The Volokh Conspiracy
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"Harvard University Loses Student and Exchange Visitor Program Certification for Pro-Terrorist Conduct"
"This means Harvard can no longer enroll foreign students and existing foreign students must transfer or lose their legal status."
So the Department of Homeland Security announced today. A few tentative thoughts; if it turns out that I have erred in my understanding of the facts or of the program, I'll update them as necessary:
[1.] Unsurprisingly, student and exchange visitor visas are issued only to people who can show that they really are students and exchange visitors, and at recognized institutions that fulfill the visa program's goals. There are therefore procedures both for certifying and decertifying educational institutions as eligible for the Student and Exchange Visitor Program.
[2.] Equally unsurprisingly, institutions have to provide various information about students and the students' conduct. The DHS letter claims that:
On April 16, 2025, Secretary Noem demanded Harvard provide information about the criminality and misconduct of foreign students on its campus. Secretary Noem warned refusal to comply with this lawful order would result in SEVP termination….
Harvard University brazenly refused to provide the required information requested and ignored a follow up request from the Department's Office of General Council. Secretary Noem is following through on her promise to protect students and prohibit terrorist sympathizers from receiving benefits from the U.S. government.
I can't speak to what Harvard's alleged failures were, or whether they are sufficient under the statute to justify decertifying it.
[3.] At the same time, as with other broadly available benefits, the government generally can't deny them based on the viewpoints that Harvard expresses, declines to express, or tolerates and indirectly supports. And the letter suggests that the government's actions stem at least in part from such viewpoints. Consider, for instance, the list of "Facts about Harvard's toxic campus climate":
- A joint-government task force found that Harvard has failed to confront pervasive race discrimination and anti-Semitic harassment plaguing its campus.
- Jewish students on campus were subject to pervasive insults, physical assault, and intimidation, with no meaningful response from Harvard's leadership.
- A protester charged for his role in the assault of a Jewish student on campus was chosen by the Harvard Divinity School to be the Class Marshal for commencement.
- Harvard's own 2025 internal study on anti-Semitism revealed that almost 60% of Jewish students reported experiencing "discrimination, stereotyping, or negative bias on campus due to [their] views on current events."
- In one instance, a Jewish student speaker at a conference had planned to tell the story of his Holocaust survivor grandfather finding refuge in Israel. Organizers told the student the story was not "tasteful" and laughed at him when he expressed his confusion. They said the story would have justified oppression.
- Meanwhile, Pro-Hamas student groups that promoted antisemitism after the October 7 attacks remained recognized and funded.
Some of these behaviors are of course not protected by the First Amendment (e.g., "physical assault"). On the other hand, "promoting antisemitism" and being "pro-Hamas" is protected by the First Amendment. The same is true of laughing at people who want to tell stories about their Holocaust survivor family members is protected by the First Amendment, as is excluding them from a a program (whether run by a student group or by the private university) unless they change their message.
Choosing someone to honor as Class Marshal is also expression, even when the person chosen is being charged for assault—just as, for instance, an anti-abortion institution would be exercising its First Amendment rights by honoring someone who was accused of punching an abortion clinic employee. People may well condemn such expression, but I don't think the government can strip a university of participation in the program based on such expression.
[4.] More broadly, even if the DHS hadn't mentioned the university's or student groups' constitutionally protected speech, and instead focused just on nonspeech conduct, the government may not selectively enforce even speech-neutral rules in ways that deliberately target people or institutions based on their constitutionally protected speech. (See, e.g., Hoye v. City of Oakland (9th Cir. 2011), which held that the City's viewpoint-discriminatory enforcement of an ordinance in a way that targeted anti-abortion speakers violated the First Amendment.) Perhaps I'm mistaken, but it seems to me that the targeting of Harvard here has more to do with Harvard's ideological stances, including its opposition to past Administration demands, than with an evenhanded, content-neutral enforcement of reporting requirements, antidiscrimination rules, and the like.
In any event, I hope Harvard fights this, quite likely with a request for a preliminary injunction. The court will at that point presumably have more facts on what exactly Harvard allegedly did wrong, and why the Administration actually targeted Harvard; I look forward to seeing what is disclosed in that process.
