Harvard Takes the Gloves Off

Its Lawsuit, and Choice of Lawyers, Make Plain How Lawless This All Is

Whether you’re a lawyer or not, there’s nothing like a strong legal complaint to boil down what seem to be complex issues into their simplest form.

So I decided to take a close look at the Harvard complaint against the Trump Administration in its recently filed lawsuit…

And as I expected, it does a wonderful job laying out just how utterly lawless Trump’s behavior has been toward Harvard and other higher ed institutions.

Both the facts and the law are damning.

And the complaint makes plain why not a single institution should cave amid Trump’s bluster and outrageous actions. Caving to such lawlessness is a step that itself undermines the rule of law.

Finally, take note of the lawyers who are making Harvard’s case. It shows what a corner Trump has painted himself into.

The Basics:

1. Like many institutions, Harvard applies for and receives tax dollars to conduct breakthrough scientific and medical research. Decisions for federal grants and contracts are made through specific, legally mandated processes. No surprise, overall, Harvard does groundbreaking work. “Federal funding has enabled researchers at Harvard to develop novel drugs to fight Parkinson’s and Alzheimer’s diseases, engineer nanofibers to protect servicemembers and first responders, support American astronauts in space, and design an artificial intelligence system that can be used to diagnose and treat cancer.”

2. As part of its broader attack of higher ed institutions, the Trump Administration recently demanded that in order to continue to receive research funds it had earned through the grant process, Harvard must undertake ten specific steps, including: “The Government dictated that Harvard “reform and restructur[e]” its governance to “reduc[e] the power” of certain students, faculty, and administrators; [I]t required that Harvard hire a third-party to conduct an “audit” of the viewpoints of Harvard’s student body, faculty, and staff; [t]hen, based on the results of this university-wide viewpoint audit, Harvard must “hir[e] a critical mass of new faculty” and “admit[] a critical mass of students” to achieve “viewpoint diversity” in “each department, field, or teaching unit”—to the Government’s satisfaction as determined in the Government’s sole discretion….And the Government has demanded that Harvard terminate or reform its academic “programs” to the Government’s liking.”

3. The letter stated “'the Government’s expectation of ‘immediate

   cooperation in implementing these critical reforms’ if the University wanted to ‘maintain Harvard’s financial relationship with the federal government.’”

4. The complaint describes this shakedown in appropriately blunt terms: “All told, the tradeoff put to Harvard and other universities is clear: Allow the Government to micromanage your academic institution or jeopardize the institution’s ability to pursue medical breakthroughs, scientific discoveries, and innovative solutions.”

5. When Harvard refused to comply with these 10 demands, the Administration froze “$2.2 billion in multiyear grants and $60M in multiyear contract value to Harvard University,” including an immediate flow of stop-work orders.

6. But that was just the beginning: “In the days since Harvard’s [response], the Government has launched multiple investigations and other actions against Harvard. On April 16, 2025, for example, DHS threatened Harvard’s eligibility to enroll international students….On April 17, 2025, the House Committee on Oversight and Government Reform announced an investigation into Harvard…Also on April 17, 2025, the Department of Education sent a records request to Harvard….And multiple news outlets have reported that the Internal Revenue Service is considering revoking its recognition of Harvard’s Section 501(c)(3) tax- exempt status.”

Once you see the all-out assault on Harvard framed this way, the egregious illegality of it all could not be more clear.

Why so illegal? Boiling it down, the Complaint makes two key arguments:

The First Amendment and Academic Freedom

“‘[A]cademic freedom’ is ‘a special concern of the First Amendment’ and receives heightened protection.” And “the Supreme Court has recognized [that ‘[a]cademic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also . . . on autonomous decisionmaking by the academy itself.’…Colleges and universities have a constitutionally protected right to “manage an academic community and evaluate teaching and scholarship free from [governmental] interference.’”

As in other areas of First Amendment law, using threats of funding so that the government can infringe upon such core rights is a blatant violation of the First Amendment:

“The Government’s demands on Harvard cut at the core of Harvard’s constitutionally protected academic freedom because they seek to assert governmental control over Harvard’s research, academic programs, community, and governance….And they bear no relation to Harvard’s federal funding….(Government may not “leverage funding to regulate speech outside the contours of the program itself”). The Government’s demands seek to overhaul Harvard’s governance, control Harvard’s faculty hiring, and dictate what faculty may teach Harvard students. Put simply, the conditions seek to supplant Harvard’s ‘autonomous decisionmaking.’”

Restricting what Harvard may teach students, who they hire to do so, who leads the university, what student groups are recognized, what students are admitted, what academic content is to be taught, and what government-defined balance of viewpoints must be achieved “in every “department,” “field,” and “teaching unit,” all infringe on authority that “rests with the University rather than the Government.”

Here, Trump is essentially demanding: “Unless Harvard does exactly what the Government wants in the way the Government wants and achieves the precise balance of viewpoints the Government wants, Harvard stands to lose billions of dollars in federal funding.”

The government is seeking to “leverage Harvard’s federal funding to indirectly infringe Harvard’s constitutionally protected academic freedom….‘On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.’”

Additionally, the order freezing funds “also violates the First Amendment because it is direct retaliation for Harvard’s April 14 letter and statement refusing to comply with the Government’s demands. The First Amendment ‘prohibits government officials from subjecting an [entity] to retaliatory actions for engaging in protected speech.’”

Violating Rules About Cancelling Grants

Harvard makes a second compelling argument.

Federal law lays out a “detailed and mandatory framework” guiding how the federal government must terminate contracts and grants for research.

And it’s fair to say….this ain’t it.

To cancel a research grant for discrimination (which is the government’s purported claim) requires notice of a specific violation justifying termination; an opportunity for the institution to voluntarily remedy the violation by voluntary means; if voluntary compliance isn’t possible, a hearing process must take place with express findings made on the record; and a written report must be filed to the Senate and the House within 30 days.

None of this happened.

Instead, Trump and his lackeys sent a series of letters which “varied significantly from one another in their threats and identified areas for reform.” And “[n]ot one of the letters identified a Title VI violation or a specific measure Harvard could take to rectify the alleged violation.”

In addition, federal law “does not permit wholesale freezing of a recipient’s federal financial assistance. Instead, it requires that a ‘refusal to grant or to continue assistance’ be ‘limited in its effect to the particular program, or part thereof, in which . . . noncompliance has been so found.’”

Here, “Defendants froze Harvard’s federal financial assistance without limiting the effect of this action to any particular program or part thereof.”

In sum: “whereas Congress specified that Defendants must follow the delineated statutory procedures first and freeze research funding after (and then only as a last resort), here Defendants have done the precise opposite: they issued a Freeze Order on research funding first (with no process or opportunity for voluntary compliance) and used that freeze as leverage to negotiate. Such action is flatly unlawful and contrary to statutory authority.”

Combating Anti-Semitism

Throughout the complaint, Harvard makes clear that the government’s public justification for its actions—combatting anti-semitism—is a red herring for what is a much broader assault on institutions such as Harvard.

First, Harvard documents at great length the steps and reforms it has undertaken to combat anti-semitism on campus. And explains that that work is ongoing.

Second, it makes clear that most of what the Trump administration is demanding spans far more broadly than combating anti-semitism: “Although some of the demands outlined by the government are aimed at combating antisemitism, the majority represent direct governmental regulation of the ‘intellectual conditions’ at Harvard.” At the same time, “rather than engage with Harvard regarding [its] ongoing efforts [to combat anti-semitism], the Government announced a sweeping freeze of funding for medical, scientific, technological, and other research that has nothing at all to do with antisemitism and Title VI compliance.”

Third, as referenced above, Harvard spells out that federal law mandates a clearly defined process the government must follow to pinpoint and seek accountability for anti-semitism on campus that runs afoul of federal nondiscrimination laws (Title VI of the Civil Rights Act of 1964.).

But as summarized above, the government took no steps to actually follow that procedure or make that showing in the way required by federal law. Again, instead of following the mandated process, it sent a series of letters that do not comport with that process. And, “[n]ot one of the letters identified a Title VI violation.” To make the bad-faith even more clear, the Administration and Harvard had been working to schedule an on-campus visit of Trump officials to investigate anti-semitism (“A campus visit was scheduled for late April 2025”), but the letters threatening funding and making demands, and the later freeze, came without the visit even taking place.

Then, “Defendants did not attempt to effect compliance with Title VI using any means other than immediately freezing Harvard’s federal financial assistance,” which violates the law.

Finally, the complaint marshals other evidence that a much deeper assault on ideology is driving the attack on Harvard and other institutions:

“President Trump’s campaign website touted his plan ‘to reclaim our once great educational institutions from the radical Left and Marxist maniacs’ including by threatening to ‘take the billions and billions of dollars that we will collect by taxing, fining, and suing excessively large private university endowments’ from ‘Harvard and other once-respected universities.’”

“On April 1, 2025, at a private lunch, President Trump proposed canceling all federal funds promised to Harvard. According to an anonymous source, President Trump asked, “What if we never pay them? . . . Wouldn’t that be cool?".”

[My note—not in the complaint: Such rhetoric confirms that these attacks are driven by the thinking that figures like JD Vance have espoused for years—that “universities are the enemy.” Remember, Vance said: “We are giving our children over to our enemies, and it’s time we stopped doing it….We have to honestly and aggressively attack the universities of this country.” Which is precisely what this is.]

Who are the Lawyers?

Now, I’m not a DC/legal insider, so I hadn’t noticed one other detail until I got to the last page of the complaint. But when I did, two more interesting things stuck out like sore thumbs.

Two names.

Two big names—and the lawyers leading Harvard’s defense.

One is Bill Burck.

Bill and I were in the same year in college (we even took English 129 together freshman year, which included a long, close read of The Iliad), and also overlapped at law school. We always got along well.

But after law school, while I moved back to Ohio to spend my years driving to county fairs in my F-150 pickup, Bill quickly rose to the highest heights of conservative legal circles and power. He clerked for Justice Anthony Kennedy; served as Special Counsel and Deputy Counsel to President George W. Bush (working for Brett Kavanaugh); later played a central role in the Kavanaugh nomination process; represented a number of conservative figures through the Mueller investigation (Don McGahn, Steve Bannon and Reince Priebus); once represented the Koch brothers’ Americans for Prosperity; recently signed on to represent The Trump Organization on ethics issues; and sits on the board of Fox News.

The other name on the complaint is Robert Hur. You’ll remember him as the U.S. Attorney who did a number on Joe Biden in the classified records investigation and report. Before that, he clerked for Chief Justice Rehnquist, and was a top aide to Rod Rosenstein before Trump nominated him to be the United States Attorney for Maryland.

In short, these are two conservative super lawyers.

The fact that they took on this case—at a time that Trump is trying to bully law firms (just like universities) from taking on clients he views as enemies—and then filed a complaint packing the punches I’ve describe above, says a lot.

This will not go well for Trump.

UPDATE: shortly after I first posted this, Trump’s tweet from this morning came across my feed. Clearly, he too understands the significance of the lawyers involved in this case, and is none too pleased. (He is talking specifically about Bill Burck)

To the other schools out there….read this complaint, and follows Harvard’s lead.

Do NOT weaken the already frayed rule of law by caving to such blatantly lawless bullying.

April 23, 2025—Day 154

Donald Trump once again sided with Russia in its ongoing battle with Ukraine, blaming Ukraine President Zelensky for making “inflammatory statements” simply for stating (the truth) that Russia illegally occupied Crimea and refusing to cede it back: “if he wants Crimea, why didn't they fight for it eleven years ago when it was handed over to Russia…"?"

It was not handed over. It was seized in violation of international law.

And this anti-Ukraine rhetoric comes amid ongoing and fierce Russian attacks on Ukrainian cities. As Alexander Vindman says: “it’s a coordinated effort.”