As you know, in April Harvard sued the government for taking away $2.2 billion dollars in research funding and fining the university $500 million dollars; this was Trump’s response to various infractions supposedly committed by the university, including creating a climate of antisemitism. Trump et al. demanded a number of changes to the university, including an “overseer” to determine whether Harvard was complying with his demands.
Yesterday, a federal judge ruled that the government had no business doing this. This ruling was more or less expected, but it will surely be litigated up to the Supreme Court. From the New York Times (archived here):
Harvard University won a crucial legal victory in its clash with the Trump administration on Wednesday, when a federal judge said that the government had broken the law by freezing billions of dollars in research funds in the name of stamping out antisemitism.
The ruling may not be the final word on the matter, but the decision by Judge Allison D. Burroughs of the U.S. District Court in Boston was an interim rebuff of the Trump administration’s campaign to remake elite higher education by force.
Harvard’s case centered on its research funding, and the university contended that the administration had compromised its First Amendment and due process rights when it sought to strip it away. The judge’s decision could give Harvard new leverage in its settlement talks with the White House.
Although the ruling was a milestone for Harvard, the only university to sue over the administration’s targeted assault on its research funding, President Trump had vowed to appeal any decision that went against him. His administration has spent months seeking to pressure Harvard in ways beyond research money, and while Judge Burroughs’s ruling may not put an end to that campaign, her opinion was a bracing rebuke.
“We must fight against antisemitism, but we equally need to protect our rights, including our right to free speech, and neither goal should nor needs to be sacrificed on the altar of the other,” Judge Burroughs wrote in an 84-page ruling. “Harvard is currently, even if belatedly, taking steps it needs to take to combat antisemitism and seems willing to do even more if need be.”
She added, “Now it is the job of the courts to similarly step up, to act to safeguard academic freedom and freedom of speech as required by the Constitution, and to ensure that important research is not improperly subjected to arbitrary and procedurally infirm grant terminations, even if doing so risks the wrath of a government committed to its agenda no matter the cost.”
As a part of the decision, Judge Burroughs said the Trump administration could not issue new blockades on Harvard’s federal research funding “in retaliation for the exercise of its First Amendment rights, or on any purported grounds of discrimination without compliance with the terms” of civil rights law.
. . . . The New York Times reported in July that the university was open to spending $500 million to resolve the matter, but that Harvard was seeking an array of provisions to protect its independence.
Although the university and the administration have continued to move toward a potential agreement, they have not reached a settlement. Mr. Trump, who has taken a special interest in the financial terms of pacts his administration has reached with universities, said last week that he wanted “nothing less than $500 million from Harvard.”
This is surely the right decision. Although Trump’s blackmail did partly motivate Harvard to act, I don’t think that freezing research funds of professors who had nothing to do with the charges is the ethical way to go. In the meantime, Harvard will continue to spend money litigating this affair, and will almost certainly some to some compromise understanding with the government.
You can see Judge Burroughs’s full ruling here.
As a Harvard alum, I get messages from the University, and here’s announcement from the President of Harvard:
I wonder what Garber will say if Harvard eventually comes to a settlement with the Trump administration.
Good news for now. Thanks. But maybe a reader whose grant has been threatened could tell us how this legal limbo state impacts boots on the ground faculty, post docs and grad students. Have payments stopped while this legal action works its way through the courts (the equivalent to shuttering a lab and firing all staff)? Do payments continue until it is resolved (an uncertain world in which staff may seek to leave for a more stable position)? I recall in NASA grants that the universities apparently had a pretty big “float” which made them less than prompt in billing NASA for work done. So maybe they have a financial cushion of six or so months.
Anyway, what is the immediate impact to the labs from all of this? Profs, post docs, current and future grad students?
Steven Pinker made a brilliant argument that the punitive measures – whose sole intent ..(?)… was counter-antisemitism – were themselves “anti-semitic” in their own way as they cut into research projects led by Jewish faculty. But that of course extends to all roles – student, tech, admins, etc.
I found that to just break any spell that antisemitism was finally being cast out.
Please forgive me if readers here or PCC(E) made the same point – I simply did not catch it! It was a short video clip in which Steven Pinker said it.
BTW I was paraphrasing above – Pinker said only about 10 words – but I grasped his point, so sort of built it out a bit.
Good news so far. I was pretty sure that the Trump administration had overreached in that (1) it was rescinding grants already granted and in that it (2) didn’t provide Harvard an opportunity to appeal or offer solutions before having the grants rescinded. It seems that the government was not giving Harvard the required due process. We’ll see how the Supremes deal with this case. I also wonder—even if a Harvard wins the case in its entirety—whether the Trump administration might limit or prejudice future grants to Harvard, grants that are not already on the books. Of course the Trump administration is time-limited, but Harvard is not.
Why do you think that the trump administration is time-limited, Norman? Please see Anne Applebaum’s “Autocracy Inc”, specifically putin.
I read her book. It’s good. It’s scary. I don’t think that Trump will be able to transform everything into his own image in four short years, or even in eight if Vance succeeds him. The American people are not living in the same kind of media desert as in Putin’s Russia, or in Turkey, or in Hungary, and I expect that their basic good sense will save the day. I don’t think that Americans are immune to autocracy, but I don’t think that they are all that vulnerable either. (Yes, Applebaum gives me pause.)
The mid-terms are coming up, and Trumpism will be tested. If the Democrats take the House or the Senate, he will lose a good deal of power overnight. We shall see. So far, the courts are doing their job at curbing Trump’s excesses. He hasn’t taken them over completely. Yet. I’m still a youth of 68, so I hope to live long enough for a turnaround. 🙂
Comment by Greg Mayer
I am really surprised at how stunningly complete Harvard’s victory is in this summary judgment. This is an, admittedly, early level, but the court found for Harvard on constitutional, Title VI, and Administrative Procedure Act (APA) grounds, vacated the actions of the Trump administration, and ordered permanent injunctions on doing anything like it again. If there’s one reason for an action, courts don’t usually address other possible reasons, but the judgment manhandles the Trump administration’s arguments up and down the scale. The court found that Trump had engaged in First Amendment violations, that it violated the clear statutory requirements of Title VI (anti-discrimination law), and that it acted arbitrarily and capriciously. The only Harvard complaint it did not uphold is that Trump’s actions were not authorized by any law (“ultra vires” in legal terms), but on the quite reasonable grounds that ultra vires claims proceed only when there is not some other avenue for granting judicial relief, and in this case such avenues are available. (Harvard had made the ultra vires argument only “in the alternative”, i.e. if it’s other avenues of relief were deemed unavailable.)
As I was reading the decision, I noticed that the following or similar phrasing occurred repeatedly in its recitation of the material facts:
To me this was a sure sign that the court had taken note of Trump’s complete failure to follow Title VI’s explicit procedures on investigating, finding, and remedying illegal discrimination. A lawyer friend had told me that what had been done to Harvard was “obviously illegal”, and the court agreed. The court writes:
The court also found that Trump’s actions had been “arbitrary and capricious” under the APA, which strongly favors deference to an agency’s decision. Harvard thus had a high legal bar to cross, and the court found that it did so easily:
After the foreshadowing of the statutory issues in the recitation of facts, I was surprised that the court went on to fully explore the First Amendment issues, but it did, again finding for Harvard, agreeing that there had been retaliation, unconstitutional conditions, and unconstitutional coercion on the part of the government.
Trump had two main arguments against Harvard’s motion for summary judgment. First, that most things of which Harvard complained were not “final agency actions”, but part of a “negotiation”, which is not subject to judicial review. The court rejected this, but it seems to me that even if the various threats and freeze orders are not considered final actions, they would still violate statute, procedure, and the Constitution, and then fall subject to the “ultra vires” complaint (which Harvard argued for in the alternative). Second, Trump argued that the only thing subject to judicial review, the “termination letters”, were not in the jurisdiction of the District Court, but were a contract dispute properly put before the Federal Court of Claims, a court of limited jurisdiction and authority.
This second issue was muddied by a rather divided “shadow docket” ruling by the Supreme Court concerning the jurisdiction of the Claims court. The district court took note of this Supreme Court ruling, and decided that it lacks jurisdiction over the “arbitrary and capricious” claims with regard to the “termination letters”, these being contractual, and thus not within its jurisdiction, but that the constitutional and statutory matters were in its jurisdiction, the termination letters being vacated on the grounds of violations of these latter matters. The court went on to write:
GCM
(This is longer than the comment length guidelines, but Jerry gave it the OK.)