Crimson chutzpah: Censorious Harvard accuses feds of violating its First Amendment rights

Harvard has wrapped itself in the First Amendment as it battles the Trump administration over campus antisemitism, but the university might have more credibility if its record on free speech weren’t so dismal.

For years, Harvard has brought up the rear on the Foundation for Individual Rights and Expression’s annual College Free Speech Rankings. In 2023, it became the first school to earn a score of 0.00 out of a possible 100.

Now, in an impressive display of chutzpah, Harvard has accused the administration of encroaching on its speech freedom by pulling billions of dollars in federal funding after the university refused to overhaul its admissions, curriculum and hiring policies.

The lawsuit argued that the “First Amendment does not permit the Government to ‘interfere with private actors’ speech to advance its own vision of ideological balance,’” nor does it let the government threaten sanctions to suppress “disfavored speech.”

“The Government’s attempt to coerce and control Harvard disregards these fundamental First Amendment principles, which safeguard Harvard’s ‘academic freedom,’” said the April 14 motion filed in U.S. District Court for the District of Massachusetts.

Harvard makes a valid legal point: The First Amendment prevents the government, not private universities, from interfering with free speech. Still, the university’s battlefield conversion is full of irony.

Last year, the Foundation for Individual Rights and Expression underscored Harvard’s consistent ranking at the bottom of its free speech ratings by giving the university a tongue-in-cheek Lifetime Censorship Award.

“We’ve not been shy about our criticisms of Harvard as being a place where free expression has gone to die,” Tyler Coward, the group’s lead counsel of government affairs, told The Washington Times. “They have created over the years a political monoculture on campus and enforced that monoculture through administrative power and social sanction among both students and faculty.”

Kenneth Marcus, founder and chairman of the Brandeis Center, said this isn’t the first time Harvard has played both sides of the free speech issue.

“There’s no question that elite institutions like Harvard have always had a double standard when it comes to free speech,” he said. “They’ll protect the free speech of certain groups and not others, and Jewish students tend to get the short end of the stick. That’s true of Harvard, but it’s also true of lots of other places as well.”

Harvard may be a reprobate on the free speech front, but the Foundation for Individual Rights and Expression isn’t holding that against the university as it seeks to reclaim its access to federal contracts and grants.

The foundation filed a friend-of-the-court brief last week supporting Harvard’s motion to block the administration’s freeze orders and contract terminations.

“For years, FIRE has been a tough critic of Harvard’s frequent failure to uphold its promises of freedom of expression and academic freedom,” foundation legal director Will Creeley and attorney Colin McDonell said in a statement. “But our previous criticisms do not justify in any way the Trump administration’s attempt to coerce Harvard into abandoning its First Amendment rights and its autonomy as a private institution.”

Others filing briefs in support of the university include a group of 12,000 Harvard alumni, 20 Democratic state attorneys general and 24 universities, including fellow Ivy League institutions Brown, Dartmouth, the University of Pennsylvania and Yale.

The foundation’s brief defended Harvard from a “hostile federal takeover” but refused to gloss over the “well-deserved” criticism of the university’s free speech offenses.

“Among other missteps, Harvard has maintained illiberal speech codes and unfair disciplinary procedures, pressured students to sign a civility pledge, blacklisted members of independent student organizations, and punished faculty for defending unpopular clients and making unpopular arguments,” the brief said.

The Trump administration issued its list of demands on April 11 after finding that Harvard violated federal civil rights law with its lackluster handling of campus antisemitism.

The checklist includes adopting merit-based hiring and admissions, screening out international applicants “hostile to American values,” increasing viewpoint diversity in admissions and hiring, and halting diversity, equity and inclusion programs.

Harvard rejected the demands. It argued that the administration’s conditions were overbroad and “not sufficiently related to the government’s previously identified concerns about antisemitism.”

Mr. Marcus disagreed.

“Most of the remedies that the Trump administration is seeking are related, whether directly or indirectly, to antisemitism,” he said. “Some critics have insisted that the Trump team is demanding viewpoint diversity because it has unrelated ideological interests in having a broad range of speakers, but the fact is that a political orthodoxy in the Ivy League has facilitated the development of extreme opinions that are deeply intertwined with antisemitism.”

The White House attacks in particular the DEI culture, which divides people into categories of “oppressed” and “oppressor.” The vast majority of Jews, by virtue of their pro-Israel stance, are considered oppressors.

“In pushing universities to address DEI and viewpoint diversity, the Trump administration is dealing with some of the underlying problems that antisemitism emerges from,” Mr. Marcus said. “You can’t just treat the symptoms without going at the underlying disease.”

Has Harvard seen the light? Not according to Henry Moss, a Harvard student who, in an op-ed headlined “Free Speech Is Dead at Harvard. I Doubt It’s Returning Anytime Soon,” said the campus climate remains oppressive.

“Unless Harvard makes serious changes to the campus environment, nothing will change,” Mr. Moss wrote in the Feb. 19 column for the Harvard Crimson. “The University will remain overwhelmingly liberal, with the most extreme voices — those that are most interested in silencing any dissent — dominating the discussion.”

Whether Harvard’s volte-face on freedom of expression presages a change in the university’s censorious culture remains to be seen, but free speech advocates can dream.

“I think a lot of people who have been watching this for a long time may be incredulous about Harvard’s new position,” Mr. Coward said, “but I think we should hold Harvard to its newfound appreciation for the First Amendment moving forward instead of focusing exclusively on its transgressions.”

The Justice Department’s response to Harvard’s motion to dismiss is due Monday, and amicus briefs supporting the government’s position are due June 23. The deadline for Harvard’s reply is June 30.