By refusing to capitulate to the Trump administration’s extraordinary demands, Harvard has set an important example that other universities — including those in the Bay Area — should follow.
The lesson for all universities, public and private, is clear: They must fight back with every tool at their disposal. University leaders must speak loudly in one voice, condemning what President Donald Trump is trying to do to higher education. They must refuse to capitulate to the administration’s demands. They must go to court to challenge funding freezes and cutoffs. There must be an understanding that all will fight back. The alternative is the end of academic freedom and government control of universities. This is what occurs in totalitarian countries, not constitutional democracies.
A letter – apparently sent by accident from the Trump administration to Harvard on April 11 – asked the university to grant the federal government oversight of the hiring of faculty; the admission of students; and the governing structure of the campus, its disciplinary system, its academic programs, and much more.
No university should agree to such demands.
The administration’s actions — cutting off $2 billion in federal funds and threatening to revoke the university’s tax-exempt status— are blatantly illegal.
The law invoked by the Trump administration, Title VI of the 1964 Civil Rights Act, provides that recipients of federal money cannot discriminate based on race or ethnicity. The Supreme Court has held that this requires showing “deliberate indifference” by the recipient of the federal funds. Showing this would require demonstrating that the university did not take reasonable actions in response to racist or antisemitic conduct. The law is clear that reasonable action cannot involve prohibiting speech that is constitutionally protected, but there are an array of other actions that can be taken.
Just as important, the law says that funds can be cut off only from the specific program that was found to be discriminatory. Rather than targeting a specific offending program, however, the Trump administration broadly froze funds to Harvard. Federal law is clear that before any cutoff of funds, the university must have notice and a hearing. Under Title VI, the government must give 30 days of notice to both the U.S. Senate and the House of Representatives before cutting off federal funds to any recipient. The Trump administration followed none of these procedures in its dealings with Harvard, nor with any of the other universities that have lost funding.
Federal law is also clear that the president has no authority to revoke tax-exempt status and cannot even ask the Internal Revenue Service for this to be done. Harvard and other educational institutions know they have a very strong case in court to stop the Trump administration and get funds restored. But resisting the administration is risky. Litigation costs time and money, and there is always uncertainty as to how judges will rule. Even more worrying, it is unclear whether the Trump administration would comply with court orders to restore funds. So far, the Trump administration has given conflicting signals as to whether it will comply with federal court orders. It is truly frightening to imagine the government violating the law and defying courts. We then would no longer have a government under the rule of law.
But the alternative to fighting for universities is much worse. We all learned, likely long ago on the playground, that giving in to a bully never works. What the Trump administration is doing to universities, and also to law firms, is mafia-like extortion. And those who engage in such behavior don’t stop unless forced.
This is exactly what Columbia University has learned. Unlike Harvard, it reached a settlement with the Trump administration in response to a freeze of $400 million in federal money. But these funds have not been restored. Instead, the administration has added new demands and left it uncertain when or if Columbia will see the money.
Trump’s motives are clear. First, he is seizing on the anti-elite sentiment that is dominant among his right-wing base. But he also knows that universities are places where his policies can be criticized and challenged. His administration’s actions are very much about trying to intimidate and silence critics. This is part of the playbook of every authoritarian ruler. The only way to respond is to resist — at all costs.
Erwin Chemerinsky is the dean of the Berkeley School of Law at the University of California and the author of the book “No Democracy Lasts Forever: How the Constitution Threatens the United States.”