Last week, for more than two hours inside a Boston courtroom, a federal judge heard oral arguments in Harvard University’s lawsuit challenging President Donald Trump’s restrictions on its federal research funding. Over $2 billion is at stake in the lawsuit, along with vital lines of scientific inquiry, research jobs and, most of all, the question of a private institution’s autonomy.
The arguments heard were for summary judgment, which means both sides agree on the facts but disagree on how the law applies to those facts. Neither Harvard nor the Trump administration dispute that the president made certain unprecedented written demands to the university, which were accompanied by unprecedented threats if they refused to comply.
Harvard refused to comply, and sued instead.
If the high court’s conservative majority further empowers Trump’s edicts under their misguided “unitary executive theory,” which holds that the president has absolute control over the entire executive branch, it’s possible our 249-year history of ideological freedoms will come to an end.
The party that loses summary judgment will appeal, and the final disposition will likely, eventually, come from the Supreme Court. Such a ruling will have lasting consequences. If the high court’s conservative majority further empowers Trump’s edicts under their misguided “unitary executive theory,” which holds that the president has absolute control over the entire executive branch, it’s possible our 249-year history of ideological freedoms will come to an end.
The battle has been brewing since April, when the Trump administration, ostensibly seeking to reduce campus antisemitism following widespread protests over Gaza, threatened to withhold billions in federal funding from Harvard, place a lien on university assets and put academic departments in receivership unless Harvard agreed to a long list of demands:
- Exclusively promote faculty committed to Harvard’s mission and Trump’s viewpoints;
- Submit the university to a Trump administration review of “viewpoint diversity;”
- Scrutinize any “programs and departments” that might, in Trump’s judgment, fuel “antisemitic harassment;”
- Submit all faculty to outside review for alleged “plagiarism;”
- Submit to a comprehensive hiring and review audit conducted by the federal government;
- Implement a comprehensive mask ban and suspend anyone who wears a mask;
- Report to the federal government on any faculty members who “discriminated against” Jewish or Israeli students;
- Screen student applicants to reject those with viewpoints “hostile” the policies of the Trump administration and Israel;
- Establish outside review for Harvard programs that reflect “ideological capture” — meaning programs where classroom messaging does not reflect Trump-supportive dogma;
- Diminish the influence of its own professors and faculty over the university;
- Establish “merit based” hiring and admissions policies that please the Trump administration.
Oral arguments were both testy and basic. Michael Velchik, the lone Justice Department lawyer arguing the motion, asserted that the administration “has the power to decide” where it will spend taxpayer money, and that “the government does not want to fund research at institutions that fail to address antisemitism to [its] satisfaction.” According to Velchik, when Harvard refused to go along with Trump’s demands, he was free to terminate any and all contracts with the university. In other words, the federal government can terminate or withhold funds under a contract for any reason at all, even if that reason violates free speech, the right of free association or any other rights protected under First Amendment.
Steven Lehotsky, Harvard’s counsel, countered that Trump’s attempts to control Harvard, including telling the university what it can teach and how it can teach it, represents Trump’s blatant “and unrepentant” violation of the First Amendment. The Supreme Court has long held viewpoint discrimination to be such a serious violation of the First Amendment that it is treated as “presumptively unconstitutional.” Lehotsky argued plainly that “It’s the constitutional third rail, or it should be, for the government to insist it can engage in viewpoint discrimination.”
Trump has been consistent in his belief that he can punish speech and political conduct he doesn’t like, notwithstanding clear and unequivocal legal precedent to the contrary. He has applied the same strong-arm tactics to boardrooms and corporations, national media outlets, law firms and, most recently, comedians. If the Roberts court continues to enable him, Trump could extend the same reasoning to imprison or otherwise punish anyone who criticizes him, following the same authoritarian playbook that produced Nazi Germany, Viktor Orban’s Hungary and Vladimir Putin’s Russia.
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Even if Harvard allowed the expression of antisemitic views on campus — despite a strong Jewish presence among Harvard faculty — there still has to be some nexus, or some connection, between what the government is trying to fix (antisemitism) and the methods it uses to fix it. Judge Allison D. Burroughs went to the heart of this concept when she asked Trump’s counsel to explain the relationship between antisemitism and cutting off unrelated cancer research funding, noting that the president is “not taking away grants from labs that have been antisemitic.”
An amicus brief filed in the case by Jewish scholars also points out that Trump routinely uses “antisemitism” as a ruse to attack freedom of speech, freedom of thought and freedom of association. As noted in their brief, many Jewish scholars reject the notion that being Jewish “requires adherence to a specific conception of Zionism or support for the Israeli government or its policies and practices.”
Judge Burroughs noted that if Trump, or any federal administration, could punish a university without due process simply because they don’t like its politics, message or the substance of its curriculum, the constitutional consequences would be “staggering.”
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At the heart of the case are the most fundamental questions one can ask about the relationship between the government and the governed: Under the First Amendment, can the federal government control what is taught in the classroom and what is said on university campuses? Can the federal government withhold federal funds if it doesn’t like what it hears, or doesn’t agree with the viewpoints expressed?
If the Supreme Court eventually answers no, then our Constitution stands. Trump will join over two centuries of presidents who have had to grin and bear it when students called them ugly names and protested their policies. And who knows — Trump could even learn why the framers made free speech and association the very first amendment to the Constitution.
But if the answer is yes, the First Amendment, under the watch of the Roberts court — will fall, and then there will be little to no reason to believe any other constitutional protection will stand. Trump will forcibly insert his right-wing ideology onto campuses, in boardrooms and throughout legacy media nationwide. Such a decision would be catastrophic, serving only a madman’s lust for power and revenge — and causing America’s democracy to cease to exist.
