Nikolas Bowie and Benjamin Eidelson are professors at Harvard Law School.
President Trump’s antisemitism task force recently announced a “comprehensive review” of more than $8.7 billion in planned federal grants for Harvard University and its affiliated hospitals. In the same breath, the task force all but conceded that this review is a sham: The point is not to investigate concrete allegations of discrimination, but to hold these vital grants hostage in order to “refocus our institutions of higher learning” as the Trump administration thinks best.
Indeed, Leo Terrell, the task force’s chair, said weeks ago on Fox News that his true aim is to “bankrupt these universities” and “put an end” to their pernicious influence on “the mindset of our young people.” By withholding millions of dollars from Columbia University, he has already exacted a growing list of commitments — from changes to the curriculum to new speech restrictions. Now the task force has issued similar demands of Harvard, adding that the university must also eliminate diversity programs, facilitate immigration enforcement, and more. “Reform is not optional,” the task force told Fox News. “The era of elite impunity is over.”
Harvard now faces one of the most consequential choices in its centuries-long history: Submit to this extortion and make itself complicit in the most profound assault on academic freedom and constitutional governance of our time — or go to court and vindicate the university’s core values and legal rights. The stakes are high, but the choice should not be difficult.
The nominal legal basis for Trump’s demands has been Title VI of the Civil Rights Act of 1964, which prohibits using federal funds for discrimination. The basic idea of the law is straightforward. As President Kennedy observed, “Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.”
When Congress embraced that idea, it recognized that simple justice also requires due process. Congress spends federal funds for a reason — in Harvard’s case, mainly to support medical and scientific research — and it would undermine Congress’s goals if these funds could be withdrawn on a whim. So rather than empower the president to unilaterally withhold all federal funding from any recipient he deems undeserving, the statute requires robust procedures — including notice, hearings, and formal findings — to ensure that any penalties actually remedy discrimination.
The most important of these procedures is that affected parties have an express right to “judicial review.” It would thus fall to the courts — not an administration that believes “universities are the enemy” — to decide whether the specific allegations of discrimination have merit and, if they do, what targeted and proportionate remedies are appropriate.
The task force’s purported review of Harvard acknowledges none of this. Perhaps most glaringly, it ignores Title VI’s assurance that any funding denial “shall be limited in its effect to the particular program, or part thereof,” in which “noncompliance ... has been found.” Nine billion dollars is thus a patently absurd measure of the funding lawfully at stake. The only function of that stunning figure is to coerce a preemptive surrender by threatening actions that everyone knows the law would not permit. (This fits a pattern in which the administration is issuing executive orders that name-check laws enacted by Congress while blatantly disregarding what those laws actually say, usurping Congress’s authority in the process.)
In fact, the antisemitism task force’s operation is so divorced from the realities of Title VI that one might wonder whether the administration will soon give up even this legal fig leaf. The press release announcing the Harvard “review” omitted any specific mention of the statute, and some of the task force’s demands, like facilitating deportations, are implausibly related to civil rights. Perhaps, then, the administration is moving toward candor about its real position: not that it is faithfully enforcing any anti-discrimination law enacted by Congress, but that it has absolute authority to block appropriated funds flowing to institutions that it deems — in its sole discretion — unworthy.
That idea is brazenly at odds with basic constitutional principles. The First Amendment prohibits the government from denying funds or other benefits to punish a recipient’s constitutionally protected speech. Title VI’s regime of funding conditions respects that rule through its insistence on announced standards, procedural safeguards, and tailored remedies. But a regime in which the president alone may use the entire federal budget as a cudgel to suppress whatever speech he dislikes — whether he calls it “antisemitic” or simply “anti-Trump” — is flatly incompatible with the First Amendment.
Such a regime is also incompatible with the separation of powers, which requires the president to respect the rule of law. Any attempt by Harvard to satisfy the president’s personal desires in the absence of legal restraint would leave Harvard in the position that Columbia now finds itself: catering to escalating demands without any assurance that Trump won’t come back for more.
Harvard has suffered real legal setbacks in recent years, including a major loss on affirmative action, and some stakeholders may be leery of another public fight. There is also no telling what other laws this administration might disregard in order to retaliate against Harvard for asserting its rights.
But a 400-year-old institution should be making decisions with a time horizon of centuries, not news cycles. Making a principled stand now — with the law squarely on its side — is the single best thing Harvard could do to earn its continued place as a symbol of genuine excellence, free inquiry, and commitment to the public good. Filing suit would also enhance Harvard’s legal position going forward, as any retaliation by the administration would be an even clearer violation of the First Amendment.
In contrast, cutting a deal in an attempt to appease an aspiring authoritarian — a deal that would not prevent him from continuing to target Harvard — would become a permanent stain on Harvard’s reputation. Future students would be left to wonder if they were getting the education that faculty and administrators would have chosen or the modified version deemed palatable to Donald Trump.
Worse, a failure to resist would prove profoundly demoralizing throughout academia and civil society as a whole. If the leaders of the world’s most powerful and wealthy university won’t stand up for its central motto — “veritas,” or truth — who do they think will?