Trump Versus Harvard

The battle between the administration of cult leader, convicted felon, and failed President Donald Trump and Harvard University is shaping up to be more fit for a dramatic novel than an example of the proper implementation of government policies. Events also raise the age-old question involving the Trump administration about whether officials are acting due to malice or incompetence. Of course, with this administration, the answer could easily be "both." Regardless, in the dispute between the Trump administration and Harvard regarding antisemitism, Trump officials appear to have engaged in repeated episodes of shooting themselves in the foot, which have undermined potential settlements with Harvard and pushed the university towards fighting the administration in court.

Soon after taking office for his second term, Trump issued a series of executive actions, some of which dealt with combating antisemitism on college campuses. For the record, anyone who believes that this administration is authentically committed to fighting antisemitism must be seriously deluded. As I have previously documented, Trump has appointed a number of notorious antisemites to positions within his government. Trump himself recently engaged in the antisemitic trope of referring to unscrupulous bankers as "Shylocks." Nevertheless, the specter of challenging antisemitism has provided the Trump administration with a convenient cudgel with which to beat universities into submission. Based on allegations of antisemitism on college campuses, Trump has frozen billions of dollars worth of federal grants that had been committed to colleges and universities. Then, the administration has attempted to negotiate onerous terms with schools in order to reinstate the funding. Trump has so far concluded settlements with Columbia University, Brown University, and the University of Pennsylvania.

Discussions between the administration and Harvard were ongoing and appeared to be constructive when, unexpectedly, on April 11, members of Trump's Task Force to Combat Anti-Semitism sent a letter to the university containing a number of specific demands that the university was expected to meet. The letter contained requirements for changes in Harvard's hiring practices, admissions processes, reforms of academic programs, and agreement to strict government oversight. Harvard reacted very negatively to the letter, suggesting that many of the demands violated the First Amendment and unlawfully invaded the university's academic freedom. Ultimately, the university stated that "Harvard is not prepared to agree to demands that go beyond the lawful authority of this or any administration." This appeared to set the administration and Harvard on a direct course for conflict.

As surprising as the letter was, what happened next was even more unexpected. Trump administration officials, speaking anonymously, told the New York Times that the letter should not have been sent. According to the Times, Sean Keveney, who at that time was Acting General Counsel of the Department of Health and Human Services, was responsible for the letter. However, depending on which anonymous official you choose to believe (if any of them), the letter was either not authorized, was meant for internal circulation only, or was meant to be sent at a later date. In the Times article, Trump officials blame Harvard officials for not confirming the legitimacy of the letter before reacting to it. But, as the article quotes a Harvard statement as saying, the letter "was signed by three federal officials, placed on official letterhead, was sent from the email inbox of a senior federal official and was sent on April 11 as promised...Recipients of such correspondence from the U.S. government — even when it contains sweeping demands that are astonishing in their overreach — do not question its authenticity or seriousness."

Mistakes happen, especially with this administration. What is not normal, at least in other administrations, is the refusal to admit mistakes. As has become typical of the Trump administration, officials reacted to the error by doubling down. Trump administration officials not only stood behind the letter, but reacted with anger to Harvard's response. On April 14, just three days after the letter that was apparently not meant to be sent, the administration froze "$2.2 billion in multi-year grants and $60M in multi-year contract value to Harvard University." A week after that, Harvard University filed a lawsuit in federal court arguing that the freeze was unlawful and calling for the halt on funding to be lifted.

Harvard University is known for producing some of the world's best lawyers. The Trump administration is known for being filled with incompetent political ideologues. The outcome of a legal battle between these two parties should not be in much doubt. Sure enough, a court appearance in late July went very poorly for administration lawyers. As the New York Times reported, "A federal judge appeared deeply skeptical on Monday of the Trump administration’s efforts to strip Harvard University of billions of dollars in research funding, suggesting the school might prevail in its legal battle against the government." For his part, Trump reacted on his Truth Social social media network by writing: "The Harvard case was just tried in Massachusetts before an Obama appointed Judge. She is a TOTAL DISASTER, which I say even before hearing her Ruling." Trump promised that "When she rules against us, we will IMMEDIATELY appeal..." suggesting a long and drawn-out legal battle.

Behind the scenes, Trump officials and Harvard representatives quietly restarted their discussions. It is not clear how much progress, if any, they made. But last week, the New York Times published an article headlined, "Harvard Is Said to Be Open to Spending Up to $500 Million to Resolve Trump Dispute," which, as the headline suggests, reported that the Trump administration and Harvard were making progress towards a deal in which Harvard would pay as much as $500 million as part of a settlement. This unleashed a wave of anger at the university, which was accused of caving in to the administration. For instance, Democratic strategist Max Burns suggested that Harvard was engaged in a "stunning surrender" and that "What’s unfolding at Harvard represents perhaps their worst nightmare — an American president trampling the intellectual freedom of his own people."

But, hold your horses, the New York Times report may have been premature, if not erroneous altogether. Two days ago, The Harvard Crimson reported that Harvard President Alan Garber "has told faculty that a deal with the Trump administration is not imminent and denied that the University is considering a $500 million settlement". Moreover, Garber was reported to have "claimed that the figure was apparently leaked to the press by White House officials". The newspaper also said that Garber had told faculty members that the university was considering "resolving its dispute with the White House through the courts rather than a negotiated settlement".

The day after the report that the $500 million settlement suggestion was a leak and was not true, Sean Keveney — he of the unauthorized letter to Harvard — was removed from his acting position as Acting General Counsel of HHS and appointed Chief Counsel at the Food and Drug Administration. Keveney has been a member of the Task Force to Combat Anti-Semitism, representing HHS. It is not clear how his new job will impact that role. Keveney was replaced as Acting General Counsel by Robert Foster, previously HHS's Principal Deputy General Counsel. Michael Stuart, a member of the West Virginia Senate and former United States Attorney for the Southern District of West Virginia, has been nominated by Trump for the position but is awaiting confirmation. The upshot is that as the Trump administration and Harvard appear to be gearing up for a legal battle, one of the administration's most prominent figures in the dispute has been reassigned.

Many of the reports about the Trump administration's dispute with Harvard suggest that Trump sees the battle in very personal terms and is demanding a considerable financial payment from Harvard. Harvard officials, for their part, seem to be adamant about protecting academic freedom and withstanding inappropriate interference from the Trump administration. It's not clear that these differences can be settled out of court. Moreover, Trump is trying to find new ways to pressure Harvard. For instance, Trump recently threatened Harvard's accreditation. At the same time, Harvard is facing considerable pressure to hold out against Trump. If both sides continue to take hardlines, this dispute will probably be long-lasting. However, as has been seen in the case of other universities, an agreement could come quickly and unexpectedly. Based on events so far, whatever happens will probably be unusual and far from normal.