Harvard is right to fight

The administration is trampling law in its attempt to force the college to submit -- and it's sad to see many on the right throw previous principles overboard.

No civil rights law on the books requires “viewpoint diversity” in university admissions or hiring or creates a protected class of students or faculty based on ideological views.

No law of any sort entitles the federal government to reach into private universities to restructure their governance and disciplinary procedures to "improve [their] viewpoint diversity and end ideological capture" — whatever that means — or to require college brass to intervene to restructure named departments and schools that federal overseers designate as ideologically out of line — even, incredibly, a divinity school.

These are all things that the Trump administration is demanding of Harvard on pain of massive peremptory funding cutoffs — cutoffs that appear to violate a number of legal safeguards intended to prohibit arbitrary or spiteful defunding without due process.

I'm glad that Harvard is fighting back, and I hope other institutions do too. What makes my heart sink is to see conservative and even reputedly libertarian legal and policy thinkers who spent years resisting Washington’s heavy hand in university governance turn into cheerleaders now that they see “their” side doing it.

I wrote last month about the Columbia case, in which Trump’s appointees went for a test run against one prestige university and got it to fold its hand.

Central to the technique, with Columbia as with Harvard, was the tactic of “punishment first, verdict later.” The confrontation would begin with the fund cutoff, and the institution would then be in a position of weakness during the ensuing negotiation over what it would do to get out of the jam. But as University of Michigan law professor Sam Bagenstos pointed out at the time, the law specifically prohibits that way of proceeding.

This ‘“immediate cancellation” violates the law. If the Administration thinks Columbia has violated Title VI by being deliberately indifferent to antisemitic harassment, it has to give Columbia a chance for a hearing first, make findings on the record, and wait 30 days.

Even then, the suspension or termination of funds can’t extend beyond “the particular program, or part thereof, in which such noncompliance has been so found.” Congress broadened Title VI in 1988 to provide institution-wide coverage, but it left in place the “pinpoint provision” limiting any *fund cut-off* to the “particular… part” of a program that’s not in compliance.)…

There’s no free-floating “we don’t like what’s going on on campus” power to cut off federal funds.

Before a funding cutoff, in other words, the law prescribes steps that must include clear specification of the charges, a chance for the accused institution to respond, and written findings (which can then be challenged in court). It also protects the universities’ right not to suffer cutoffs in unrelated programs: even if a civil rights violation is found to have taken place at (e.g.) an undergraduate library, that doesn’t mean it’s lawful to cut off funds at the hospital or physics lab.

No one is arguing that there can never be strings on grants. But the courts have made it clear, in rulings based on the doctrine of unconstitutional conditions, that Washington may not use the threat of defunding to extract the surrender of constitutionally protected rights such as those protected by the First Amendment. Those are very much at stake here.

I’ll let others address the claims that the university violated the rights of Jewish students by tolerating a hostile Gaza-protest environment and in other ways. (A court would be the best place for those claims to be aired and adjudicated, no?) I will however say that, contra the Trump demands, no civil rights law requires private universities to cease all so-called DEI programs. It’s true that recent Supreme Court rulings remove the Court’s previous approval of “reverse” discrimination practices in areas like admissions, and universities that have had such practices will need to end them. But courts have not yet sorted out what the implications are for a wide array of so-called softer DEI practices, such as employee trainings, that do not necessarily deprive any student or faculty member of opportunity. In my view, it’s quite unlikely that courts will find all of those banned by law — which means they may also not be banned by presidential decree or arm-twisting.

And should a court find discrimination against individual Harvard students or groups of them, it’s very unlikely to order remedies that police “viewpoint diversity” or “ideological capture,” require the university to elevate some ideological viewpoints and deprecate others, or otherwise slash deeply into traditional tenets of academic freedom. Courts are usually at pains to craft remedies that respect constitutional rights and liberties, rather than trample on them.

I don’t expect much better of Donald Trump or his administration; since Inauguration Day in January, both have behaved with utter contempt for the rule of law and the legal and constitutional rights of their opponents. But I did expect better from some of the conservative and even libertarian legal and policy figures I’ve known over the years who talked a good game about keeping Washington from ruling universities with a heavy hand, who defended private ordering and subsidiary institutions as a bulwark against absolutism. Now some of them are defending, rationalizing and cheerleading Trump, even when he added fuel to the fire by suggesting Harvard’s tax exemption should be revoked on the strength of the notion (which is not, in fact, the law) that institutions cannot be tax exempt unless they serve what the ruler regards as the public interest.

In any other circumstance, this would have drawn justified howls of rage from conservative and libertarian law types. I remember, over decades of contact with these issues, that they and I used to dread any possible extension of the Bob Jones University precedent (upholding the revoking of a tax exemption for racial discrimination) beyond the narrow facts of that one case. It was very obvious that the right of religious and conservative institutions to tread their own path was at stake -- indeed, a few progressives had already called for stripping the tax exemptions of Catholic universities because of that church's stands on questions like female ordination.

Little did I expect them to take forty years of professed principle and throw it out the window in a sudden turnabout in the party line.