Monday, September 08, 2025
Thoughts on Harvard
I finally had a chance to read the district court opinion granting summary judgment and a permanent injunction to Harvard and its AAUP chapter on First Amendment retaliation, unconstitutional conditions, and Title VI claims. Some thoughts:
• The court rejected the government’s argument that it is acting on its purported interest in stopping antisemitism. The court emphasized: 1) statements by President Trump and administration officials ignoring antisemitism and Jewish students and emphasizing all the ways they disliked how Harvard operated and how it refused to settle; 2) the government’s failure to investigate or acknowledge Harvard’s efforts to correct and change its policies and actions with respect to antisemitism, which should have been part of the government calculus of whether it could strip funding; 3) the timing of the various funding attacks, which followed protected expression such as Harvard’s lawsuit and its adversarial response to earlier letters.
• The opinion should put Columbia and Interim President Claire Shipman to further shame. Recall that Shipman made a big show of insisting that Columbia “did not waver from” its insistence that it retain control over academic and operational decisions and that the federal government “will not dictate what we teach, who teaches, or which students we admit,” a conclusion belied by the numerous provisions of the agreement that surrendered that very control over what they teach, who teaches, and which students learn. In her opinion, Judge Burroughs described everything the Administration demanded of Harvard–much of it identical or substantially similar to what Columbia gave it–and rejected it as an attempt to dictate and control Harvard’s constitutionally protected decisions about its academic decisions.
• The court continues to elide the difference between antisemitism simpliciter and antisemitic harassment or discrimination. This misses an essential piece of the essential dispute about whether Harvard (or any of the targeted schools) has done anything wrong. Title VI precludes the latter and, if proven, could provide a legitimate basis for the government to target university funding. The former may be constitutionally protected, such that using it as a basis for targeting the university would violate the university’s rights (to allow constitutionally protected speech in its expressive space) and may equate to jawboning the university to silence disfavored student speech. Saying “Harvard has been plagued by antisemitism in recent years and could (and should) have done a better job of dealing with the issue” begs the question of whether some of the protests and other activities that Harvard supposedly did not silence were constitutionally protected and thus whether Harvard actually could have “dealt with” the issue and how.
Burroughs seemed to be headed in this direction in the final two paragraphs–she brings up Brandeis and more speech and says “combatting antisemitism cannot be accomplished on the back of the First Amendment.” The line fits the concern–combatting antisemitism cannot ignore that the First Amendment protects some antisemitic speech, however distasteful, and thus prevents the university from taking certain steps. But that is not what she meant. She argued that the government cannot use its desire to combat antisemitism as a figleaf to attack Harvard’s academic freedom, when Harvard was trying to combat antisemitism (albeit belatedly). She never acknowledges the limits on what steps Harvard could take.
This is a great outcome and and important opinion that–as several people have said–may be Calvinballed away, especially on the jurisdictional issues. And it recognizes and calls out how the government has used “antisemitism” as a false cudgel to retaliate against an institution for its protected speech.
Posted by Howard Wasserman on September 8, 2025 at 09:31 AM in First Amendment, Howard Wasserman | Permalink
Comments
The comments to this entry are closed.