“The Trump Administration’s Unconstitutional Hate Mail to Harvard,” by Prof. Genevieve Lakier (Chicago)
I’ve worked with Prof. Lakier on various projects recently, and have been much impressed with her analyses (as well as by her scholarship more generally). I’m therefore delighted to pass along her thoughts on the Administration’s letter to Harvard University, with which I generally very much agree:
On April 3, officials in the Trump administration sent a letter to Harvard University, apparently in response to efforts by university administrators to open a “dialogue” with them about the funding cuts the administration had several days earlier announced it was considering making. The letter responded to the university’s attempt to talk by outlining some, but possibly not all, of the changes the university would have to make in order to preserve the university’s “continued financial relationship with the United States government.”
The changes the letter asks for are sweeping, if also very much lacking in specifics. The letter demands, among other things that Harvard “review[]” and make “necessary changes” to academic programs and departments that “fuel antisemitic harassment” to “improve [their] viewpoint diversity and end ideological capture.” Harvard also has to “consistently and proactively enforce its existing disciplinary policies, ensuring that senior administrative leaders are responsible for final decisions.” It must impose a “comprehensive mask ban” on campus, and hold student protestors and student groups more strictly accountable for violation of the institutional time, place and manner rules.
It must cease all DEI programming on campus, as well as adopt a “merit-based” system of admissions and hiring (as opposed to what Harvard has now?). Harvard also has to “make meaningful governance reforms … to foster clear lines of authority and accountability, and … empower faculty and administrative leaders who are committed to implementing the changes indicated in this letter.” It must in other words, reallocate power within the institution to those who agree with the administration’s ideological agenda.
These demands are breathtaking in their ambition. The administration appears to be asking Harvard to change not only how it regulates speech and conduct on campus but how it performs its core educational and research functions, how it determines who constitutes the university community in the first place, and how it self-governs—although, again, without giving Harvard clear direction in any of these respects.
These demands are also very likely unconstitutional. As I, along with fifteen other constitutional law scholars argued in a public statement several weeks ago, the decision by the Trump administration to terminate $400 million in funding to Columbia was not only unjustified on statutory grounds but very likely violated the First Amendment by chilling, and pushing Columbia to suppress, protected expression. The same is true here, even though in this case, the administration hasn’t actually cut Harvard’s funding (yet!) but merely threatened to do so.
It doesn’t matter that the administration has so far merely threatened to pull Harvard’s funding, not actually done it, because—as the Supreme Court made clear just a year ago, in National Rifle Association v. Vullo—threats can violate the constitution too when they promise legal or regulatory harm in an effort to coerce private speakers or speech hosts like Harvard into censoring themselves or suppressing oth
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