Harvard v. Trump

The endless attacks that the Trump administration has launched against Harvard, and by extension other great American research universities, have reached a new intensity in recent days. Its April 3, 2025, letter to Harvard, perhaps sent in error, contains an exhaustive list of demands intended to throw Harvard into receivership in order to turn Harvard “into a responsible recipient of federal taxpayer dollars.” That letter is part of a broad campaign that is intended to bankrupt Harvard if it does not knuckle under: “Harvard now faces $2.8–$5.5B in total annual institutional risk exposure—up to 43 percent of its adjusted operating budget—across grants, medical revenues, student aid, and potential taxes.” There is no doubt that Harvard has suffered many financial reversals on a far smaller scale, when prominent alumni and friends made their decentralized decisions on where and how to fund Harvard, which is a healthy corrective against various forms of institutional misdeeds, including those that pushed it too far in the woke direction.

Trump ignores these private responses, however, when he mounts, along with his acolytes, a public smear campaign meant to intimidate, but never to inform, whose end is to wipe Harvard out. The tenor of Trump’s remarks is found in this one outburst among many that he said to reporters in the Oval Office:

I think Harvard’s a disgrace. I think what they did is a disgrace. They’re obviously antisemitic, and all of a sudden they’re starting to behave. But tax-exempt status, I mean, it’s a privilege. It’s really a privilege. And it’s been abused by a lot more than Harvard.

Now parse this screed line by line. First, Harvard is the disgrace, but who at Harvard is disgraceful? Trump has many individuals to condemn. But, surely, not every student or faculty member at Harvard has done disgraceful actions: many Harvard faculty, students, and administrators are Jewish, and many of them were either victims of that discrimination or strongly opposed the weak response of the Harvard administration to pro-Hamas propaganda. It is instructive that Press Secretary Karoline Leavitt, in defense of Trump’s decision to sanction Harvard fingers Claudine Gay, who was (rightly) ousted by Harvard from her position as its president in January 2024. 

Leavitt’s remarks are patently overbroad and deeply offensive because they overlook that the new Trump initiatives target all Harvard’s students and faculty, including its new arrivals, none of whom had anything to do with any of those abuses. The same excessive overkill is found in Elise Stefanik’s interview, which again condemns the Gay past and not the future. Yet she cannot distinguish between the good that was done by asking an inept president to resign and the bad that will be done by exposing Harvard to savage ad hoc sanctions, far more deadly than any criminal conviction, that will reduce Harvard to a shadow of itself. The same situational blindness mars Peter Wood’s well-researched denunciation of Harvard’s inglorious past without pausing to ask whether these sanctions are justified, given their undue size and massive overbreadth. On every count, Trump’s blunderbuss approach by design tars all the people whom it is supposed to protect, which demonstrates sadly that his motivation is less about antisemitism and more about seeking to even the score with any institution whose leaders thumbed their noses at him while he was still in exile. No wonder that Harvard chose to file suit against Trump.

So, what then should Trump do to rein in his excesses? For starters, he should never impose any sanctions that punish the innocent and the guilty alike with equal fury. Instead, the President should use the Justice Department's vast powers to punish those who, as Press Secretary Leavitt stressed, are known to have violated the law. But which ones? At this point, his express train cannot target those individuals who solely adopted views that Trump (and I) regard as abhorrent. There are free speech guarantees that allow people with whom we both disagree to urge a two-state solution in Palestine, or even a one-state solution that removes Israel from the region. These remarks are too far removed from any direct action to be subject to criminal sanction. They are, at most, abstract advocacy that has to be tolerated, even by those who would deny the like privileges of speech to others. Trump cannot sanction a university for allowing constitutionally protected speech on the premises.

So take Claudine Gay, again. Is she guilty of any criminal offense for her ham-handed leadership when she did not respond forcefully to remove or discipline the offending students from Harvard? Just after October 8, 2023, a group of 35 pro-Palestinian organizations announced on their  Harvard websites that: “The apartheid regime is the only one to blame. We hold the Israeli regime entirely responsible for all unfolding violence.” But Leavitt did not announce that she supported any criminal charges against these Harvard student groups. Surely, Harvard, as owner of the premises, is not bound by the First Amendment and would have been well advised to sanction these groups for abusing the Harvard name in putting forward their outrageous lies. 

But, does she believe that Harvard engaged in illegal discrimination for not sanctioning them? It is another question entirely why she chose not to announce that the DOJ was going to bring criminal actions against these Hamas supporters who forcibly blocked or occupied campus or intimidated Jewish students for their illegal actions? Those DOJ actions pointed at legitimate targets would do far more to clear out the rot at Harvard than Trump’s proposed savage sanctions against Harvard. Indeed, after those prosecutions are brought, there is no case for imposing further sanctions against Harvard for failing to do the DOJ’s job. All she then needed to say was that the same aggressive DOJ stance applies to future acts of illegal discrimination on campus, whether Harvard agrees or not. For the same reason, there is no reason to target foreign students who are coming to Harvard for special reviews. Trump should not farm out this government task to private institutions, given its broad control over immigration under the Supreme Court’s decision in Trump v. Hawaii (2018), without singling out Harvard students for special treatment. 

Finally, there is no credible way that any IRS Commissioner can claim that Harvard is not a charitable institution because it failed to deal with admitted excesses, without first proving its case through standard procedures that require individual case-by-case IRS audits of each organization, with ample opportunity for the entity to defend itself, and including multiple routes of appeal. The same is true with any sanctions under Title VI of the Civil Rights Act. I signed along with 17 other constitutional scholars a “Statement from Constitutional Safeguards in Dealing with Columbia” noting that the Trump Administration had to make a program-by-program evaluation of the alleged violations after providing recipients with notice and "an opportunity for hearing" before cutting off funding only after its noncompliance has been established. The government must also submit a report explaining its actions to the relevant committees in Congress at least thirty days before stopping funding.  

Nonetheless, Trump ignores these procedural requirements and instead announces that receiving public funds is a “privilege” and not a right. His muddy use of language conceals a myriad of half-truths. Since the end of World War II, the federal government has long supported basic academic research under a grand plan envisioned by Vannevar Bush, who had organized the wartime research efforts on nuclear energy at Los Alamos and the Radiation Laboratory at MIT. In 1945 Bush penned a report, “Science the Endless Frontier,” that backed using public money for scientific research up to proof of principle, after which development would fall to the private sector.

The program blossomed under the Bayh-Dole Act of 1980, which allowed federal research grantees to retain patents on their research, which they could then license to commercial parties, spurring huge gains in business activities that generated tax revenues that offset the costs of government grants. Leavitt thus goes far off base when she asks Harvard to spend down its own $50 billion endowment to fund its research. That research is not a simple exercise of senseless ego gratification, but the source of great public benefit. These grant provisions are out of date, but the correct reform does not single out Harvard and instead pulls the plug on excessive sanctions and regulations against universities on such matters as animal care, age discrimination, and mandates on sex discrimination in sports. 

Trump may think he is solely in charge of running the country, but he cannot bypass laws passed by Congress to dispense justice in accordance with his one-sided views, just by denouncing bad actors at Harvard. But make no mistake; his charge is to ensure that the law is faithfully executed and not to ignore its terms whenever they conflict with his political agenda. The key challenge at the moment requires that Trump be slapped down for thinking that he runs the only branch of government that counts, as was done recently by Circuit Court Judge Harvie Wilkinson, who denounced Trump for his “shocking” neglect of duty in the Abrego Garcia case where a person was treated as a gang member without giving him a chance to prove otherwise. There is a pattern here of conscious violations of law by Trump, who seems intent on committing a raft of high crimes and misdemeanors for which, in saner times, he should and would be held constitutionally accountable.

Richard A. Epstein is a senior research fellow at the Civitas Institute. He is also the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, where he serves as a Director of the Classical Liberal Institute, which he helped found in 2013.