Last week, the Department of Justice filed suit against Harvard University, alleging that Harvard is violating Title VI by failing adequately to respond to antisemitism and by itself intentionally discriminating against Jews and Israelis on the basis of race and national origin, respectively. The complaint alleges, in addition to the claims under Title VI, that Harvard is in breach of the contracts for its federal grants because, as part of those contracts, Harvard provided assurances that it was in compliance with Title VI. The government seeks declaratory and injunctive relief, including a declaration that Harvard is not entitled to future payments on existing grants and must repay past grant awards for the period of alleged violation.
The lawsuit is problematic in multiple respects. This story in the Harvard Crimson (in which I'm quoted a number of times) does a nice job of explaining some of them. I'll focus attention on three of the issues here.
(1) As readers may recall, this is not the first legal battle between the second Trump administration and Harvard. In September of last year, Federal District Judge Allison Burroughs granted Harvard's motion for summary judgment, finding that the Trump administration's withholding and cancellation of various federal grants to Harvard based on alleged Title VI violations were unlawful in two main respects: (a) the federal government failed to follow any of the key steps required by statute (42 U.S.C. § 2000d-1) to withhold funds; and (b) the government's actions violated the First Amendment as retaliation, coercion of Harvard's own speech, and an effort to coerce Harvard to violate the free speech rights of students and other third parties.
That ruling is currently pending on appeal before the First Circuit. It is possible it could be reversed in part or in whole, but unless and until that happens, the government's latest lawsuit looks quite a bit like an effort to re-litigate issues that were already decided against it.
(2) The government will likely argue that this new lawsuit is not precluded by the earlier summary judgment because it comes after an investigation and a determination that, in the words of 42 U.S.C. § 2000d-1, "compliance cannot be secured by voluntary means." However, it appears that the government still has not conducted an investigation in accordance with the statutory requirements.
To be sure, the complaint claims that the administration followed a few of its statutory obligations. Paragraphs 8 and 9 respectively state that the Department of Health and Human Services (which makes and administers substantial grants) provided Harvard with notice that it had opened an investigation on February 3, 2025, and with notice of its findings on June 30, 2025. Conveniently omitted from that timeline is the fact that in between, and without adhering to the statutorily mandated procedures, on April 11, 2025, the Trump administration sent Harvard a letter demanding federal control over admissions, hiring, governance, and more.
That omission severely undercuts the new complaint’s assertion that it is authorized by the fact that the Trump administration “has determined that compliance cannot be secured by voluntary means,” as required by 42 U.S.C. § 2000d-1before resort is made to funding cutoffs. For one thing, the administration initially cut funds long before any determination that compliance could not be secured by voluntary means. For another, it is noteworthy that most of the allegations in the government’s new complaint are taken from a report by a task force Harvard itself convened to assess its response to antisemitism and anti-Israeli bias. The production of that report and the follow-up measures Harvard has taken are hardly consistent with the Trump administration’s portrayal of Harvard as indifferent to antisemitism and anti-Israel bias. Moreover, the fact that the government relies so heavily on Harvard's own report strongly indicates that it did not conduct any kind of thorough investigation of its own.
(3) Nor can the Trump administration be taken at its word that voluntary compliance cannot be secured. Negotiations have apparently stalled, but that hardly means that Harvard is unwilling to comply voluntarily with Title VI. Rather, it mostly indicates that Harvard is unwilling to accede to all of the additional conditions that the Trump administration is demanding—including the payment of tribute or ransom wholly unauthorized by any statute and the sacrifice of institutional autonomy. I would not be surprised to see a judicial conclusion that the government has been negotiating in bad faith and thus that its determination that voluntary compliance cannot be obtained is legally invalid.