Orange Man v Harvard (2024)

The Promise of American Higher Education – Harvard University President:

The administration’s prescription goes beyond the power of the federal government. It violates Harvard’s First Amendment rights and exceeds the statutory limits of the government’s authority under Title VI. And it threatens our values as a private institution devoted to the pursuit, production, and dissemination of knowledge. 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.

I certainly hope that Harvard and any other universities that take the same path of resistance win … but: The question is not whether private universities can determine their own identities, but rather whether private universities can determine their own identities while receiving government funds. If Harvard didn’t take federal funding, the Trump administration would have no leverage over it. (Except possibly the threat to end its tax exemptions, which would be unlikely to survive in court.)

Without federal funding, of course, even Harvard would struggle to afford certain vital scientific and medical research, which is why I hope they win. But I also hope that they’re serious when they say that they plan to “broaden the intellectual and viewpoint diversity within our community.” I very much doubt it, though.

(Take my views on that with a grain of salt, though: as I’ve often said, no matter how much I publish or where I publish it, I am, as a vocal Christian and disposition ally if not programmatically conservative, absolutely unemployable outside the Christian college/university world. So I have a beef.)

The letter from Harvard’s counsel makes two main arguments, both of which will probably be adjudicated in court: that Harvard has already been making the changes to its institutional culture that the Executive Branch is demanding — which is interesting as an acknowledgment that changes need to be implemented — and that the government cannot cut funding without due process. We’ll see whether the courts endorse or reject those claims. I’ll be watching closely.

UPDATE: I like this from the WSJ editorial board:

The Supreme Court has repeatedly held that the government may not use federal benefits or funds to coerce parties to surrender their constitutional rights. This is what the Administration is doing by demanding Harvard accede to “viewpoint diversity.”

The Administration is also overstepping its authority by imposing sweeping conditions on funds that weren’t spelled out by Congress. The Justices held in Cummings (2022) that “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously” to ensure the recipient “voluntarily and knowingly accept[ed] the terms.”

Congress can pass a law to advance Mr. Trump’s higher-ed reforms, such as reporting admissions data. But the Administration can’t unilaterally and retroactively attach strings to grants that are unrelated to their purpose. President Trump has enough balls in the air without also trying to run Harvard.

And this:

The demands were designed to blow up negotiations, not move the two parties closer to a deal, said Jeffrey Flier, a former dean of the Harvard Medical School and member of the Council on Academic Freedom, which has been working toward expanding viewpoint diversity on campus.

“You can’t suddenly turn a switch and things change overnight,” he said. Many in the Trump administration “have said that they don’t think the institutions can be reformed from within, and they need to be burned down and rebuilt from the edges.”

This sounds right — but what does “burned down” mean? Presumably not closed; I guess it means a complete organizational restructuring, with all-new top administrators and a replacement for the Harvard Corporation. Presumably also this new leadership would restructure the academic programs of the university. But perhaps no one in the Trump administration is thinking that far ahead. This may be not a plan but rather just another example of what Steve Bannon calls “flooding the zone with shit.”

If anyone associated with the administration does have a plan, though, it would definitely be Christopher Rufo.

UPDATE 2: This from John O. McGinnis provides some vital long-term context:

Ironically, the left, now alarmed by the federal government’s intrusive reach, bears direct responsibility for crafting the very legal weapons wielded against the universities it dominates. Almost four decades ago, progressive legislators demanded sweeping amendments to civil rights law, expanding federal oversight over higher education. The sequence of events reveals a cautionary tale of political hubris: progressive confidence that state power would reliably serve their ends overlooked the reality that governmental authority, once unleashed, recognizes no ideological master. Today’s circumstances starkly illustrate how expansive federal control over civil society, originally celebrated by progressives, returns to haunt its architects. The left’s outrage ought to focus not on this particular administration but on its own reckless empowerment of the state.

And this from Edward Frame:

Yet for all its courage, Harvard’s response stopped short of making the argument that would best protect the values for which it was fighting. It defended the university’s independence without explaining why that independence deserves protection. It invoked values like “pluralism” and “inquiry,” but it did not fully explain why those values are essential to a liberal democratic society. The letter therefore missed an opportunity to articulate what a university is for — not just to students or donors, but to the country. And this matters, because Trump’s attack against this and other universities is not only about the balance of power between universities and the government. It is, at bottom, about the legitimacy of higher education as a public good.