The Sept. 3 ruling for Harvard by federal judge Allison Burroughs is the most important decision so far for defending academic freedom against the attacks by the Trump administration. The permanent injunction against the Trump administration’s ban on funding to Harvard will eliminate much of the Trump regime’s ability to hold Harvard hostage—unless it is able to find a higher court willing to defend these illicit attacks on higher education and free expression.
With this ruling, Columbia’s decision to submit to the Trump administration and pay $221 million looks not merely spineless but financially stupid. While former Harvard president Lawrence Summers praised Columbia’s submission and urged Harvard to obey, a large group of Harvard faculty and students fortunately pressured their administrators to hold firm, at least for long enough to enable a court ruling that restores the money researchers at Harvard are entitled to.
Now that this ruling has been won, Harvard needs to take the fight to its conclusion. It cannot settle with the Trump administration and give away this victory, since that would leave Harvard at the mercy of Trump officials anytime they decided to punish Harvard again. A settlement by Harvard now would be not only cowardly but crazy.
The conservatives on the Supreme Court may soon be forced to choose between obeying the law and the Constitution or obeying Donald Trump, and they have shown little desire to defy the president’s commands no matter how illicit they are.
The most likely path for the Supreme Court justices to help the Trump administration destroy higher education is jurisdictional. The Trump administration argued unsuccessfully that this entire lawsuit must be heard in another federal court because it relates to federal contracts.
The court could order that the legal process begin anew in a different court, reinstate the Trump bans against Harvard and hope that the long pathway to a resolution would pressure Harvard to give Trump his $500 million extortion and agree to suppress academic freedom without the Supreme Court needing to review a case where the law is unquestionably on Harvard’s side.
But while the unprincipled political hacks who dominate the Supreme Court make that evasion of moral and legal responsibility a possible result, it’s also possible that enough conservative justices have a modicum of integrity left to question the obviously illegal and unconstitutional attacks on Harvard—not because they like Harvard, but because they recognize the necessity of the Supreme Court restraining a president who is indifferent to the law and the Constitution.
It’s important to point out just how dumb the Trump administration officials are. By issuing a May 5 freeze order stating, “Today’s letter marks the end of new grants for the University,” the Trump administration removed any possible doubt that it had made a final decision against Harvard in violation of the law and the First Amendment.
If the Trump administration had simply frozen grants but pretended to make an ongoing evaluation, it might have created enough doubt to survive judicial scrutiny long enough to force Harvard into submission. Instead, the overwhelming desire to punish Harvard by any means possible may ultimately lose this case for the Trump administration. For all of the partisan posturing and ideological bias, some judges still will follow the law, and the law is clearly on Harvard’s side, as the Foundation for Individual Rights and Expression noted in what it called “the flatly unlawful and unconstitutional means used by the Trump administration in this attempted hostile takeover.”
Every other university now has a clear path for what it needs to do: resist, sue, win. It’s absolutely shocking that Harvard has been the only university to (however reluctantly) undertake the aggressive litigation approach that is the only reasonable strategy against the repression of the Trump regime.
The fight by Harvard against Trump’s authoritarianism could be a victory not just for higher education, but for democracy. But Harvard needs to keep on fighting if it wants to prevail.
