Like many of its conservative alumni, I have a complicated relationship with Harvard.
I grew up in a small town in Kentucky, where I went to public school. I attended college at a small Christian university in Nashville. I never had a thought that I could attend Harvard Law School. But friends urged me to try.
When I got in, it was so shocking that it felt miraculous. I knew it would change my life — and it did. It gave me some of my closest friends, it gave me career opportunities I couldn’t previously fathom, and it kindled in me a love for constitutional law.
At the same time, the school had profound problems. The student culture was remarkably intolerant and contentious. This was the height of early 1990s political correctness, and I was sometimes shouted down by angry classmates.
In 1993, GQ published a long report from the law school called “Beirut on the Charles,” and it described a place that “pitted faculty members against faculty members, faculty members against students” and where students were “waging holy war on one another.”
The more things changed, the more they stayed the same. In the 30 years since my graduation, the school has continued to change lives, and it has maintained one of the least tolerant cultures in American higher education.
For the second year in a row, the Foundation for Individual Rights in Expression (where I served as president a number of years ago) has ranked Harvard last in the country in its annual free speech rankings. The environment, FIRE determined, was “abysmal.”
In 2023, the Supreme Court held that Harvard had engaged in unlawful racial discrimination in admissions. There was overwhelming evidence that Harvard discriminated against Asian American applicants.
In addition, Harvard also responded horribly to the unrest that swept campus after the Hamas terror attacks on Oct. 7, 2023. Last summer, a federal judge appointed by Bill Clinton described the university’s response to alleged antisemitic incidents as “at best, indecisive, vacillating and at times internally contradictory.”
You might think that this record of censorship and discrimination would mean that I’d stand up and cheer at the Trump administration’s decision to withhold billions of dollars in federal funding from Harvard unless it made radical changes in policy and governance.
But I’m not pleased at all. The Trump administration has gone too far.
In an April 11 letter, the administration informed Harvard that it had to enact a series of systematic reforms to retain its access to federal funds. Among other things, it demanded that the school change its admissions and hiring policies to increase viewpoint diversity and demanded that it screen international applicants to “prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence.”
The administration also demanded that Harvard “shutter all diversity, equity and inclusion (DEI) programs, offices, committees, positions and initiatives, under whatever name, and stop all DEI-based policies,” and that it reform its governance, leadership and disciplinary processes.
The Trump administration is also reportedly considering revoking Harvard’s 501(c)(3) status, which would mean that donations to the school would not be tax deductible, perhaps dealing the university (as rich as it is) a crippling financial blow.
On April 21, Harvard fought back. It filed a lawsuit against the Trump administration, claiming that its demands violated the Constitution, the Administrative Procedure Act and federal civil rights statutes.
At the core of the complaint is a simple idea: No matter what you think of Harvard’s conduct, it still enjoys constitutional rights, and the Constitution does not permit the president to unilaterally wield the power of the purse to punish his political enemies.
To understand why even critics of Harvard should support Harvard’s lawsuit, perhaps an analogy is helpful. Imagine that there is strong evidence that a person committed a crime. Perhaps they shoplifted from a liquor store.
And then, months later, you see a police officer beating that person in the street. When you ask why, the officer responds that the man stole from a store and is getting exactly what he deserves.
Even a nonlawyer could immediately identify two problems. First, why are you punishing this person without a trial? Second, the punishment for shoplifting is a fine or short jail time, it’s not a public beating. Demanding that the officer stop his unilateral punishment doesn’t excuse the man’s theft, but it does restore respect for the law.
If Harvard did fail to protect Jewish students from harassment, for example, Title VI of the Civil Rights Act would permit the federal government to take action against Harvard (and in fact the Biden administration opened a civil rights investigation of Harvard in late 2023), but as Harvard’s complaint notes, Congress “set forth detailed procedures that the Government ‘shall’ satisfy before revoking federal funding based on discrimination concerns.”
The Trump administration flouted all those procedures.
In addition, as much as any person might reasonably object to the overwhelming leftward tilt of Harvard’s faculty and student body, Harvard’s ideological composition is a choice for Harvard to make, not the federal government.
Conservatives should consider a counterfactual. Should the federal government be able to withhold all federal funding from a private Christian college (including, say, tuition dollars from the G.I. Bill or Pell Grants) unless it hires more Muslim faculty or admits more atheist students?
The Trump administration claims to be aiming at antisemites, but it’s hitting the innocent. Federal law requires that defunding efforts be targeted against the “particular program” where “noncompliance has been so found.” But, as the complaint notes, there is no “rational connection between antisemitism concerns and the medical, scientific, technological, and other research it has frozen.”
Trump is punishing people and departments that had absolutely nothing to do with any of Harvard’s alleged unlawful actions. And by cutting back on vital research funds, he’s hurting America to punish Harvard.
The arguments I’m making are the same ones I made time and again during my legal career in dozens of lawsuits against universities to protect conservative and religious students and professors from progressive censorship and discrimination. This is, as the legal saying goes, “black letter law” — there is very little legal ambiguity here.
This isn’t a progressive legal argument. Indeed, if you scan the signature block of Harvard’s lawsuit, it’s a virtual who’s who of conservative attorneys. I recognize most of the names, and I personally know a number of the lawyers.
Harvard’s lawyers include Robert Hur, the special counsel who investigated Joe Biden’s retention of classified documents, and famously kicked off a national conversation about Biden’s age and mental acuity in early 2024 when he described Biden as a “well-meaning, elderly man with a poor memory” who possessed “diminished faculties in advancing age.”
The attorneys for the lead firm on the case include a former Antonin Scalia law clerk, a former Clarence Thomas law clerk and Ted Cruz’s former chief counsel. Harvard’s lawsuit — at its core — isn’t a progressive attack on a Republican president, but rather a constitutionally conservative response to authoritarian abuse.
Harvard’s defense of the Constitution doesn’t absolve it of its own sins, but the defense of the Constitution often comes through imperfect vehicles precisely because shrewd authoritarians often choose unpopular targets.
It’s hard to rally mass movements to support illegal immigrants, large law firms or elite academic institutions. “Hands off Harvard” isn’t exactly a slogan that will rally disaffected steelworkers to the Democratic side.
American free speech law has been defined when unpopular people or unpopular institutions stand up against the censorship of the age — whether it’s a pair of Jehovah’s Witness sisters who refused to say a Pledge of Allegiance during the height of World War II, or faculty members who refused to sign certifications that they were not members of the Communist Party during the middle of the Cold War.
While we can applaud Harvard’s decision to confront Trump, the university still needs reform, given its recent history. Harvard’s stand might not make it the constitutional hero that we want, but it is the constitutional hero we need.
