Last time U.S. District Judge Allison Burroughs sided with Harvard in a case about the university’s alleged discrimination, it ended with the Supreme Court declaring race-conscious admissions unlawful at schools across the country. Harvard won its battle in the lower court on the way to losing the broader war. As it turns out, the same federal law at issue in the affirmative-action case, Title VI, is a basis of Harvard’s challenge to the Trump Administration’s freezing and terminating of nearly $2.2 billion in federal grants to the university this past spring. On Wednesday, Judge Burroughs gave Harvard a win that vindicated broad principles at stake for universities and the rule of law. But the victory will not end Harvard’s pain, and it remains to be seen whether higher education can triumph in the end.
Since January, the Trump Administration has threatened the federal funding of hundreds of universities, in a campaign that is ostensibly about enforcing civil-rights laws, particularly regarding antisemitism on campus, race in admissions decisions, D.E.I., and transgender athletes. Columbia, Brown, and the University of Pennsylvania have made deals with the Administration to restore their funding, and other universities have conformed to what the Administration seems to want in order to avoid becoming targets themselves. But Harvard—with its outsized brand, its unrivalled endowment of fifty-three billion dollars, and its researchers’ large share of federal grant awards—is the big game in the Trump Administration’s pursuit of submission. And, perhaps for that reason, it has been the only university to sue the Administration. But Harvard’s fight has come to represent much more than saving its own skin: the university is attempting to assert the value of higher education to our democratic society. That value is ironically and necessarily bound up with independence from government control, even as its realization depends on receiving enormous sums of government money.
The legal matter began in March, when the Administration announced that it was reviewing Harvard’s federal funding because of its alleged failure to address antisemitism on campus, particularly in the wake of the October 7th attack on Israel, when Israel began its war on Gaza, and pro-Palestine and anti-Israel activists launched a new protest movement. Title VI of the Civil Rights Act, enacted in 1964, prohibits discrimination on the ground of “race, color, or national origin” in institutions that receive federal funding; for the past two decades, the executive branch has interpreted those words to protect against antisemitism. In April, the Administration presented Harvard with conditions that the university needed to satisfy in order to continue receiving federal funds, such as putting a lien “on all Harvard assets” and either changing the leadership of “problematic” departments or placing them in “receivership.”
While Harvard was negotiating with the Administration to preserve its funding, the Administration sent an unexpected letter, on April 11th, demanding additional reforms, the majority of which were not about antisemitism—including an “audit” for “viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse”; hiring and admitting “a critical mass” of new faculty and students to achieve “viewpoint diversity”; and restructuring the university’s governance. Harvard publicly rebuffed the demands; the university’s president, Alan Garber, stated that no government “should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.” Within hours, the Administration announced a freeze on Harvard’s existing federal grants. It soon followed up with stop-work orders, grant terminations, and a notice that Harvard would no longer receive federal funds.
The decision to stop the flow of money led Harvard to file suit in federal court in Boston, alleging constitutional and statutory violations. That lawsuit was combined with a similar one filed by the Harvard chapter of the American Association of University Professors, and resulted in the district court’s clear rebuke to the Administration. Judge Burroughs found that the government had unconstitutionally retaliated against Harvard for exercising First Amendment rights. That is, Harvard had refused the government’s attempts to “control viewpoints at Harvard” and decided to litigate, and the government had unlawfully punished Harvard by taking away federal funding. The court was unpersuaded by the Administration’s claim that the funding shutoff was not retaliatory but, rather, motivated by “opposing antisemitism”—the demands that Harvard had rejected related not to antisemitism but instead to reforming its ideology, hiring, admissions, and teaching. Moreover, there was no evidence that, in the two weeks between announcing an antisemitism review and freezing funding, the government had actually examined antisemitism at Harvard; it had only learned that “Harvard would not capitulate to government demands that it audit, censor, or dictate viewpoints of staff and students.”
The government’s failure to investigate antisemitism also led the court to find that it violated Title VI—which explicitly does not allow the government to simply cut off federal funding whenever it claims a Title VI violation. The statute instead requires that the government first follow specific procedures, including determining that compliance cannot be achieved voluntarily, holding an on-the-record hearing, and sending a written report to Congress. The Administration had done none of these things. (It argued that the procedural requirements of Title VI don’t apply because a separate federal regulation allows the termination of awards that no longer fulfill “program goals or agency priorities.”)
Harvard also won on the ground that the government violated the Administrative Procedure Act, which requires federal agencies to act in a way that isn’t “arbitrary and capricious.” The court observed that the government had not provided “a reasoned explanation as to how the agency determined that freezing funding would advance that goal” of countering antisemitism. Judge Burroughs seemed to take it as a given that, if the government were not being arbitrary and capricious, it would have engaged in a cost-benefit analysis, weighing “the value of the research funded by a particular grant against the goal of combating antisemitism at Harvard.” An interesting, if controversial, implication of this reasoning is that, if the value of the funded research at Harvard is greater than the value of mitigating antisemitism at Harvard, it might effectively be unlawful for the government to choose to act on the latter.
In her decision, Judge Burroughs was obviously persuaded by Harvard’s narrative of the case and recited much of it. The court described Harvard’s efforts, since early 2024, to insure “that its campus is safe and welcoming for Jewish and Israeli students” by, for instance, disciplining students and faculty, promoting “ideological diversity and civil discourse,” limiting protest, and “expressly prohibiting unauthorized encampments, exhibits, and displays.” The court seemed to want to establish off the bat that Harvard was acting in good faith to address antisemitism, and that it was the government’s bad-faith shortcoming not to have recognized that fact. The court’s conclusion was that the Administration “used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.”
