Photo: Brett Phelps/Boston Globe/Getty Images
Harvard will keep on beating Donald Trump in the courts, but this is asymmetric warfare. To Trump, the effort to subordinate Harvard to the government is just another amusement, a sucker punch thrown at the snooty rich kid who has done nothing wrong but naturally evokes resentful snickers from bystanders. Harvard, for its part, has shown remarkable institutional fortitude, refusing to bow to the extortionist. But the university — and worse, many of its students — will ultimately suffer for winning.
We’re now deep into Trump’s multifront assault on Harvard. (Disclosure: I went to Harvard Law School.) It started in early April when the Trump administration demanded that the university hire an outside consultant to “audit” everybody at the school for “viewpoint diversity” — among other absurd demands aimed at government micromanagement of the speech and beliefs of tens of thousands of students and teachers at a private university. The government’s move was more Orwell than Reagan, more thought control than hands-off conservatism.
If Harvard failed to comply, the Trump administration warned, the school would lose over $2 billion in federal funding. (Separately, Trump has threatened to revoke Harvard’s tax-exempt status and to cut off its federal contracts.) But Harvard, unbowed, stood up for itself and sued — in pointed contrast to its fellow Ivy, Columbia, which capitulated to an executive-branch shakedown to preserve its access to the federal dime.
In its lawsuit, Harvard pointed to the administration’s flagrant First Amendment assault on the institution. Indeed, for the government to explicitly condition funding on the content of speech and belief is antithetical to the First Amendment. As the Supreme Court held last year, “It is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” (As a fallback legal position, Harvard notes that the administration has not complied with procedural requirements that must accompany a move to strip funding.) That case will play out over the summer and, given the yawning absence of legal grounding for the administration’s actions, you can safely expect Harvard to win.
Reeling from the university’s impudent slap back, the Trump administration began a new offensive targeted at Harvard’s international students. Department of Homeland Security secretary Kristi Noem sent a letter demanding that Harvard produce ten categories of documentation on its 7,000 or so international students, spread across 13 schools. Noem graciously afforded Harvard all of ten business days to respond, noting darkly that failure to comply would be “treated as a voluntary withdrawal” from the international-student visa program, not subject to appeal.
Noem’s letter conveys to Harvard an incomprehensible, overboard mishmash of requests for records reflecting “dangerous” activity, “known threats,” “obstruction of the school’s learning environment,” and “deprivation of rights” by visa holders. Notwithstanding the impossibly vague demands, Harvard produced thousands of documents to Noem — who swiftly declared the response unsatisfactory and kicked the university out of the international-student visa program.
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Harvard sued last week to block Noem’s decree and, just hours later, won temporary relief from a federal judge in Massachusetts, Allison Burroughs. Then, at a hearing this week, the Trump administration — apparently seeking to slow-play its inevitable courtroom loss — offered to grant Harvard a 30-day extension on its response to the aforementioned document requests and argued to Judge Burroughs that Harvard’s legal challenge therefore had become moot. The judge didn’t buy it. Instead, she extended her prior order indefinitely, prohibiting the Trump administration from changing Harvard’s participation in the student-visa program, pending full resolution of the legal issues on the merits. Harvard and its international students can return to the status quo — for now, at least, but with the future still uncertain.
The Trump administration’s stated rationales for its attacks on Harvard have varied wildly and betray the flimsiness of its underlying position. At times, it’s all about combating antisemitism — though it’s tough to see what stripping federal funding for cancer, ALS, and tuberculosis research has to do with protecting Jewish students on campus. At other points, Trump has pointed resentfully at Harvard’s wealth; indeed, the university has a staggering $53 billion endowment, plus a cash balance of more than the annual budget of the Commonwealth of Massachusetts. It’s unclear why there’s anything wrong with a private university building its own riches — but, hey, nobody likes the rich kid (although this administration typically purports to venerate Muskian private wealth, not to resent it). Most recently, Trump has sounded a note of plain old hometown protectionism: Why are so many foreign students taking up precious spots at Harvard that American kids want?
The Trump administration’s targeting of international students is a dastardly cheap shot. If Harvard, the impregnable institution, were to lose federal funding, for example, it would hurt — but the school would survive. The school might have to move some money from column A to column B, maybe ramp up a fundraising effort, or even dip into the endowment. The university’s mission would carry on and the loss would be spread around, with plenty of financial backstopping.
But Trump’s attack on international students hits below the belt. It threatens lasting damage to young people at a crucial point in their lives. What are Harvard’s 7,000 or so current foreign students — including dozens of Israelis (so much for the fight against antisemitism) — supposed to do? Summer session starts soon, and the fall semester begins in a few months. While Harvard has won temporary relief in the courts, a single legal setback could leave international students without a school to attend and without legal status in the United States.
What about newly admitted Harvard international students? And how about students at other schools who might come into the president’s crosshairs next? Do they show up on campus and hope for the best? Do they take the risk that some court will allow Trump’s attacks to proceed, leaving them without a school and subject to deportation?
Remember that we’re talking mostly about teenagers here, kids with bright futures but uncertain present scenarios. Trump couldn’t care less. Harvard is a useful foil, a convenient political enemy. The president is wrong legally, but he stands to lose nothing. If the courts continue to shoot down the administration’s efforts to subjugate Harvard, so what, from Trump’s perspective? The status quo remains intact, and he gets to wave the populist flag. And even if (and when) Harvard continues to win in the courts, the university will take its lumps, but it’ll mostly be just fine. But its students will suffer irreversible costs.
This article will also appear in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.
