Judge Grants Preliminary Injunction Against Government’s Suspending Harvard’s Participation in Student Visa Program
Some short excerpts from Judge Allison Burroughs (D. Mass.) very long decision yesterday in President & Fellows of Harvard College v. U.S. Dep’t of Homeland Security:
[A] presidential proclamation entitled “Enhancing National Security by Addressing Risks at Harvard University” … suspends “the entry of any alien into the United States as a nonimmigrant to pursue a course of study at Harvard University … or to participate in an exchange visitor program hosted by Harvard University [under the Student Exchange Visitor Program (SEVP)].”
Harvard sued challenging the proclamation, arguing that it was inconsistent with the relevant statute (for more on that, read the opinion) and in any event violated Harvard’s First Amendment rights. First, Harvard argued that it was retaliation based on Harvard’s having rejected demands made by the federal government in an April 11 Letter:
[The April 11 Letter] dictated specific conditions required for Harvard to “maintain [its] financial relationship with the federal government.” These conditions included, among other things:
- “reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship”;
- “reform[ing] 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”;
- “commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse”;
- “[reforming e]very department or field found to lack viewpoint diversity … by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity”;
- “[reforming] every teaching unit found to lack viewpoint diversity … by admitting a critical mass of students who will provide viewpoint diversity”;
- “commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit [certain] programs and departments that most fuel antisemitic harassment or reflect ideological capture”;
- “shutter[ing] all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop[ing] all DEI-based policies, including DEI-based disciplinary or speech control policies, under whatever name [and] demonstrat[ing] that it has done so to the satisfaction of the federal government”; and
- “end[ing] support and recognition of those student groups or clubs that engaged in anti-Semitic activity since October 7th, 2023, including the Harvard Palestine Solidarity Committee, Harvard Graduates [sic] Students 4 Palestine, Law Students 4 Palestine, Students for Justice in Palestine, and the National Lawyers Guild.” …
The court concluded that Harvard was likely to prevail on this retaliation claim:
“[T]he First Amendment prohibits government officials from relying on the ‘threat of invoking legal sanctions and other means of coercion … to achieve the suppression’ of disfavored speech.” NRA v. Vullo. Importantly, “a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf.” Against that backdrop, the elements of a retaliation claim are that “(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected conduct.”
On the firs
Article from Reason.com
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