Harvard sues the Trump administration

The world's wealthiest university just filed a lawsuit against the world's wealthiest government. What are the claims, and what is going to happen?

What could possibly go wrong?

You know, it’s just the richest university on the planet with an endowment of $53 billion¹ suing the Trump administration and its virtually limitless capacity to litigate although also with a virtually limitless capacity to undermine itself through overreach and sheer incompetence — all going to federal court in Boston to begin the process whereby a series of judges will decide the fate of billions of dollars worth of federal grant funding mostly for a wide array of medical and other scientific research projects.

And the day Harvard files this lawsuit, rather than being headline news, it almost escaped notice because of the passing of Pope Francis and the continued implosions of both Secretary of Defense Pete Hegseth and also a little thing called the $30 trillion² American economy.

Much has already been pinned on this case, before it was even filed; it is the receptacle both of too much hope and of too much fear.

Ultimately, it is merely a lawsuit, and we can analyze it on that basis. What exactly is going on here?

The First Amendment

The headliner here is that Harvard is accusing the administration of violating the First Amendment by threatening to strip federal funding and even revoking Harvard’s tax-exempt status under federal law unless Harvard complies with the administration’s diktats on faculty hiring, teaching, curricula, funding of student groups, and more.

Harvard students, clearly engaging in “radical left” revolutionary behavior, such as going to the library.

The administration’s likely response is going to be upside-down compared with recent legal battles. After decades of conservative litigants using the First Amendment, often successfully, as a way to sidestep civil rights laws, an ultra-conservative government will now argue that civil rights laws should be applied notwithstanding the supposed First Amendment rights of the target in question.

Yet this is where the Trump administration — and Donald Trump personally — have already sown the wind from which they may soon reap the whirlwind. The Trumpers’ attacks on Harvard have been focused both on the university’s supposed “radical left” leanings as well as antisemitism. The problem for the Trumpers is that the former traps them in the quagmire of viewpoint discrimination whereas the latter might have kept them on the terra firma of civil rights law — and taken together, there is a clear picture of political actors with an obsession in search of a justification. They want to attack what they see as left-leaning colleges, and they have seized upon antisemitism as their best cudgel with which to mount the attack.

Yet the courts are likely to see through all this (at least for now; see below). The administration is very clearly engaged in impermissible viewpoint discrimination, no matter how many times the more conniving among them remember to tether everything to antisemitism.

The Administrative Procedure Act

Now we get to the more boring but legally sturdy section of Harvard’s argument. I’ve repeatedly called the Administrative Procedure Act (APA) the most important federal law you’ve never heard of, except that that’s no longer true, as you’ve definitely heard of it by now if you read this newsletter or listen to its sibling podcast.

The APA may not be the headliner, but it will be the workhorse in this case, as it has been in most of the challenges to the administration’s overreach. It not only forbids unconstitutional agency actions; it also forbids agency actions that violate an agency’s own governing laws and regulations, exceed an agency’s legal authority, or constitute “arbitrary and capricious” decisions not grounded in fact, reason, data, etc.

While the government could at least hazard a plausible defense against the First Amendment claim — arguing that it is defending civil rights laws against antisemitism at Harvard — the administration has precious little chance of defending the process by which it has reached its position. There are legally prescribed procedures for finding a university or other entity to have violated civil rights laws, and the administration has not followed them at all, jumping all the way to the conclusion without going through any of the intervening steps.

Critically, as Harvard notes, even if the administration is correct about civil rights violations, the proper punishment would be far, far more narrow and tailored — e.g. stripping federal funding for the specific programs deemed to be in violation, rather than cutting it for the entire university. Most of the threatened funding cuts would hit scientific research, and no one is alleging that Harvard is somehow violating civil rights laws in how it is conducting scientific research with federal grant dollars.

And again, it is clear that political animosity is the real driving force behind the attack on Harvard and other schools, and such vitriol falls squarely into the “arbitrary and capricious” realm.

This is a very strong argument for Harvard. The administration’s disdain for proper procedure is blatantly obvious, and the courts are not likely to overlook it.

The road from Boston to SCOTUS

The case begins in federal district court in Boston, where it is very likely that a judge will soon issue a preliminary injunction stopping the administration from carrying out any of its threats against Harvard. Then there will be a full litigation of the issues, followed by a final decision by the district court — and almost certainly, an appeal to the First Circuit, also in Boston, regardless of who wins below. Harvard is likely to win all of these battles, at least on the APA if not the First Amendment as well.

The real question, of course, will be what happens if the case eventually comes before the Supreme Court — and specifically what John Roberts, Amy Coney Barrett, and perhaps Neil Gorsuch and Brett Kavanaugh think of the parties’ arguments.

This could easily be years from now, which of course means we’ll have ample time to dissect the arguments and potential results as the case progresses. But for now, suffice it to say, the more Harvard’s lawyers focus on the clear and extreme political animosity of Trump and his cronies, and the clear and extreme procedural violations and overly broad attacks on the university, the better they will do.

1. This is a very large number, but it is quite sobering to realize how small this number is compared with the excessively large amounts that have been accumulated by the very wealthiest oligarchs. If Harvard were a person, they would only be the 28th wealthiest person on the planet currently.

2. Likely soon to be a lower number, sadly.