Harvard Under Attack

Since Donald Trump took office as the 47th President of the United States of America, hardly a week has gone by without academic institutions coming under attack. This wave of measures began in January 2025, when the President issued a series of executive orders declaring programs promoting “diversity, equity, inclusion” (DEI) to be illegal and immoral, and announcing measures against anti-Semitism at U.S. universities. As a result, the U.S. government “froze” a considerable amount of federal research funding – typically grants awarded on a competitive basis for cutting-edge scientific research. In addition, federal research institutions have been drastically cut back, with substantial layoffs of personnel. At the beginning of February, the Department of Justice announced the formation of a task force against anti-Semitism at universities, with the participation of the Department of Education and the Department of Health and Human Services. Five universities were named as particularly problematic. In early March, 60 universities were given advance warnings that they could face a cutoff of federal funding if they did not fulfill their obligations under Title VI of the Civil Rights Act.

The first university to be targeted was Columbia University, on which nine demands were imposed. Their unconditional and comprehensive fulfillment was declared a prerequisite for entering further negotiations. This included a reorganization of disciplinary procedures – specifically, requiring that the body responsible for disciplinary measures be detached from the academic senate and subordinated to the university president. The Department for Middle East, South Asian, and African Studies was to be placed under special supervision, i.e., lose its academic self-administration rights. Far-reaching reforms in faculty recruitment and the course program were also demanded to ensure greater “intellectual diversity”. Columbia University agreed to comply with the demands. However, funds frozen by the government have not yet been released.

Against this background, Harvard University has now taken a different path than Columbia University and, after failed negotiations with the U.S. government, took legal action against their demands on April 21, 2025. Ten days earlier, the Harvard Faculty Chapter of the American Association of University Professors (AAUP) had already applied for legal protection. The joint objective is the continuation of federal funding and a judicial declaration that the government’s actions are unlawful.

Legal issues raised by the U.S. government’s actions

Harvard’s statements of claims submitted to the court are informative and interesting for observers outside the U.S.: they lead into the depths of U.S. laws on subsidies, illustrating their interlocking with aspects of discrimination protection and procedural limitations. According to the statements of claims, all procedural standards were ignored by the U.S. government. This corresponds with observations on government action in other fields: Contrary to what many thought in advance, the Trump administration does not follow in its first 100 days the textbook of legal authoritarianism familiar from Hungary or Poland under the PiS government, in which principles of liberal democracy are undermined by using the instruments and forms of law. Rather, the Trump administration takes into account the open violation of the law – and then sees who can be intimidated and backs down.

The Harvard case also shows systematic problems in the protection of academic freedom in the U.S. Unlike in Germany, academic freedom is not specifically protected in the U.S. Constitution. In the past, soft law orchestrated by the American Association of University Professors and labor agreements played a central role for academic freedom in action in the U.S.¹⁾ These regulatory techniques place the conflict over academic freedom primarily between employer and employee.

Independent of this contractual academic labour law framework, the U.S. Supreme Court recognized academic freedom as a First Amendment value.²⁾ However, what precisely follows from this recognition – who is protected, and how far the protection extends, especially vis-à-vis the legislative and executive branches of government – is anything but clear. Judicial precedents in the U.S. present a heterogeneous picture and, in some cases, deviate considerably from AAUP standards. Accordingly, the remarks on academic freedom in the statements of claims from Harvard University and the AAUP seem to be comparatively weak – at least from the perspective of a foreign observer.

In addition, the Harvard case is not about traditional infringements of a freedom protected by the First Amendment, but about the refusal of financial benefits. In such contexts, the U.S. doctrine of unconstitutional conditions has emerged, which sets limits on the design of funding conditions. The U.S. government is now claiming that Harvard – and other universities – are violating Title VI of the Civil Rights Act by serving as “breeding grounds for anti-Semitism”.

This raises all sorts of constitutional questions: Exactly how do prohibitions on discrimination under the Civil Rights Act relate to First Amendment protections? Can the U.S. government require grant recipients to ban speech that is itself protected by the First Amendment? To what extent may it impose grant conditions to influence organizational decisions of the grantee? If the government revokes a grant, can it do so based on events on campus and university decisions unrelated to the funded project? Or is it only possible to exclude funding if there is discrimination in the subsidized project itself?

Procedural provisions in the U.S. Code and the Code of Federal Regulations

Let us first take a closer look at the procedural framework of Title VI of the Civil Rights Act of 1964, whose provisions can be found today in 42 U.S. Code § 2000d et seq. Section 2000d states:

„No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Anti-Semitism is subsumed under the categories of “race” or “national origin”. The implementation of this prohibition of discrimination is regulated in detail in executive regulations that require presidential approval. Section 2000d-1 provides a general framework for these regulatory provisions. Accordingly, the rejection or termination of a grant due to a violation of Title VI can only be considered if certain procedural steps have been taken: 1) A hearing of the affected parties is required, and 2) an explicit written statement of the relevant violation. 3) Priority should be given to advising applicants or recipients and working towards voluntary adjustments. 4) The appropriate committees of both houses of Congress shall be informed of any proposed rejection of an application for federal funding or suspension of grant payments. 5) No action regarding a violation of Title VI may take effect until 30 days after such notification. 6) Denial or termination shall also be limited to the program or entity for which a discrimination violation was found.

Further enforcement provisions are outlined in the Code of Federal Regulations (CFR), which contains general payment provisions and an obligation to monitor compliance (2 CFR § 200.300), as well as detailed provisions for specific departments and their agencies, such as for the National Science Foundation in Title 45, Subtitle B, Chapter VI Part 611. These provisions incorporate and expand upon the procedural requirements of 42 U.S. Code § 2000d-1 and provide examples of discriminatory practices.

In summary, this constitutes a tightly woven procedural framework that provides numerous safeguards and imposes high thresholds if an authority wants to suspend or reject funding with reference to Title VI.

In the case of Harvard (as in the case of Columbia and other affected universities), none of these legal conditions were observed. Payments were stopped without further ado; no reliable justification was provided beyond the sweeping accusation of tolerating and promoting anti-Semitism; Congress was not informed in writing.

The government could now argue that payments were only frozen, which is neither a “termination” nor a “refusal” in the legal sense. One could also consider whether the list of demands compiled by the government task force might constitute the consultation required by law.

Such arguments are unlikely to convince a functioning judiciary: the procedural rules are intended to prevent Title VI from being misused as a power tool to exert undue influence, through clearly specified deadlines, the priority of consultation and voluntary adjustments, the justification requirements and the limitation of the effect to specifically discriminatory projects and parts of the funded institution. The Code of Federal Regulations lists individual prohibited discriminatory acts in detail. This list is not exhaustive, but it does give an indication of the level of justification required by the government: specific actions and incidents must be named.

According to the available documents, the U.S. government has failed to meet this baseline requirement. The legally required connection between a scientific research project affected by the funding freeze and anti-Semitic discrimination has therefore not been demonstrated.

Context of identity politics: antisemitism, intellectual diversity, DEI

The government is instead referring generally to campus protests since October 2023. Particularly in the context of such political protests, a very precise distinction must be made between mere criticism of Israeli government actions and Israel-related antisemitism – a demarcation that is difficult and controversial in detail. Even if one  adopts only the working definition of the International Holocaust Remembrance Alliance (IHRA), it remains the government’s responsibility to identify  and evaluate specific facts and incidents if it claims a violation of Title VI.

It is also striking that the U.S. government is not considering the adjustments that Harvard has already made in the last two years (partly because of a court settlement in January 2025): Disciplinary procedures were tightened; a ban on demonstrations was imposed on lecture halls, libraries, dormitories and dining halls; rules on intimidation and harassment were sharpened (see para. 46 et seq. of the statement of claim), and the IHRA definition of antisemitism was declared authoritative for Harvard.

The lack of specific allegations by the Trump administration corresponds to the fact that many of the demands are overly vague, such as those calling for more “viewpoint diversity” at universities. The measures demanded are also contradictory: on the one hand, there is criticism that DEI programs hinder meritocratic recruitment practices, i.e. have a discriminatory effect, while on the other hand, there are calls for more diversity on campus through an admissions and recruitment policy based on political ideologies.

With regard to the humanities and social sciences at North American universities, there may be cause to ask critical questions about intellectual diversity, methodological plurality, and the risks of an overly homogeneous set of preconceptions and assumptions. Diversity can contribute to the quality standards of academic research and teaching. Consequently, the struggle for intellectual diversity is an original academic task. It must be ensured by the academic system itself. And it is precisely because of this epistemic function that DEI activities, which are opposed by the government, can be justified in principle.

Title VI of the Civil Rights Act, however, only comes into play where specific discrimination can be observed within the context of federally funded projects. Because the government has so far failed to make any reliable findings in this regard, there is a growing suspicion that the administration is less concerned with anti-Semitism on campus – a challenge that Harvard does not deny. Rather, it appears that the government is seeking to escalate the culture war that has been raging in the U.S.A. for decades and to domesticate milieus and institutions described by government representatives as “woke”, “left-wing” or “Marxist” within the perceptual matrix of political polarization. This raises the urgent question of whether the First Amendment’s guarantee of free speech and academic freedom do not serve precisely to guard against precisely such intimidation and influence.

Academic freedom and the First Amendment of the U.S. Constitution

This brings us to the constitutional protection of academic freedom in the U.S.A., an area that is quite confusing and characterized by contradictory case law. In general, the U.S. Supreme Court has recognized academic freedom as a “special concern” of the First Amendment (reflecting on its own inadequacies in protecting liberty in the McCarthy era). In particular, the decisions in Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967) are canonized. Keyishian states (385 U.S. 603):

“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

This landmark decision does not go into further detail about exactly what is meant by academic freedom, exactly what protections it entails, and/or what behavior is included. Justice Felix Frankfurter offers a clue in his concurring opinion in the Sweezy case, where he emphasizes four fundamental freedoms of universities (remarkably with reference to a publication against apartheid at South African universities): A university would have the right “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”(354 U.S. 263).

However, a coherent doctrine of academic freedom has not developed from these precedents: In some cases, institutional protection is particularly emphasized, also in relation to faculty, while in others any individually protective dimension is entirely denied (notoriously Urofsky v. Gilmore from 2000). Sometimes academic freedom is invoked in federal court decisions without reference to the First Amendment; sometimes, only the protection of free speech is cited, without mention of academic freedom. In contrast to the AAUP standard, the freedom to teach tends to be granted to the institution, but not to the individual teacher. Participation rights of faculty should not necessarily be derived from academic freedom, nor should consultation rights in the event of non-renewal of employment contracts or refusal of tenure. In practice, both are secured by employment contracts and voluntary commitments by universities. The extent to which academic freedom at state universities creates a special status for faculty in comparison to other public employees is still controversial. Most courts acknowledge that academic freedom excludes the application of the doctrines for public employee speech, which in turn limits freedom of speech in the public sector. Otherwise, there would be little left of academic freedom at state universities.³⁾

There is unanimous agreement that academic freedom does not entail an entitlement to state funding; there is no right to grants, they are a privilege. The constitutional foundation for federal grants for research purposes is the spending clause in Art. I, Sec. 8, Clause 1 of the Federal Constitution, which has been interpreted extensively since the time of the New Deal and gives Congress broad discretion to identify welfare concerns worthy of support and to make the corresponding funds available. The specification of the details is usually delegated to the government, which can then determine the individual purposes and conditions of funding.

According to the U.S. Supreme Court, the government must thereby comply with the requirements of the First Amendment. No “unconstitutional condition” may be attached to funding; the government may not misuse grants to impose particular opinions on those receiving funding or to coerce them to support government positions. Drawing the line between the legitimate definition of funding purpose and exclusionary conditions and illegitimate influence is a delicate task – a uniform doctrine or test has not been developed.

For example, the government may require the use of internet filters for the protection of minors if federal funds are used to promote internet access in public libraries. In such cases, the government is merely defining the specific purposes for which federal funds may be used. In contrast, it would be an unconstitutional condition if eligibility to apply were limited to libraries that generally employ such filters. This would not concern the use of federal funds per se. It would be rather an attempt to influence the general policy of the funded institution. The state may also not demand that the funded institution explicitly endorses and adopts government positions. For example, the administration is not permitted to make the subsidization of AIDS aid organizations dependent on the condition that they disapprove of prostitution.

What, then, does this case law on academic freedom and unconstitutional conditions mean for Harvard’s chances of success in its lawsuit?

It is undisputed that Congress has, in principle, established permissible exclusion criteria in Title VI of the Civil Rights Act: The federal government does not have to subsidize projects in which discrimination occurs. However, consistent with precedent on unconstitutional conditions, such exclusions must be limited to the specifically funded project to avoid “excessive” governmental influence. The above-mentioned provisions in the Code of Federal Regulations are in line with this. Funding conditions should not provide any leverage for demanding general policies from universities without reference to the funded project.

Nevertheless, it may be argued that Title VI obliges the entire university in certain cases: If a university department or institute receives a federal grant and uses it to cover expenses for academic staff, for example, the prohibition on discrimination applies not only to the management of the funded unit but also to other organizational components of the university with which the funded personnel interact  (i.e. libraries, laboratories in other institutes, the sports program, etc.). Federally funded staff must not face discrimination anywhere on campus. This argument also finds support in implementing regulations such as 45 CFR § 611.5(2).

But even under this broad interpretation, allegations of anti-Semitic discrimination in connection with federally funded projects must be substantiated. Furthermore, reforms already implemented by the university must be considered. Conflicting legal positions must be considered when designing measures to combat discrimination.

For example, the demand that Columbia University should place an entire department under academic receivership (intensive supervision by the university management) constitutes a massive infringement on institutional autonomy. A similar problem arises with the Trump administration’s demand that the bodies deciding on disciplinary measures should not be independent but should be subordinate to the university management, or that the influence of students and non-tenured teaching staff on such bodies should be severely restricted.

Proponents of government intervention may object that this is “only” about organizational measures, that expressive freedoms are not directly affected, and that the protection provided by the First Amendment is doubtful in such contexts. In fact, case law dealing with the institutional dimension of academic freedom as a First Amendment concern is closely tied to the educational mission of the university, as seen in key decisions on affirmative action or on dismissing students. In other contexts, such as legal claims concerning freedom of information rights against universities, the recourse to academic freedom was not successful in court.⁴⁾

In this light, the Harvard lawsuit offers an opportunity to further define the institutional protection of academic freedom as a “special concern of the First Amendment”. Properly understood, academic freedom in U.S. constitutional law protects at least educational decisions in a broad sense. This also includes the freedom of universities to decide on the competencies, composition, and hierarchical integration of boards that deal with curricular matters or student disciplinary measures.

Another point: Insofar as the federal government objects to campus protests critical of Israeli politics over the past two years, interests protected by the First Amendment seems to be clearly implicated: the freedom of the protesters. But private universities are not bound by the free speech clause in the First Amendment in their internal relationships with students and employees.⁵⁾ There is no state action triggering constitutional obligations. The approval of grants by the federal government does not change this. Private universities can therefore adopt more restrictive speech regulations than state universities, even when it comes to statements on public matters.⁶⁾ In particular, private actors may regulate hate speech within their domains, while the state’s hands are largely tied – if one follows the established case law of the U.S. Supreme Court.

However, the government, for its part, cannot easily enforce speech restrictions on private universities that go beyond general law (certain speech acts, such as directly and immediately threatening a person or defamation, are not protected by the First Amendment). After all, speech regulation on campus is a decision that affects the educational mission of a university at its core and is therefore protected under a properly construed doctrine of understood academic freedom.

In support of its claim, Harvard refers, among other things, to a recent decision of the U.S. Supreme Court, which emphasizes that while the government may express and promote its own views, it may not use its authority to influence citizens through threats of sanctions or other coercion in order to punish or suppress disfavored opinions held by third parties. We will have to see whether, and to what extent, the courts apply this doctrine in triangular situations involving federal grants in the academic sector.

Finally: Academic freedom is undisputedly infringed when the federal government seeks to influence the recruitment of faculty and the admission of students and aims to impose a balance of ideological viewpoints for “every department”, “every field of teaching and research” and “every teaching unit”. After all, academic freedom, in the canonized words of Justice Frankfurter, protects the decision about who teaches, what is taught, and who is admitted to study (see above). This is the expressive core of academic freedom.

For digital platforms, the U.S. Supreme Court has already ruled that the government may not simply impose its ideas of viewpoint diversity on private actors. The same should apply to academic freedom, which on the one hand shields the academic community from unruly political, economic, and moral-ideological influence from outside, and on the other hand guarantees individual scholars’ freedom to research within the academic institution. This dual protection ensures that epistemic conflicts can unfold through methodological diversity and divergent research interests. In contrast, political and ideological diversity quotas set authoritatively by the government are fundamentally incompatible with the guiding principle of academic freedom – quite apart from the fact that here, as with most of the organizational reforms called for by the Trump administration, no sufficient connection with the asserted Title VI violations is discernible.

Universities as a marketplace of ideas – a basic principle under pressure

The measures taken by the federal government since January 2025 have been preceded and accompanied by far-reaching changes in higher education laws in several states. Florida passed the so-called Anti-Woke Act in 2022, which was directed against DEI measures, but also against certain tenets of critical theory. More recently, Ohio and Indiana have proposed or passed far-reaching changes to higher education laws. State universities are particularly affected: Boards of Trustees, supposedly representatives of the public interest, are becoming an extension of the governments. Academic participation (“shared governance”) is being curtailed, while presidential authority is being expanded. The freedom to teach is restricted, for example in relation to issues of identity politics. The tenure system, which protects academic freedom, is being undermined.

In 1967, the U.S. Supreme Court decision in Keyishian v. Board of Regents stated:

“The classroom is peculiarly the ‘marketplace of ideas’. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection’.”

Considering the recent development of academic freedom in the U.S.A., the suspicion arises that the political forces traditionally regarded as market-orientated and championing an extensive understanding of expressive freedoms no longer have much faith in the market of ideas and are, therefore, now intervening with the power of state authority.

Their counterargument is probably that we are dealing with a market disrupted by quasi-monopolies and in need of reorganization. However, to stick with the economic jargon, they ignore the fact that there are good reasons for competition authorities to be typically technocratic, partially depoliticized, and non-majoritarian in structure. Such features lend them credibility and acceptance.

The latest attacks on academic institutions in the U.S.A. are quite different. They seem to be characterized by the zeal of ideological culture warfare. If the government were serious about combating anti-Semitism on campus, it would collaborate with university administrators to discuss suitable measures, compare best practices, and take into account the political liberties of protesters and the autonomy of universities, at least to some extent. If the government were seriously concerned with individual equality of opportunity in the academic system, it would support a critical inventory of DEI programs, promote impact research, value their epistemic potential, and not condemn them out of hand. If the government were seriously concerned about intellectual diversity, it would ask about options for action within the framework of the existing systems of academic quality control, strengthen the inherent logic of the disciplines, and not advocate a (further) political ideologization of the campuses.

The next few months will reveal how resilient the U.S. academic system is in the face of attacks that until recently were considered unthinkable. Time will tell whether the judiciary will fulfill its task within the separation of powers and respect academic freedom as a First Amendment concern. The further fate of Harvard’s lawsuit will serve as a telling indicator for both, the autonomy of academia and the independence of the judiciary.