Trump’s Lawless Attack on Harvard Is Like None Before

This month, our firm filed a friend of the court brief in the Harvard case on behalf of 18 former government officials who were responsible for enforcing Title VI of the Civil Rights Act of 1964, the law the Trump administration relies on to justify termination of billions of dollars in federal funding to the university. The signatories to the brief are senior career and non-career appointees who served in both Republican and Democratic administrations from the 1970’s to January of this year.

One of those former officials is David Tatel, a highly respected retired judge who served as director of the Office for Civil Rights in the Department of Health, Education, and Welfare (HEW) under President Jimmy Carter, and later as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, often called the nation’s second highest court. Judge Tatel discusses his experience overseeing Title VI enforcement in the brief. It illustrates just how lawless, destructive, and dangerous President Donald Trump’s vendetta against Harvard has become—and how different it is from any Title VI enforcement action that has gone before.

Title VI requires institutions that receive federal funds to follow civil rights laws. Institutions that discriminate can lose their funds, but it is an option of last resort.

Rather than conducting a proper investigation with detailed findings, engaging in good-faith negotiations, and allowing Harvard an opportunity to defend itself, Trump moved immediately to the nuclear option that hurts everyone.

Before funds are cut, the government must conduct a proper investigation to determine if discrimination exists and the law has been violated; it must make genuine, good faith efforts to work with the fund recipient to secure voluntary compliance; and where settlement is unsuccessful, the recipient must have a chance to present its case in court.

These constraints are written into Title VI and the regulations federal agencies must follow. They protect the interests of universities like Harvard, but more important, they maintain the delivery of services to the ultimate beneficiaries of federal programs as much as possible. In the case of Harvard, those beneficiaries include not just its students and faculty, but millions around the world who benefit from advances in science, medicine, and technology that flow from Harvard’s research programs and facilities.

Judge Tatel refers to fund termination as the nuclear option: “it is like dropping an atom bomb—everyone gets hurt.”

In his time enforcing Title VI, Tatel faced egregious violations of civil rights laws by school districts and universities, involving refusals to comply with court desegregation orders, and the firing of Black teachers.

Tatel recalls traveling to remote school districts in Texas and Arkansas, meeting with school superintendents to learn about their issues and work out agreements. He did the same with the city of Chicago, taking months to investigate concerns and negotiate over how to achieve voluntary compliance with a desegregation plan that would serve the interests of students, the city, and the federal government.

Universities were no different. Tatel carefully negotiated agreements with the public university systems of Arkansas, Florida, Georgia, Oklahoma, and Virginia to remove the vestiges of racially dual education systems in those five states.

The University of North Carolina took longer, but Tatel and his boss, HEW Secretary Joseph Califano, stayed with it for years, meeting repeatedly with the UNC president and North Carolina Gov. Jim Hunt to craft an acceptable plan. Ultimately an agreement was worked out by the Reagan administration.

The approach to Title VI enforcement Judge Tatel followed and that is mandated by the statute has worked time and again. As a result, the termination of funds has been rare. Thousands of Title VI complaints have been filed during the decades Tatel and the signatories to the brief oversaw enforcement. They are aware of none that has resulted in fund termination since 1982.

Contrast this with way Trump has pursued alleged Title VI concerns with Harvard. After receiving notification of the government’s allegations of antisemitism on campus in February, Harvard explained the reforms it had undertaken and said it was open to exploring further reforms. Trump responded with an unprecedented and unconstitutional demand, requiring Harvard to submit to government control of the viewpoints expressed on campus. When Harvard refused to cede control of its teaching, community and governance, Trump moved within hours to terminate all federal funding.

The consequences to Harvard are dire. The cuts affect billions of dollars in funding that support medical breakthroughs, scientific discoveries, and national security. Harvard filed suit in court, challenging the fund termination as unconstitutional retaliation for exercising its First Amendment rights and its right to defend itself.

Trump responded by doubling down, ordering the Department of Homeland Security to revoke Harvard’s certification to host the 7,000 international students currently enrolled at Harvard. Harvard filed a second suit to protect these students, and Trump retaliated yet again, issuing a new Executive Order directing the State Department to take actions designed to prevent new international students coming to Harvard from entering the country.

Nothing could be further from the process mandated by Title VI for resolving allegations of discrimination, or the process successfully followed by past administrations and those charged with enforcing Title VI. Rather than conducting a proper investigation with detailed findings, engaging in good-faith negotiations, and allowing Harvard an opportunity to defend itself, Trump moved immediately to the nuclear option that hurts everyone.

What explains this blatantly lawless conduct? In my view the answer is clear.

Trump is not interested in resolving allegations of discrimination, any more than he is interested in determining if the allegations have merit in the first instance. His motives are retaliatory and punitive. They are designed to assert control over America’s oldest, wealthiest, and most prestigious university—a powerful institution he has concluded is not aligned with his political ideology.

He is determined to make an example of Harvard so that other universities and institutions with money and power will do his bidding.

We are now well down a path toward authoritarianism. The importance of the battle between Trump and Harvard cannot be overstated. It will determine more than the future of academic freedom in America. It may well determine the future of our democracy.