection between antisemitism issues and the medical, scientific, technological, and different analysis it has frozen.”
Trump is punishing folks and departments that had completely nothing to do with any of Harvard’s alleged illegal actions. And by chopping again on very important analysis funds, he’s hurting America to punish Harvard.
The arguments I’m making are the identical ones I made again and again throughout my authorized profession in dozens of lawsuits towards universities to guard conservative and spiritual college students and professors from progressive censorship and discrimination. That is, because the authorized saying goes, “black letter regulation” — there may be little or no authorized ambiguity right here.
This isn’t a progressive authorized argument. Certainly, in the event you scan the signature block of Harvard’s lawsuit, it’s a digital who’s who of conservative attorneys. I acknowledge many of the names, and I personally know quite a lot of the attorneys.
Harvard’s attorneys embrace Robert Hur, the particular counsel who investigated Joe Biden’s retention of categorized 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 colleges in advancing age.”
The attorneys for the lead agency on the case embrace a former Antonin Scalia regulation clerk, a former Clarence Thomas regulation clerk and Ted Cruz’s former chief counsel. Harvard’s lawsuit — at its core — isn’t a progressive assault on a Republican president, however moderately 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 typically comes via imperfect automobiles exactly as a result of shrewd authoritarians typically select unpopular targets.
It’s exhausting to rally mass actions to help unlawful immigrants, giant regulation corporations or elite educational establishments. “Fingers off Harvard” isn’t precisely a slogan that can rally disaffected steelworkers to the Democratic aspect.
American free speech regulation has been outlined when unpopular folks or unpopular establishments get up towards 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 peak of World Battle II, or college members who refused to signal certifications that they weren’t members of the Communist Celebration throughout the center of the Chilly Battle.
Whereas we are able to applaud Harvard’s choice to confront Trump, the college nonetheless wants reform, given its latest historical past. Harvard’s stand won’t make it the constitutional hero that we would like, however it’s the constitutional hero we’d like.
