In Trump Attack on Harvard, Punishment Before Proof

 

In Trump Attack on Harvard, Punishment Before Proof

 

The legal underpinnings of the administration’s broadsides against universities and schools stretch precedents and cut corners.

 

Jonah E. BromwichAlan BlinderSarah Mervosh

By Jonah E. BromwichAlan Blinder and Sarah Mervosh

April 18, 2025

https://www.nytimes.com/2025/04/18/us/trump-harvard-legal-process.html

 

In the White House’s campaign against Harvard University, the punishment came swiftly.

 

The Trump administration has frozen $2.2 billion in grants to the school, while seeking to exert unprecedented control over hiring, impose unspecified reforms to its medical and divinity schools, block certain foreign students from enrolling and, potentially, revoke its tax-exempt status.

 

It is a broadside with little precedent. And, as with the White House’s other attacks on universities, colleges and even K-12 schools, the legal justifications have been muddled, stretched and, in some instances, impossible to determine.

 

“It’s punishment before a trial, punishment before evidence, punishment before an actual accusation that could be responded to,” said Ted Mitchell, president of the American Council on Education and the U.S. Department of Education’s third-ranking official during the Obama administration. “People talk about why higher ed hasn’t responded. Well, how can you fight a shadow in this way?​”

 

The legality of each threat varies. In more typical times, some of the individual punishments might be validated by lengthy investigations in which a university would have a right to defend itself.

 

But taken together, law professors and education experts said, the immediacy of the sanctions and threats conveyed an unmistakable hostility toward Harvard and other schools in the president’s sights. The broad vendetta, they said, could weaken the legal argument for each individual action.

 

“You can’t make decisions — even if you have the power to do so — on the basis of animus,” said Brian Galle, a Georgetown University law professor who teaches about taxation policy and nonprofit organizations. “Those aren’t permissible reasons that the government can act. And so what’s interesting about the fact that it’s doing all of these things to Harvard at the same time, is that undermines the legitimacy of each of them individually.”

 

Harrison Fields, a White House spokesman, said that President Trump was fulfilling promises: cutting waste, fraud and abuse and defending Jewish students.

 

Mr. Fields said that the administration’s actions were based on law. Pressed on why consequences were coming before investigations had concluded, he said that the actions were not being taken overnight, but according to a process.

 

Lawyers for Harvard have said otherwise. William A. Burck and Robert K. Hur wrote in a letter this week that the government’s demands — apparently sent prematurely — would infringe on the school’s rights, requiring it to repent for harm that the administration had not proven.

 

“Harvard is not prepared to agree to demands that go beyond the lawful authority of this or any administration,” they wrote.

 

Mr. Trump’s comments on Harvard’s tax status were among the most legally dubious, experts said. On Tuesday, the president suggested in a Truth Social post that “perhaps” the school should lose its tax-exempt status.

 

It is illegal, punishable by prison time, for the president, vice president or the Treasury secretary to request, directly or indirectly, that the I.R.S. conduct an audit. And “the only way to revoke the tax-exempt status of a nonprofit organization is via an I.R.S. audit,” said Jeffrey Tenenbaum, managing partner of Tenenbaum Law Group.

 

Mr. Fields later said that the tax agency had been scrutinizing Harvard before Mr. Trump’s post, and that “any forthcoming actions” would be conducted independently.

 

The Department of Justice would typically investigate any violation of the audit law. A department spokesman did not immediately respond to a request for comment.

 

The measure was passed after President Richard M. Nixon had used the I.R.S. against his enemies.

 

“Richard Nixon, for all his faults, understood right and wrong enough to try to hide the wrongs he did,” said Lawrence H. Summers, a former Harvard president who was Treasury secretary for part of Bill Clinton’s presidency. “It is this administration’s effort to make its wrongs as transparent as possible so as to intimidate.”

 

The foundation of the White House’s attack on Harvard and other universities was laid during Mr. Trump’s first weeks in office.

 

On Jan. 21, he signed an executive order directing his administration to scrutinize universities or colleges that were using “dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called ‘diversity, equity, and inclusion.’” Eight days later, he ordered that federal agencies “curb or combat antisemitism,” particularly on campuses.

 

The consequences emerged in force last month, when an antisemitism task force, based in the Justice Department and involving an array of agencies, announced that it would strip funding from Columbia University. The news came just four days after the task force said it was reviewing the school’s federal contracts “in light of ongoing investigations for potential violations of Title VI of the Civil Rights Act,” which forbids discrimination tied to race, color or national origin.

 

The task force’s announcement came with a statement from Robert F. Kennedy Jr., the health secretary, castigating Columbia for alleged inaction after protests on its campus last year.

 

“Antisemitism — like racism — is a spiritual and moral malady that sickens societies and kills people with lethalities comparable to history’s most deadly plagues,” he said. “In recent years, the censorship and false narratives of woke cancel culture have transformed our great universities into greenhouses for this deadly and virulent pestilence.”

 

Ilya Somin, a professor at the Antonin Scalia Law School at George Mason University who specializes in constitutional law, said that punishments related to Title VI would typically follow an investigation, rather than arrive simultaneous with its announcement.

 

“Any remedy would have to be reasonably tailored to the violation that occurred, as opposed to what we see here,” he said.

 

Professor Somin said that the administration’s actions were part of a broader pattern of trying to use federal grants as leverage to control private institutions.

 

“Conservatives and also libertarians like me have been warning about this problem for many years,” he said, adding that intellectual opponents on the left had downplayed the risks. “It’s ironic that in this instance, a right-wing administration is proving us right in spades.”

 

The attacks on Harvard have been broader and more aggressive than any taken thus far. This month, the Trump administration sent the school a list of demands, saying that it had “fundamentally failed to protect American students and faculty from antisemitic violence.” It requested “immediate cooperation in implementing these critical reforms.”

 

Initially, the university seemed open to negotiation. But after the administration sent a five-page list of heightened demands that cited no apparent legal authority, the school said it would not comply. Harvard, perceiving a threat to its independence, accused the government of making many requests that were not connected to combating antisemitism. The Trump administration retaliated hours later by freezing more than $2.2 billion in federal funding.

 

Erwin Chemerinsky, a constitutional scholar, said federal law is clear that Harvard must be given a hearing and the government must clear many hurdles before money is taken away. This includes finding specific violations of law and giving 30 days notice to both chambers of Congress.

 

“The Trump administration followed none of these procedures as to Harvard, or any of the other universities where there has been a cutoff of funds,” Mr. Chemerinsky, dean of the law school at the University of California, Berkeley, said in an email.

 

A letter to one university facing federal scrutiny shed some light on the task force’s legal approach. The letter, which was obtained by The New York Times, cited both the antisemitism executive order and the Civil Rights Act of 1964. It told the university that it “may have failed to protect Jewish students and faculty members from unlawful discrimination, in potential violation of statutes that we enforce.”

 

The letter, signed by Leo Terrell, a senior Justice Department official and the task force’s titular head, demanded a meeting “with relevant administrators, faculty, staff members, and any on-campus Jewish stakeholder groups.”

 

“This meeting will help us fully and objectively evaluate the allegations and determine what further action, if any, may be warranted,” Mr. Terrell wrote, adding that the department had reached no conclusion in advance.

 

The letter suggested that the task force is relying on a theory that the Department of Education embraced during George W. Bush’s presidency. Although Title VI does not bar religious discrimination, the Bush-era doctrine sweeps “shared ancestry and ethnic characteristics” into its protections.

 

The Trump administration has also set its sights on K-12 public schools. It is threatening to withhold federal money for low-income students from states and districts that do not end diversity practices that the Trump administration says violate Title VI.

 

It has not offered an exact list or definition of illegal practices, though it has suggested that teaching about ideas like structural racism, or establishing programs that separate students by race to provide targeted academic or social support, could be objectionable.

 

The administration has relied on the Supreme Court’s 2023 decision rejecting affirmative action in college admissions, arguing that it can be applied more broadly for the use of race in education — including K-12.

 

It is unclear how the courts would respond to that interpretation, which is disputed among legal scholars.

 

The Trump administration outlined its view of civil rights law in a “Dear Colleague” letter to schools, a strategy many administrations have used to offer guidance on a variety of matters. But such letters are nonbinding and cannot create new legal standards, said Kimberly J. Robinson, director of the Education Rights Institute at the University of Virginia law school.

 

To do that, she said, the administration would have to follow a more formal process, with a period of public notice and comment, which it has not done.

 

The administration’s broadside against schools and universities has no obvious parallels in modern American history. While the Department of Education and the Department of Justice are both empowered to investigate universities, they typically home in on a particular program or practice and offer schools a chance to make changes, rather than the bulldozing approach that the White House has favored.

 

“Not even the recalcitrant segregated school districts of the 1960s and 1970s were met with so unilaterally and so swiftly as this department is dealing with institutions of higher education right now,” said Derek W. Black, a constitutional law professor at the University of South Carolina.

 

“They are not engaging in investigations, they are not investigating facts, they are not giving the institution an opportunity to remediate,” he added. “They are saying, ‘Sign our loyalty pledge, or we are taking your money.’”

 

Glenn Thrush and Vimal Patel contributed reporting.

 

Jonah E. Bromwich covers criminal justice in the New York region for The Times. He is focused on political influence and its effect on the rule of law in the area's federal and state courts.

 

Alan Blinder is a national correspondent for The Times, covering education.

 

Sarah Mervosh covers education for The Times, focusing on K-12 s