The Volokh Conspiracy
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"Statement on Academic Freedom and Harvard by Right-of-Center Scholars, Lawyers, and Former Government Officials"
Published in today's Chronicle of Higher Education (registration required there, reprinted here with permission):
We write as generally right-of-center lawyers, scholars, and former government officials to affirm the central importance of academic freedom and to speak out against the Trump Administration's attempts to restrict the speech of Harvard and other universities. We see plenty of problems with the academy, including those related to antisemitism. But having the federal government control the viewpoints that are taught and tolerated at universities is not the solution. Under the First Amendment, such decisions are to be left to universities, not commandeered by government officials, even when the government is attaching conditions to grants and other subsidies. As Chief Justice William Rehnquist wrote in Rust v. Sullivan (1991):
The university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.
The demands the Administration has made of Harvard University are especially troubling. The requirement that Harvard "audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture" expressly targets the expression of disfavored viewpoints. We do not share those viewpoints ourselves, but the First Amendment protects all viewpoints, whether they are anti-Israel or pro-Israel or anti-Palestinian or pro-Palestinian, or even when they supposedly "fuel" antisemitism, racism, sexism, or other such beliefs. Title VI hostile educational environmental rules may permissibly ban certain kinds of harassment based on race or national origin. But Title VI does not, and cannot, require that universities generally suppress the expression of offensive views or ideologies where they fall short of discriminatory harassment.
If the demand that Harvard "immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives" were confined to programs that actually engage in illegal discrimination, it would likely be permissible (if the proper procedural requirements were followed). But "DEI … programs … and initiatives" seems to embrace programs that merely aim to teach "diversity, equity, and inclusion" viewpoints. Again, whether we support such programs or not, they are protected by the First Amendment against federal government attempts to suppress them because of their viewpoint.
The administration's attempt to mandate "viewpoint diversity" also violates the First Amendment. Viewpoint diversity is in many ways an admirable goal, and many of us would like to see more such diversity at universities. But it cannot be reduced to any sort of manageable government-supervised standard. Any attempt by the federal government to police whether a university is providing adequate viewpoint diversity would itself have to involve viewpoint discrimination, in determining which viewpoints should be represented and which viewpoints need not be. And that is true whether the federal government is trying to promote greater representation of conservative views, libertarian views, liberal views, Socialist views, or any other kinds of views.
Since Harvard declined the administration's demands, the administration has frozen $2.2 billion in federal funds, and the President has suggested that the IRS revoke the university's tax exemption based on the viewpoints that Harvard assertedly promotes and tolerates. These actions, taken in direct retaliation for Harvard standing up for academic freedom, strike at the core of the liberty our Constitution protects. We urge the administration to reinstate Harvard's funding, and halt its retaliatory treatment of the university.
Academic institutions are far from perfect. They make many kinds of mistakes. In some instances they have violated the very norms of academic freedom and diversity of thought that they now invoke in their own defense; indeed, if voluntarily adopted by universities through their established forms of academic governance, some of the measures demanded of Harvard would be welcome reforms. But the premise of academic freedom, and the command of the First Amendment, is that universities' mistakes should be dealt with through debate, university self-governance, and competition among institutions, and not through federal governmental restraint or pressure.
Larry Alexander, Professor Emeritus of Law, University of San Diego; Co-Founder and (past) Co-Editor-in-Chief, Legal Theory; Co-Founder and (past) Co-Director, Institute for Law and Philosophy
Don Ayer, former Deputy Attorney General and Principal Deputy Solicitor General
Steven Calabresi, Professor, Northwestern Law School, co-founder of Federalist Society
Barbara Comstock, former member of Congress and Virginia House of Delegates
George Conway, Board President, Society for the Rule of Law Institute
Richard Epstein, Professor, University of Chicago Law School and NYU Law School
Thomas Garrett, former Secretary General, Community of Democracies
Stuart Gerson, former Acting Attorney General
Peter Keisler, former Acting Attorney General
J. Michael Luttig, former U.S. Circuit judge
Michael McConnell, Professor, Stanford Law School, Senior Fellow, Hoover Institution, Stanford University, and former U.S. Circuit Judge
Michael Mukasey, former Attorney General and U.S. District Judge
Michael Stokes Paulsen, Professor, University of St. Thomas Law School
Alan Charles Raul, former Associate Counsel to President Reagan, General Counsel, OMB and Department of Agriculture
Nicholas Rostow, former Special Assistant to the President for National Security Affairs and Legal Adviser to the National Security Council
Larry Thompson, former Deputy Attorney General
Eugene Volokh, Senior Fellow, Hoover Institution, Stanford University; Professor Emeritus, UCLA School of Law
Keith Whittington, Professor, Yale Law School
Philip Zelikow, Senior Fellow, Hoover Institution, Stanford University; Professor Emeritus, University of Virginia Department of History
Note that this was drafted well before yesterday's announcement of Harvard losing its certification for the student and exchange visitor visa program, which is why it doesn't discuss that matter.
