Here Is Why Harvard Argues That Trump’s Funding Freeze Violates the First Amendment
You may find it hard to sympathize with Harvard, the nation’s oldest and richest university, especially when it is fighting to keep billions of dollars in taxpayer money flowing into its coffers. But a federal lawsuit that Harvard filed on Monday plausibly claims that the Trump administration’s freeze on research funding to the university violates the “unconstitutional conditions” doctrine by requiring the surrender of First Amendment rights in exchange for a government benefit.
Harvard’s complaint, which it filed in the U.S. District Court for the District of Massachusetts, argues that the funding freeze is “arbitrary and capricious” under the Administrative Procedure Act and flouts the government’s “own regulatory procedures.” But I will focus on Harvard’s First Amendment claims, which should not be dismissed as mere grumbling over lost revenue.
To “maintain Harvard’s financial relationship with the federal government,” the General Services Administration, the Department of Education, and the Department of Health and Human Services said in an April 11 letter to Harvard President Alan Garber, the university must implement a list of hiring, admission, administrative, curricular, and disciplinary reforms. Several of those requirements directly implicate conduct protected by the First Amendment.
The letter demands, for example, that Harvard “immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives.” It also says Harvard “must reform its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence.”
The letter says Harvard needs to commission an audit by a government-approved “external party” of “those programs and departments that most fuel antisemitic harassment or reflect ideological capture.” It names 10 specific “programs, schools, and centers of concern,” including the Divinity School, the Graduate School of Education, the School of Public Health, the Religion and Public Life Program, and the Center for Middle Eastern Studies. By the end of 2025, the letter says, Harvard must implement “reforms…to repair the problems” identified by the audit.
Most strikingly, the Trump administration wants Harvard to “audit the student body, faculty, staff, and leadership for viewpoint diversity.” Any “department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty.” Any “teaching unit found to lack viewpoint diversity” likewise “must be reformed by admitting a critical mass of students who will provide viewpoint diversity.”
We can surmise what such an audit would find. In a 2023 survey by The Harvard Crimson, more than three-quarters of faculty members described themselves as “liberal” (45.3 percent) or “very liberal” (31.8 percent). One-fifth of the respondents viewed themselves as “moderate,” while just 3 percent picked “conservative” or “very conservative.”
A Crimson survey of Harvard’s 2022 graduating class found only a bit more “viewpoint diversity.” More than two-thirds of students described themselves as “progressive” or “very progressive,” while about a quarter identified as “moderate” and just 6.4 percent said they were “conservative” or “very conservative.” Fifty-five percent of respondents were registered Democrats, while just 4 perce
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