In recent days the Trump administration has ramped up its attacks on higher education. On June 26 the Justice Department announced that it is investigating the University of California system on the grounds that its pursuit of ethnic and racial diversity in hiring, promotion, and training could amount to discrimination. Over the weekend, the administration reportedly forced the president of the University of Virginia, James Ryan, to resign. (Speaking on Face the Nation on Sunday, Virginia senator Mark Warner alleged that Trump’s Justice Department—which is currently investigating UVA’s diversity, equity, and inclusion initiatives—had impressed upon Ryan “that if he didn’t resign on a day last week, by five o’clock, all these cuts would take place…. It was that explicit.”) Then, on Monday, the Office of Civil Rights (OCR) of the Department of Health and Human Services announced that Harvard had violated antidiscrimination law by responding inadequately to alleged antisemitism on campus in connection with protests against Israel’s war on Gaza.
The OCR report on Harvard—thirty-four pages, with a twenty-three-page appendix—inadvertently reveals how baseless and opportunistic these attacks are. Legally speaking, the report is an embarrassment. It contains no sign that the OCR seriously investigated the factual circumstances underlying even a single complaint of in-person discrimination or harassment to determine its veracity. Instead the office seems to have simply taken every complaint, even anonymous ones, at their word—an approach that it would never adopt toward, say, an allegation of sexual harassment.1
Even if everything in the report were true, for that matter, it would not support the OCR’s conclusion that Harvard has been “deliberately indifferent” to pervasive discrimination on its campus since October 7, 2023. The report makes no attempt to distinguish actual discrimination from speech or conduct that may offend some listeners. It includes among its “findings” facts that do not even plausibly rise to the level of antisemitic discrimination: it claims, for example, that some students chanted “Globalize the Intifada,” but such a general chant at a protest, expressing support for Palestinian self-determination, is not even necessarily antisemitic, much less discriminatory. Similarly, the report states that Jewish students “didn’t even feel safe” at graduation because of the pro-Palestinian protesters there and that other students maintained—in an anonymous survey—that they experienced “discrimination, stereotyping, or negative bias on campus due to [their] views on current events.” But witnessing a protest with which one disagrees is not the same thing as suffering discrimination for being Jewish, nor is being typecast for one’s “views on current events.” That’s just free speech.
The report also cites numerous instances in which protesters violated Harvard’s time, place, and manner rules and obstructed life on campus, either physically or by making excessive noise. Harvard can certainly take action against those violations—and often it did. But they are not discrimination against Jewish students when they inconvenience everyone equally. The report also complains that Harvard meted out discipline inconsistently, largely because enforcement was decentralized and some decisions were modified through an appeals process. But Title VI requires only that the school not be deliberately indifferent—not that its punishments be centralized or uniform, or immune from modification on appeal.
Perhaps most revealingly, the OCR report notes that Harvard received only nine actual complaints about direct experiences of antisemitic harassment—a detail that might lead a reasonable fact-finder to conclude that there was not, in fact, a widespread problem of antisemitic discrimination at the school. The OCR’s conclusion, again delivered without a shred of evidence, is instead that the paltry number of complaints shows that Harvard lacked “effective reporting policies.” That conclusion makes sense only if you start from the assumption that there was a widespread problem—not if you are trying to determine whether there was a problem in the first place. The OCR report includes a handful of complaints that, if true, are disturbing; but its “findings” of systemic discrimination and deliberate indifference are remarkably thin. They would not stand up for a second in any court of law.
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On the first day of his second term, Trump issued an executive order directing the Justice Department to work with all federal agencies to investigate the politically motivated weaponization of law enforcement. If there are mirrors in the administration’s offices, they shouldn’t have to look far. The paucity of the evidence in the OCR’s Harvard report—and for that matter in the charges leveled by Republicans during the House’s series of McCarthy-like hearings about antisemitism on campus—makes it hard not to conclude that the administration and its allies are exploiting often unfounded charges of antisemitic discrimination to punish elite universities that they believe have been captured by liberals and grown hostile to conservatives.
The administration’s letter to Harvard in April said the quiet part out loud. It demanded, among other things, that the university pursue “viewpoint diversity” in its hiring, investigate all faculty members for plagiarism, ensure that foreign students are not “hostile” to “American values,” and eliminate all “diversity, equity, and inclusion” training and offices—requests far afield from remedying antisemitic discrimination. This has been a constant theme among Republican officials and their supporters in the media. When I testified before the House Committee on Education and the Workforce in May, one congressman, Joe Wilson of South Carolina, asked the president of California Polytechnic State University about his faculty’s “percentage of conservatives” and “percentage of Republicans, because I, I’m sadly, uh, concerned there are none, or very few.”
When the administration uses allegations of discrimination to demand changes in how a university organizes its core mission, it ignores a critical distinction. The federal government has the right to demand an end to actual discrimination—if it exists. But apart from their obligation not to discriminate on the basis of race or sex, universities have a constitutional right to determine for themselves how they hire, admit students, govern campus life, and teach. No government official has the authority to demand the resignation of university presidents, the elimination of “diversity, equity, and inclusion” trainings that violate no conceivable law, the hiring of “viewpoint diverse” faculty, or the screening of foreign students to ensure they are not “anti-American.”
This principle should guide universities whenever they respond to the administration in its purported efforts to enforce antidiscrimination laws. Harvard, to its credit, chose to fight when it received the administration’s outrageous and illegal demands in April. That decision has been vindicated by the courts, which have ruled repeatedly for the university and against Trump—most recently in a pair of rulings barring the administration from denying Harvard the ability to admit foreign students.
But apparently Harvard is now considering coming to an agreement with the administration, at least if Trump is to believed. He recently announced on Truth Social that a settlement may be in the works. If so, he promises, it will be “HISTORIC.” That’s certainly true, as a descriptive matter. But what kind of history would it make?
That depends on the terms. In a recent New York Times conversation, former Harvard president Lawrence Summers advocated that Harvard “resist and reform.” The school has to “stand up against encroaching tyranny,” he argued, but at the same time reorient itself “toward diversity of perspective and away from identity politics.” That two-step, however, is easier said than done: there is a real risk that undertaking reforms under the gun of the Trump administration’s retaliatory threats would surrender the very principle Harvard is fighting for. I am all for more ideological diversity and less identity politics in the academy, and were Harvard to independently adopt such reforms I’d celebrate them. But if the university makes such a change at the behest of the federal government, under plainly unconstitutional threats of devastating retaliation, it will have given away a crucial aspect of its academic autonomy.
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Academic freedom, which the Supreme Court has called a “special concern” of the First Amendment, protects both universities as institutions and professors as individuals. Above all else it means that government officials may not control the academic choices that institutions and professors make—what and how they teach, research, and write, whom they hire and admit, and how they govern student life. A school may of course choose to pursue viewpoint diversity. But if it wants a liberal or conservative tilt, it may pursue that as well. The law schools at Pepperdine and George Mason are dominated by conservatives; those at Northeastern and City University of New York by liberals; and the University of Chicago faculty is more balanced. Each of those choices is not only permissible but constitutionally protected by the First Amendment.
The Trump administration has often pressured its academic targets using government funding—and because research universities receive extensive federal support, that’s a powerful tool. But the Supreme Court has ruled that the government cannot use its funds to seek to control what a recipient says outside the specific government-funded program in question. In Agency for International Development v. Alliance for Open Society International, the Court ruled that the government could not require organizations to oppose prostitution as a condition of receiving federal funds to fight HIV/AIDS; Chief Justice John Roberts wrote for the majority that the government could not use its funding as leverage to influence the organization’s views.
The Trump administration can of course insist that a cancer research grant to Harvard be used for cancer research. But the constitution forbids it from conditioning that grant on the university’s agreeing to pursue “viewpoint diversity” in general faculty hiring, or to end DEI training. Adopting reforms of that nature for the sake of resurrecting illegally canceled grants would mean giving in to the government’s unconstitutional intervention in the university’s own affairs.
What can Harvard and its peers agree to without compromising the principle they should be fighting for? They can adopt reforms designed to avoid illegal discrimination in hiring, admissions, or campus culture—at least where evidence of such discrimination exists. All schools that receive federal funds are required not to discriminate on the basis of race, sex, or national origin. That condition does not violate the First Amendment because it is directed at illegal conduct, not protected speech.
The Trump administration asserts that Harvard has not met its legal obligations in its response to antisemitic discrimination on campus. The flimsy OCR report, however, hardly supports that charge; if anything it refutes it, by identifying few if any confirmed instances of even arguably antisemitic discrimination. It suggests, indeed, that the administration’s principal complaint about Harvard and other elite universities is not that they have countenanced antisemitic discrimination but that they have tolerated speech from students and faculty with which the administration disagrees.
Tolerating pro-Palestinian protests is not only not illegal under federal law—it is the university’s right as an institution protected by the First Amendment. If Harvard is to stay true to its forthright and, yes, historic stand for academic freedom—and continue leading the charge against Trump’s unconstitutional attack on higher education—it should reject any settlement that allows the administration to dictate the ideological terms of its hiring, its admissions, its speech policy, and what its faculty teach. Harvard cannot agree to change these core elements of university life without forfeiting the first principle of academic freedom: that under our First Amendment such decisions are its alone—not Donald Trump’s.
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