Harvard fights back as antisemitism battle escalates

The Trump administration significantly escalated its battle with Harvard University over how it addressed antisemitism on Monday, formally accusing the university of violating federal civil rights law and threatening immediate withdrawal of funding. But Harvard immediately pushed back via a revised filing to the Federal Court.

On 30 June, the Office of Civil Rights (OCR) of the Health and Human Services Department issued a Notice of Violation (NoV) letter declaring that Harvard violated Title VI of the Civil Rights Act (CRA, 1965) by being “in some cases deliberately indifferent” and in others “a wilful participant in antisemitic harassment of Jewish students, faculty, and staff”, especially during the pro-Palestinian protests following the start of the Israel-Hamas war.

After being served a NoV declaring that Harvard violated Title VI of the Civil Rights Act, the university filed papers in the Federal Court stating that “us[ing] the power of the State to punish or suppress” academic decisions the government opposes is “presumptively unconstitutional”.

Harvard’s lawyers reworked a brief scheduled to be filed that afternoon asking the Federal Court to vacate earlier government orders freezing US$2.6 billion of research grants.

The additions to the filing argue that the government violated Title VI’s administrative requirements and that it erred by relying on Harvard’s own report on antisemitism instead of conducting its own investigation.

The NoV is a significant escalation in the Trump administration’s battle with Harvard, as it asserts: “Failure to institute adequate changes immediately will result in the loss of all federal financial resources.”

Just ten days earlier, amidst a number of articles in the media about behind-the-scenes negotiations between Harvard and the administration, President Donald J Trump posted on Truth Social, ending with his trademark use of capital letters: “We have been working closely with Harvard, and it is very possible that a Deal will be announced over the next week or so.

They have acted extremely appropriately during these negotiations, and appear to be committed to doing what is right. If a Settlement is made on the basis that is currently being discussed, it will be ‘mindbogglingly’ HISTORIC.”

JTFCA vs ATFR antisemitism reports

The NoV letter and the 57-page report accompanying it were issued by the Joint Task Force to Combat Anti-Semitism (JTFCA) that combined officials from the Department of Justice, Department of Education, Department of Health and Human Services, and the General Services Administration (which administers grants).

Struck on 3 February, the JTFCA was tasked with determining if, by failing to protect Jewish students from antisemitism, Harvard had violated Title VI of the CRA, which “prohibits discrimination on the basis of race, colour, and national origin” in federally funded agencies or institutions that receive federal financial assistance.

Basing itself on Harvard’s Antisemitism Task Force Report (ATFR) published on 29 April, the JTFCA reported that almost 60% of Jewish students surveyed reported experiencing “discrimination, stereotyping, or negative bias on campus due to [their] views on current events” [that is, Hamas’ attack on Israel on 7 October 2022 and Israel’s subsequent war against Hamas in Gaza].

The JTFCA also accepted the ATFR’s findings that “26 per cent of Jewish students surveyed reported feeling physically unsafe, and 44 per cent reported feeling mentally unsafe [at Harvard]. More than two-thirds of Jewish students “expressed discomfort sharing their opinions in general”, while 73% felt that way about expressing their political opinions.

(The ATFR also reported that Muslims too found Harvard’s leafy campus in Cambridge, Massachusetts baleful: 47% of Muslim students surveyed indicated that they feel physically unsafe on campus, and 61% feel mentally unsafe, information the JTFCA ignored in its report.)

What is Harvard’s culpability?

The JTFCA report lists numerous examples of antisemitic acts recorded by Harvard’s ATFR, among them, a Jew wearing a yarmulke being spat on, Orthodox Jews being told to hide their kippahs under baseball hats and being jeered at with calls including shouts of “Heil Hitler!”

On Sidechat, a social media platform limited to students with Harvard email addresses, calls to ‘gas all the Jews’ and ‘let ‘em cook’ received upvotes. Student and faculty groups posted Instagram cartoons that included the Star of David, dollar signs, and nooses.

The JTFCA quotes the ATFR saying that “some Jewish students were informed by their peers, teaching fellows, and even in some cases, faculty, that they were associated with something offensive and, in some cases, that their very presence was offensive.”

The JTFCA declared Harvard’s institutional responses, including a compliance review of Harvard Medical School’s commencement ceremony, which was accused of being antisemitic, and the placing of the Palestine Solidarity campaign on probation, “too little, too late”.

The government investigators were also dismissive of Harvard’s replacement of the leadership of the Center for Middle Eastern Studies and the two years it has taken to incorporate “antisemitism and anti-Israel bias” into university training sessions.

Since the above incidents were reported by Harvard itself, whether they occurred or not is not the legal question at the heart of the NoV. What is Harvard’s culpability?

Accordingly, the government asserts that Harvard “had ‘actual knowledge’ of the harassment for the purposes of Title VI liability”, as demonstrated by the fact that on 27 October 2023 (that is, three weeks after Hamas’ attack on Israel and ten days after Israel invaded Gaza), “Harvard University announced the formation of an Anti-Semitism Advisory Group.”

Three weeks later, campus police restricted access to certain buildings. In December, Harvard’s then president, Claudine Gay, testified before Congress on antisemitism on campus.

Further, the JTFCA asserts: “Harvard exercised substantial control over the harassment and discrimination that Jewish and Israeli students experienced,” though not because America’s oldest and most prestigious university coordinated it.

Rather, the government bases this argument on a 1999 decision of the Supreme Court of the United States (SCOTUS) in which it ruled that an education institution “exercises substantial control over both the harasser and the context in which the known harassment occurs” when it “occurs during school hours on school grounds.”

In essence, the argument is that Harvard is culpable because it did not stop the harassment by using its powers to control its property, remove persons who are harassing others and prevent them from enjoying access to all campus facilities.

The government also cites a 2003 case involving the State University of New York, in which the state court ruled that “institutions can be found to be deliberately indifferent to discrimination ‘when remedial action only follows after a lengthy and unjustifiable delay’”, as support for its claim that Harvard’s slowness in acting against antisemitism amounts to discrimination.

First Amendment rights

In their filing in the Federal Court on Monday, Harvard’s lawyers ignored almost all of the government’s arguments and focused attention on the university’s First Amendment rights and the government’s ignoring of both the mechanisms Title VI lays out for an NoV to be issued and the government’s refusal to follow the regulations laid out in the Administrative Procedures Act (APA), which covers how grants are to be monitored and, if necessary, withdrawn.

The government agrees that Harvard enjoys First Amendment protections.

Yet, at the same time, the government “does not dispute that its mandatory conditions [for example, turning over student disciplinary records] and retaliatory actions [to continue receiving federal funds] are viewpoint based”, write Harvard’s lawyers; citing a 2024 (SCOTUS) decision that found for the National Rifle Association, the lawyers told the court that “‘us[ing] the power of the State to punish or suppress’ Harvard’s ‘disfavoured expression’ [including academic decisions the government opposes] is ‘presumptively unconstitutional’.”

Harvard’s lawyers mounted the similar arguments against an entirely new legal theory proffered by the government, “that Harvard’s First Amendment rights ‘are circumscribed’ because Harvard is a government ‘contractor’.”

Additionally, while the government asserted its actions against Harvard were solely because of the university’s violation of Title VI and its failure to protect Jewish students, Harvard’s lawyers adduced numerous examples of administration officials saying that they were acting against Harvard because it lacked “viewpoint diversity”.

Secretary of Education Linda McMahon’s letter of 5 May, for example, criticised Harvard for being “left-leaning” and opposed to free markets.

The lawyers concluded this part of their brief by quoting Trump saying that “every time [Harvard] fight, they lose another $250 million.”

Trump administration’s ‘authoritarian desires’

Harvard’s arguments that the Trump administration was violating both Title VI and the APA are broadly similar. Even though the government claims that its actions against Harvard are underwritten by the fact that Harvard violated Title VI’s provisions against discrimination, Harvard’s lawyers argue, the government has not followed the investigative procedures mandated by Title VI and the APA into events on Harvard’s campus.

“The administrative record does not document any meaningful investigation by the Government into antisemitism on Harvard’s campus,” the brief states, before continuing: “Nor does it identify any specific incidents of such conduct [from its own research], let alone connect such incidents to any terminated grants.”

In other words, the incidents the JTFCA pulls from Harvard’s report have no relation to the grants, either for medical [and] health or defence research.

“The most the Government can do is repeatedly cite Harvard’s own Task Force report.” And, equally importantly, since this “report was released two weeks after the Government froze all research funds to Harvard”, it could not “possibly have been the basis for the challenged actions”.

In other words, the Trump administration is engaged in post hoc reasoning in regard to the legal warrant for its actions against Harvard, which is illegal. Harvard’s lawyers go on to point out that the report itself undercuts the government’s claim that Harvard was dismissive of the complaints by Jewish students.

“The fact that Trump gutted Harvard’s funding first, before an investigation, is evidence that these actions are purely political. The goal of this notice is to punish Harvard for standing up against the administration.

The end goal is to make all academic institutions capitulate to this administration’s authoritarian desires,” wrote Isaac Kamola, professor of political science at Trinity College (Hartford, Connecticut) and director of the Center for the Defense of Academic Freedom, in an email to University World News.

A central part of Harvard’s brief argues against the Government’s claim that it has the inherent power to cancel contracts; the APA lays out the investigative procedures that must be followed to cancel contracts at “agency discretion”, which the Trump administration asserts boils down to government policy.

While discussing the requirements under the APA, the Harvard lawyers write, the Government “does not identify any document in the administrative record [of Harvard] where an agency analysed and weighed evidence to reasonably conclude that Harvard has failed to ‘take adequate actions to prevent antisemitism’.”

The lack of the proverbial “smoking gun” leads the government, Harvard’s lawyers assert, to fall back on the fact that at times the officials responsible for the APA have “accept[ed] explanations ‘of less than ideal clarity’”.

Harvard’s lawyers respond to this fact by stating baldly: “The APA may sometimes be forgiving, but it is not standardless.”

“The Government cannot simply proclaim that it was acting to combat antisemitism without pointing to any record evidence [from its own investigation], without explaining why Harvard’s myriad of actions addressing antisemitism are insufficient, without considering whether any legitimate concerns about antisemitism could be addressed through less drastic actions.”

As for the Trump administration’s claim that it is fighting antisemitism, Kamola was having none of it. “Let’s be clear. The Trump administration does not care about addressing antisemitism. Members from this administration have expressed admiration of Hitler and supported Germany’s Nazi Party.

“Trump has surrounded himself with a cadre of proud white nationalists, neo-Nazis, and Holocaust denialists. And his top advisor, Elon Musk, gave a Nazi salute during an inauguration event and faced no consequence for doing so,” he stated.