Here Is Why Harvard Argues That Trump's Funding Freeze Violates the First Amendment
The administration's demands extend far beyond its avowed concern about antisemitism and enforcement of "civil rights laws."
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 percent were registered Republicans. A whopping 93 percent of students had an "unfavorable" view of Donald Trump, compared to 30 percent who viewed Joe Biden unfavorably.
One need not be a Trump fan to recognize a problem here. But is it the sort of problem that the federal government should try to solve by exerting financial pressure on a private university? Harvard cites case law that suggests it is not.
"For at least a quarter-century," the Supreme Court observed in the 1972 case Perry v. Sindermann, "this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.'"
While that case involved a professor at a state junior college who argued that administrators declined to renew his contract because of his constitutionally protected speech, the principle (which is not limited to the First Amendment context) applies broadly. In the 2013 case Agency for International Development v. Alliance for Open Society International, for example, the Supreme Court held that a "funding condition" imposed by Congress "can result in an unconstitutional burden on First Amendment rights."
Harvard also notes that the Supreme Court frowns upon government mandates that seek to impose "balance" or "fairness" on private speech forums. In the 1974 case Miami Herald v. Tornillo, the Court rejected a Florida law that gave political candidates a "right of reply" in newspapers. And last year in Moody v. NetChoice, it held that the First Amendment also protects the editorial discretion of social media companies. The government "cannot prohibit speech to improve or better balance the speech market," Justice Elena Kagan noted in the majority opinion. "On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana."
The Supreme Court also has held that the government violates the First Amendment when it uses "the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation" against third parties (in that case, book distributors) to "achieve the suppression" of speech it deems "objectionable." The Court reaffirmed that principle last year in NRA v. Vullo.
In light of these precedents, it certainly seems like the Trump administration, by financially penalizing Harvard for promoting DEI, accepting foreign students with disfavored opinions, allowing "ideological capture" of "programs and departments," or failing to achieve "viewpoint diversity," aims to "produce a result which [it] could not command directly." The university argues that the government's demands "cut at the core of Harvard's constitutionally protected academic freedom because they seek to assert governmental control over Harvard's research, academic programs, community, and governance." It adds that "restrictions on Harvard's programs violate the First Amendment by seeking to restrict what Harvard's faculty may teach students."
Harvard also argues that the Trump administration is unconstitutionally retaliating against the university for speech protected by the First Amendment: "Harvard's April 14 letter and statement refusing to comply with the Government's demands." The Trump administration "presents demands that, in contravention of the First Amendment, invade university freedoms long recognized by the Supreme Court," Harvard's lawyers said in the letter. Because "Harvard is not prepared to agree to demands that go beyond the lawful authority of this or any administration," they explained, it "will not accept the government's terms….The university will not surrender its independence or relinquish its constitutional rights. Neither Harvard nor any other private university can allow itself to be taken over by the federal government."
In a separate statement, Garber noted that the Trump administration's requirements went far beyond its ostensible concern about the antisemitism reflected in anti-Israel protests inspired by the war that Hamas started in October 2023. "Although some of the demands outlined by the government are aimed at combating antisemitism, the majority represent direct governmental regulation of the 'intellectual conditions' at Harvard," he wrote. "No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue."
Hours later, the Trump administration's Joint Task Force to Combat Anti-Semitism announced "a freeze on $2.2 billion in multi-year grants and $60M in multi-year contract value to Harvard University." Here is the explanation it offered: "Harvard's statement today reinforces the troubling entitlement mindset that is endemic in our nation's most prestigious universities and colleges—that federal investment does not come with the responsibility to uphold civil rights laws. The disruption of learning that has plagued campuses in recent years is unacceptable. The harassment of Jewish students is intolerable. It is time for elite universities to take the problem seriously and commit to meaningful change if they wish to continue receiving taxpayer support."
During the anti-Israel protests, Harvard concedes, "members of the Jewish and Israeli communities at Harvard reported treatment that was vicious and reprehensible." The university says it has taken various steps to address that problem, including "new accountability procedures and clarified policies," "meaningful discipline for those who violate applicable policies," "programs designed to address bias and promote ideological diversity and civil discourse," and "enhanced safety and security measures." But contrary to the way the Trump administration has framed its funding freeze, it is pursuing a much wider agenda than enforcement of "civil rights laws."
The government is plainly using antisemitism as an excuse to impose its vision of higher education on private universities, including Columbia, Brown, Northwestern, and Cornell as well as Harvard. Trump's attempt to "control the hiring practices and curricula of universities," George Mason law professor Ilya Somin argues, is part of a broader campaign to "force state governments and private institutions to bend to one man's will, across numerous issues," via "illegal grant conditions."
Even commentators who are sympathetic to Trump's critique of "our nation's most prestigious universities and colleges" object to his tactics. "However in need of reform they are (profoundly in need, to my mind)," says National Review columnist Andrew McCarthy, "extortion is not the American way." While "some universities may well deserve to lose federal funding," Case Western law professor Jonathan Adler writes, "there are legal processes governing the revocation of grants," and "the executive branch lacks the authority to impose conditions on the receipt of federal funds just because the president or his underlings are justifiably upset with what American higher education has become."
Nico Perrino, executive vice president of the Foundation for Individual Rights and Expression, notes that "the government must follow a specific process in order to revoke federal funding under Title VI" of the Civil Rights Act, which "it did not follow" in this case. Perrino also amplifies Harvard's First Amendment argument. "The government demanded Harvard give up its autonomy and First Amendment rights [as a] condition of receiving federal funds," he writes. He notes that "President Trump explicitly said Harvard 'teaches Hate and Stupidity, and should no longer receive Federal Funds,'" thereby confessing to presumptively unconstitutional "viewpoint discrimination."
[This post has been updated with comments from Nico Perrino.]
