Judge Grants Preliminary Injunction Against Government's Suspending Harvard's Participation in Student Visa Program
Some short excerpts from Judge Allison Burroughs (D. Mass.) very long decision yesterday in President & Fellows of Harvard College v. U.S. Dep't of Homeland Security:
[A] presidential proclamation entitled "Enhancing National Security by Addressing Risks at Harvard University" … suspends "the entry of any alien into the United States as a nonimmigrant to pursue a course of study at Harvard University … or to participate in an exchange visitor program hosted by Harvard University [under the Student Exchange Visitor Program (SEVP)]."
Harvard sued challenging the proclamation, arguing that it was inconsistent with the relevant statute (for more on that, read the opinion) and in any event violated Harvard's First Amendment rights. First, Harvard argued that it was retaliation based on Harvard's having rejected demands made by the federal government in an April 11 Letter:
[The April 11 Letter] dictated specific conditions required for Harvard to "maintain [its] financial relationship with the federal government." These conditions included, among other things:
- "reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship";
- "reform[ing] 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";
- "commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse";
- "[reforming e]very department or field found to lack viewpoint diversity … by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity";
- "[reforming] every teaching unit found to lack viewpoint diversity … by admitting a critical mass of students who will provide viewpoint diversity";
- "commission[ing] an external party, which shall satisfy the federal government as to its competence and good faith, to audit [certain] programs and departments that most fuel antisemitic harassment or reflect ideological capture";
- "shutter[ing] all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop[ing] all DEI-based policies, including DEI-based disciplinary or speech control policies, under whatever name [and] demonstrat[ing] that it has done so to the satisfaction of the federal government"; and
- "end[ing] support and recognition of those student groups or clubs that engaged in anti-Semitic activity since October 7th, 2023, including the Harvard Palestine Solidarity Committee, Harvard Graduates [sic] Students 4 Palestine, Law Students 4 Palestine, Students for Justice in Palestine, and the National Lawyers Guild." …
The court concluded that Harvard was likely to prevail on this retaliation claim:
"[T]he First Amendment prohibits government officials from relying on the 'threat of invoking legal sanctions and other means of coercion … to achieve the suppression' of disfavored speech." NRA v. Vullo. Importantly, "a government official cannot directly or indirectly coerce a private party to punish or suppress disfavored speech on her behalf." Against that backdrop, the elements of a retaliation claim are that "(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by the plaintiff's protected conduct."
On the first element, Harvard alleges that its refusal to meet the demands made by the government in the April 11 Letter, including that it cede control over its admissions and curriculum, constitutes the protected impetus for the alleged campaign of retaliatory conduct. Although "[a]cademic freedom [is] not a specifically enumerated constitutional right," the courts' "responsibility to safeguard [educational institutions'] academic freedom [is] 'a special concern of the First Amendment.'" "Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also … on autonomous decisionmaking by the academy itself." "A university ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest."
"'[T]he four essential freedoms' of a university [are] to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." The April 11 Letter, on its face, was aimed directly at these protected academic freedoms, as it clearly sought to control the views of Harvard's faculty and students as well as the school's curricula and make them subject to government approval.
The letter further requires Harvard to select an external party, also subject to the government's approval, to audit all departments, fields, and teaching units to ensure "viewpoint diversity," a term that is defined nowhere in the Letter. Departments or fields found to lack such viewpoint diversity would be required to hire a "critical mass" of new faculty "who will provide viewpoint diversity," again subject to the oversight of the government, and "admit[ ] a critical mass of students who will provide viewpoint diversity." Further, Harvard must select an external party, again subject to government approval, to "audit" programs that "reflect ideological capture," a term not defined in the April 11 Letter, and then to "make repairs." These programs, as identified in the letter, include not just programs focused on international human rights or religion, but also programs at the Graduate School of Education, the Medical School, and the School of Public Health.
Thus, it is plain that Harvard's refusal to acquiesce to these demands constitutes engagement in protected conduct. Moreover, Harvard's public statements regarding its refusal, including President Garber's April 14 letter, also constitute protected speech….
On the second element, there can be no dispute that the Proclamation constitutes adverse action, nor do Defendants even attempt to offer a compelling reason to conclude otherwise. On its face, the Proclamation describes the ability to host foreign students and faculty as a "privilege" that is being lost. The loss of this privilege is an adverse action, particularly given the impact of the loss of that privilege on Harvard and its students and faculty. As articulated in Harvard's Amended Complaint, "[t]he sudden inability to maintain [international] students' enrollment jeopardizes ongoing research projects, damages Harvard's reputation as a world-class research institution, and deprives our nation of the benefits of … vital research projects."
The final element is the only one to which Defendants offer a serious dispute, and that is the causal connection between the April 11 Letter and the Proclamation. Defendants contend that "[t]he April 11 [L]etter and Harvard's rejection have no relation to the Proclamation"; "the gap in time undermines any link"; and the relevant parties are different. Defendants argue that the seven weeks between the April 11 Letter (or the April 14th response) and the Proclamation—issued June 4th—preclude any possible finding of a causal connection, "as courts 'typically allow no more than a few days to elapse between the protected activity and the adverse action.'"
Defendants' reading of the record is so selective as to border on absurd. Between the April 11 Letter and the Proclamation, there were very few days where the Administration did not attack Harvard in some form or another, including six Truth Social posts from the President himself; several actual or threatened grant and funding freezes; several iterations of the Administration's attempts to limit Harvard's ability to host international students and visitors; other investigation initiations; and numerous other statements by President Trump and other officials in the Administration, as detailed supra. Defendants' countervailing argument that these assaults cannot constitute retaliation as they came from different parties and are therefore not attributable to any one source is equally puzzling, because that fact only serves to reinforce that the Administration has made a full court press against Harvard on many different fronts. Indeed, public reporting surfaced only days before the Proclamation was issued regarding a session convened by the President to "brainstorm additional punitive measures" against Harvard that included "officials from nearly a dozen agencies."
Far from rebutting a finding of retaliation, the Administration's concerted campaign entirely supports such a finding. In summary, Defendants claim that "Harvard wants to [sic] the Court to take the massive and impermissible inference that all of these disparate actions are connected and designed to single out Harvard for its speech." But far from being a "massive and impermissible inference," to draw any other conclusion would require the Court to "blind [itself] to reality," namely that the government repeatedly, clearly, and unabashedly linked Harvard's refusal to accept the April 11 Letter's demands and the Proclamation….
Harvard also claimed that the government's actions were in part retaliation against Harvard's exercising its Petition Clause rights by "filing [a] lawsuit [with respect to the SEVP Revocation Letter and the Proclamation] and having filed the Funding Case." The court agreed that Harvard was likely to succeed as to this as well.
And the court likewise agreed with Harvard's argument that the government's actions were likely unconstitutional discrimination based on Harvard's viewpoints on other matters as well:
"One of the most egregious types of First Amendment violations is viewpoint-based discrimination…. Government actors may not discriminate against speakers based on viewpoint." Nor may they "single[ ] out a subset of messages for disfavor based on the views expressed," or "punish[ ] … organizations and their members merely because of their political beliefs and utterances."
Vullo is instructive. In that case, the Superintendent of the New York Department of Financial Services, Maria Vullo, was highly critical of the National Rifle Association ("NRA") in the wake several high-profile shootings, and she subsequently coerced insurance companies to sever ties with the NRA to avoid investigations. The Court held that the government cannot threaten or impose legal sanctions or other means of coercion to achieve suppression of disfavored speech. Although "Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law," as a government official, she could not "attempt to coerce private parties in order to punish or suppress views that the government disfavors."
The present case, although lacking the middlemen at issue in Vullo, presents precisely the same problem. Many of the Administration's statements in the past three months about Harvard have specifically critiqued its—real or perceived—left-leaning orientation. See [Am. Compl. ¶¶ 122 (Truth Social post stating: "Perhaps Harvard should lose its Tax Exempt Status and be Taxed as a Political Entity if it keeps pushing political, ideological, and terrorist inspired/supporting 'Sickness?' "), 123 (Truth Social post stating: "Harvard has been hiring almost all woke, Radical Left, idiots and 'birdbrains' [including former mayors Bill DeBlasio and Lori Lightfoot] … Many others, like these Leftist dopes, are teaching at Harvard, and because of that, Harvard can no longer be considered even a decent place of learning … and should no longer receive Federal Funds."), 127 (Press Release accompanying SEVP Records Request stating: "With anti-American, pro-Hamas ideology poisoning its campus and classrooms, Harvard's position as a top institution of higher learning is a distant memory…. This action follows President Donald J. Trump's decision to freeze $2.2 billion in federal funding to Harvard University, proposing the revocation of its tax-exempt status over its radical ideology."), 132 (Truth Social Post stating: "Harvard is an Anti-Semitic, Far Left Institution … The place is a Liberal mess, allowing a certain group of crazed lunatics to enter and exit the classroom and spew fake ANGER AND HATE."), 134 (Public cabinet meeting where President Trump said Harvard is "scamming the public and hiring people like [former New York City Mayor Bill] DeBlasio and [former Chicago Mayor] Lori Lightfoot who are certainly two of the worst mayors in the history of our country, paying them a fortune on salary, and having them teach our children how to manage cities and how to manage government" and "[t]he students [Harvard] ha[s], the professors [Harvard] ha[s], the attitude [Harvard] ha[s], is not American"); ECF No. 1-21 at 2–3 (Letter from Secretary McMahon stating: "The Harvard Corporation, which is supposed to competently and professionally manage Harvard's vast academic, financial, and physical resources, is run by strongly left-leaning Obama political appointee Penny Pritzker, a Democrat operative, who is catastrophic and running the institution in a totally chaotic way. Harvard alumnus and highly successful hedge fund manager Bill Ackman noted that, under her leadership, Harvard has become a 'political advocacy organization for one party.' ")]; Secretary Kristi Noem (@Sec_Noem), X (Jun. 1, 2025 at 12:00 PM ET) (video of an interview on Fox News where Noem criticized Harvard because, among other things, "communist and Marxist ideologies were allowed" on campus).
As Vullo makes clear, President Trump and his advisers are free to make statements like these criticizing Harvard for its perceived political viewpoints. "What [they] cannot do, however, is use the power of the State to punish or suppress disfavored expression." And the evidence suggests they were doing precisely that, including with regard to the Proclamation….