Tag: unconstitutional

Last Friday, three federal agencies sent a demand letter to Harvard University laying out conditions for the university to continue receiving federal funds. The letter is unprecedented in its scope. It would essentially render Harvard a vassal institution, subjecting much of its corporate and academic governance to federal directives. 

If Harvard acceded to these demands, faculty hiring, student admissions, student and faculty disciplinary procedures, university programming decisions, student group recognition processes, and much more would be transformed to align with the government’s ideological preferences.

Among other things, the university would be required to:

• Abolish ideological litmus tests in hiring and admissions practices and take steps to ensure viewpoint diversity in the faculty and student body. How Harvard can take both steps simultaneously and also commit to merit-based hiring and admissions, another directive, is unclear. FIRE opposes ideological litmus tests, but you can’t abolish them by trading one litmus test for another.
• Deny admission to international students who are “hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence.” These values go undefined. And, as any historian or Supreme Court observer would know, they’re subject to intense debate and varied interpretations. Ironically, this is also an ideological litmus test of the sort prohibited by the directive that Harvard abolish such tests.
• Audit certain disfavored academic departments. The mandatory audit would include investigations into individual faculty members and would require Harvard to work hand in glove with the government to sanction faculty members who allegedly engaged in anti-Semitic discrimination or otherwise “incited students to violate Harvard’s rules.” The federal government’s definition of anti-Semitism incorporates the IHRA definition, which Harvard recently adopted and FIRE has long criticized as violating First Amendment standards.
• Discontinue DEI. This would include shuttering all “programs, offices, committees, positions, and initiatives” relating to “diversity, equity, and inclusion.” These terms also go undefined in the letter, and while FIRE has been critical of many university DEI programs for their tendency to chill and censor speech, not all of them do, and many programs are within a university’s prerogative to create. This is especially true at private institutions.
• Reform student disciplinary processes and procedures. The letter demands Harvard not fund or recognize any student group that “endorses or promotes criminal activity, illegal violence, or illegal harassment.” This amounts to a federal requirement of viewpoint discrimination. While many would find these categories of speech abhorrent, the categories go undefined and would nevertheless be protected by the First Amendment so long as the speech stays confined to endorsement and promotion and the student groups do not themselves engage in any criminal activity, illegal violence, or illegal harassment. The letter also identifies specific student groups that must lose recognition and funding.
• Implement a comprehensive mask ban. Masks can be used by criminals to commit crimes, the sick to stay healthy, and, yes, protesters to remain anonymous. A blanket mask ban is an overbroad requirement that infringes on individuals’ constitutional right to anonymous speech.
• Risk double jeopardy. The letter demands that Harvard “carry out meaningful discipline for all violations that occurred during the 2023-2024 and 2024-2025 academic years.” To the extent any student was already tried for these alleged violations, this requirement would amount to “double jeopardy,” violating the venerated and centuries-old principle of fundamental fairness, enshrined in the Fifth Amendment, that says no individual should be tried for the same infraction twice.
• Generally reform corporate governance structure and practices, including by “reducing the power held by students and untenured faculty” in its current structure. How Harvard governs its academic programs, and who should have a say in that governance, is up to Harvard, not the federal government. The First Amendment and basic principles of academic freedom require no less.

In addition to these demands, the university would be required to undergo frequent and highly intrusive audits to ensure compliance. In short, the federal government would effectively serve as president and provost of Harvard University.

The ostensible justification for these demands stems from the government’s belief that Harvard has allowed for a hostile environment for Jewish students in violation of Title VI of the Civil Rights Act. But federal law also dictates specific procedures for adjudicating alleged noncompliance — procedures the government circumvented here. 

If allowed to stand, the government could revoke federal funding from any institution regardless of the merit of the government’s allegations. This processless approach is a loaded gun for partisan administrations to target institutions and individuals that dissent from administration policies and priorities.

What Harvard does — for better or worse — others follow. Those of us who support free inquiry, academic freedom, and fair procedures on campus — not to mention institutional autonomy — can hope that maybe its action will inspire other institutions to grow a backbone.

It’s true that institutions take federal funding voluntarily. But it’s also true that the government cannot condition federal funding on institutions giving up their autonomy and constitutional rights. A requirement that Harvard relinquish its authority to guide core academic programs certainly violates its free speech and academic freedom rights, as well as those of its students and faculty.

It’s also true that Harvard doesn’t have clean hands. For the past two years, it has sat at the bottom of FIRE’s College Free Speech Rankings, and it may well have violated Title VI by failing to meaningfully respond to conduct creating a hostile environment for Jewish students on campus. But just as with individuals, we don’t punish institutions based on allegations alone. And we cannot restore free speech with censorship.

This isn’t the first time FIRE has objected to a presidential administration using federal civil rights law to violate rights. Under the Obama and Biden administrations, the federal government weaponized Title IX to erode campus due process and free speech protections. The fight over the Obama/Biden rules lasted over a decade, and has been largely resolved (for now) in court and with President Trump’s Department of Education promulgating federal rules that protect free speech and due process rights in campus sexual misconduct investigations.

That’s why we’re deeply concerned that the administration doesn’t recognize that what was wrong and unlawful in the Title IX context is also wrong and unlawful in the Title VI context. Indeed, these federal requirements go even further than what we saw in the Title IX context.

Fortunately, Harvard is fighting back. Yesterday, Harvard President Alan Garber wrote in an open letter:

The administration’s prescription goes beyond the power of the federal government. It violates Harvard’s First Amendment rights and exceeds the statutory limits of the government’s authority under Title VI. And it threatens our values as a private institution devoted to the pursuit, production, and dissemination of knowledge. No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.

Garber’s response didn’t sit well with the federal government, which soon announced it was freezing $2.2 billion in grants to the university. The fight will continue.

What Harvard does — for better or worse — others follow. Those of us who support free inquiry, academic freedom, and fair procedures on campus — not to mention institutional autonomy — can hope that maybe its action will inspire other institutions to grow a backbone.

There is some evidence of that already. On the same day Harvard announced it was rejecting the administration’s demands, Columbia University’s new acting president announced Columbia would not agree to any federal demands that “require us to relinquish our independence and autonomy as an educational institution.”

In addition to Columbia, the administration also froze grants at Cornell University and Northwestern University and is investigating nearly 60 other universities.

Behavior that gets rewarded gets repeated. Until more universities stand alongside Harvard in opposing the government’s unconstitutional demands, we can be sure these demands won’t be the last.