The Volokh Conspiracy
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"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 other people's speech. As the Court put it in Vullo, quoting an earlier Second Circuit opinion, "although government officials are free to advocate for (or against) certain viewpoints, they may not encourage suppression of protected speech in a manner that can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request."
It is very hard to read the Harvard letter as doing anything else but "reasonably intimating"—indeed, very strongly intimating—that adverse regulatory action will follow the failure to accede to its demands. In a recent case, the Ninth Circuit held that Elizabeth Warren did not violate the First Amendment when she sent a letter to Amazon that expressed displeasure at the fact that a book that contained Covid-19 misinformation was listed on the retailer's best seller lists and hinting at possible legal consequences if Amazon did not change how it promoted this kind of material. The Ninth Circuit found that the letter did not violate the First Amendment because the letter did not "intimate[] that [Warren would] use her authority to turn the government's coercive power against the target if it does not change its ways" but merely expressed concern about Amazon's actions. In this case, by contrast, it is impossible to read the Harvard letter as doing anything other than making crystal clear that the administration will use its coercive power of the purse to punish the university if it does not change its ways.
There also can be no question that the demands the administration is making of Harvard are intended to suppress protected expression, of various kinds. To avoid the loss of federal funds, Harvard will have to refrain from advocating for, or empowering others to advocate for, the viewpoint that diversity, equality, and inclusion are important educational and social values. It will have to change how it oversees faculty research and teaching, and what kinds of scholarly viewpoints it hires and promotes. And it will have to suppress student speech and association, including core political expression, more severely than it has chosen to do so far—or at least it will have to promise to do so. Fundamentally, the letter uses the stick of funding cuts to undermine every single one of the "four essential freedoms"—the freedom "to determine for itself … who may teach, what may be taught, how it shall be taught, and who may be admitted to study"—that Justice Frankfurter, in concurring opinion in Sweezy v. New Hampshire, identified as core to the institutional autonomy that the U.S. constitution guarantees to universities.
It may be the case that some of the hiring practices that the letter requires Harvard to change are unprotected because they constitute, say, the kind of racial discrimination prohibited by Title VII of the Civil Rights Act of 1964. Similarly, some of the student expression that Harvard will have to promise to regulate more strictly may not be protected because it constitutes involve fighting words, or discriminatory harassment prohibited by Title VI.
But there can be no doubt that much of what the administration is targeting here is protected speech and association, even under the most expansive interpretations of both Title VI and Title VII. After all, neither statute would ever give the government the power to decide when and how academic departments are ideologically captured, or insufficiently diverse in their viewpoints. Similarly, it is very difficult to see how Title VI would ever give the government the power to force universities like Harvard to strictly enforce their time, place, and manner rules, or ensure that senior administrators are responsible for disciplinary decisions. And that is to say nothing of the other demands, such as the demand to get rid of all DEI programming.
The fact that it lacks the power to simply legislate these changes is obviously an important reason why the Trump administration is instead attempting to use the stick of funding cuts to force Harvard to make them on its behalf. But the fact that the administration is proceeding in this informal manner, by negotiating with Harvard rather than ordering it to act, does not make its actions any less inconsistent with the First Amendment. If anything, it makes them only more troubling.
After all, as the example of Columbia University vividly demonstrates, the businesses that are typically targeted by these kinds of threats (including, evidently, non-profit educational businesses) will often choose to comply rather than fight them in court even when they have a very good chance of succeeding in that litigation. This is because these institutions will often believe, rationally enough, that it is more advantageous to maintain good relationships with the officials who oversee their operations than to defend the speech interests of the third parties (in this case, students and faculty) who use their property and resources to speak.
And when, as here, it is unclear exactly what is required to make the government happy, businesses targeted by these kinds of threats may restrict even more speech than officials expressly demand of them, to avoid any risk of retribution down the line. (In one case, for example, retailers accused of disseminating pornography who faced far milder threats of governmental retribution than Harvard faces now removed not only issues of Playboy and Penthouse magazines from their shelves, but also "out of an abundance of caution," also temporarily suspended the sale of American Photographer and Cosmopolitan magazines because they contained photographs of women with bare breasts.)
The result is that informal government threats and sanctions can create what Justice Brennan, in Bantam Books v. Sullivan, described as an "informal system … of regulation" that is not governed by the ordinarily speech-protective rules that govern the formal system but instead restricts whatever speech government officials want private actors to restrict, without judicial oversight. Powerful actors in the system can, in effect, sacrifice other people's speech interests in order to save their hide. And for this reason, the Court has recognized that this kind of "do it or else" approach to speech regulation creates, as Justice Brennan put it, "hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law" and categorically prohibited it. (For a fuller version of this argument, see here.)
The fact that this kind of tactic can succeed in coercing even very rich and powerful institutions to comply demonstrates how effective, and dangerous, it can be as a tool of speech suppression. It also makes it essential to call the government out when it engages in this kind of "jawboning against speech." Even if it never actually cuts any of the university's money, the letter that the Trump administration sent to Harvard poses a very serious threat to the free speech values that Harvard itself has insisted is essential to its institutional mission.
Hopefully the fact that complying with the government's demands will require Harvard to abandon the values it has argued are "uniquely important" to it as an educational institution will mean that, in the end, the university will not choose the path of appeasement that Columbia has chosen so far but will instead defend its own institutional expressive interests, as well as those of its student and faculty, in court. If Harvard does give in, however, we should all recognize what it is doing—namely, enabling, and thereby encouraging, the unconstitutional actions of an administration that appears hellbent on destroying the independence of American higher education, one rich ivy-covered institution at a time.
I might have come to these results slightly differently; for instance, I'm not positive that Frankfurter's freedom of a university "to determine for itself on academic grounds … who may be admitted to study" entirely makes sense in the funding context (where, even beyond bans on race and sex discrimination, a state might be allowed to, for instance, condition funding for private universities on those universities' maintaining preferences for in-state students). But these are minor differences; in general, I think Prof. Lakier's analysis is correct and important.
