ILYA SHAPIRO: Yes, take down Harvard but Team Trump must do it the right way

Elite universities deserve all the opprobrium they’ve been getting. They’ve discriminated on the basis of race in admissions and hiring, required loyalty oaths in the form of diversity statements, and allowed agitators to disrupt classes, block access to facilities, and wage mass campaigns of intimidation and harassment. The liberal left hand knew what the illiberal far-left hand was doing—the explosion in DEI that spawned everything from intellectual corruption and indoctrination to antisemitism and cancel culture—but was cowed into placating it.

Harvard, besides being the biggest global brand in American higher education, is at the epicenter of this crisis. For example, the Foundation for Individual Rights and Expression (FIRE) named it the worst school in the country for free speech for the last two years, the only one with a negative score. There are other schools that may be worse on other measures, but Harvard is a fitting lightning rod for popular displeasure with our gowned oligarchy.

Still, the Trump administration’s blunderbuss tactics threaten its reformist goal, with which I’m entirely sympathetic. Left-wing intolerance and perfidy have undermined universities’ core mission of open inquiry and truth-seeking, but executive-branch overreach and impatience with legal niceties have allowed Harvard grandees to don the mantle of academic freedom and educrats to dig in their heels.

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The executive branch is fully justified in launching investigations of Harvard and dozens of other schools for violating civil rights by: allowing antisemitism to flourish, using racial preferences in defiance of the Supreme Court, subverting student rights to free speech and due process, making hiring decisions based on illegal criteria, and a host of other pernicious practices. Violations of that kind do indeed imperil all federal funds, including grants to scientific and medical researchers who may want nothing to do with woke administrators, because there’s no germaneness or even proportionality requirement in Title VI of the Civil Rights Act and other relevant laws. 

It can even go after plagiarism—recall Harvard’s short-lived president, Claudine Gay, who remains on the faculty with a $900,000 salary—because that’s taxpayer-subsidized fraud.

But imposing financial consequences, let alone revoking tax-exempt status, requires waiting for those investigations to be completed so that an evidence-backed indictment can be laid at Harvard’s feet. Issuing a list of demands—in a letter that was apparently sent by mistake—won’t cut it. 

It’s not surprising that Harvard responded with a lawsuit, one it’s likely to win based on process fouls, without even reaching the substance of the administration’s charges against the school. Alas, that would damage the administration’s leverage over universities.

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The White House’s latest move further illustrates the weakness in the administration’s approach. Last week, it announced that Harvard would be cut off from the Student Exchange and Visitor Program (SEVP), meaning that the school would be unable to sponsor student visas. The move set off understandable panic, because 27 percent of Harvard students are foreigners. That’s not unusual in the Ivy League; the foreign share of Yale students stands at 28 percent, while the figure is over 50 percent at Columbia. Why so high? Follow the money: international students are more likely to pay the exorbitant sticker price of tuition, plus many foreign governments fund American universities. Unsurprisingly, Harvard immediately got a temporary restraining order, and just yesterday the same judge issued a preliminary injunction.

That’s because the ostensible basis for revoking Harvard’s SEVP certification—non-compliance with information requests—doesn’t pass the legal smell test. Visa-sponsoring schools do have to report certain things about their foreign students, like whether they’re making progress towards their degree or whether they’ve been disciplined for misconduct. But the information that Homeland Security Secretary Kristi Noem demanded goes beyond what the law requires. For example, she wants Harvard to report everything it knows about international students’ "dangerous" actions and turn over any "audio or video footage . . . of any protest activity." 

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The relevant regulation, however, requires schools to report "any disciplinary action the school takes against a student as a direct result of a criminal conviction," explicitly excluding "student life infractions." The government can certainly ask for more than is required by that provision, but Harvard is within its rights to hold DHS to the letter of the law on visa eligibility. 

Moreover, Harvard has a strong argument that the government is singling it out for its high-profile opposition. Why didn’t Secretary Noem ask for the same information from every Ivy League university or every university over a certain threshold of foreign students? 

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Why didn’t the Justice Department do this as part of the numerous civil-rights investigations described above? It’s too coincidental that Harvard is the only university suing the administration. After all, Columbia is worse at "perpetuating an unsafe campus environment that is hostile to Jewish students" and "promot[ing] pro-Hamas sympathies" (quoting Noem’s letter), but Columbia settled with the administration. 

Politically, it makes sense to go after Harvard, the self-anointed center of the academic universe, but judges don’t go in for PR stunts.

The administration is on much surer footing in pausing student-visa interviews while considering new guidance on social-media vetting, or in revoking the visas of Chinese students "with connections to the Chinese Communist Party or studying in critical fields." 

These are measured steps that are tied to specific statutory authorities. But the government can’t steal legal bases, even in pursuit of a righteous cause against bad-faith actors.

From its own perspective, the administration may prevail either way. Even if Harvard wins in court, the administration wins in the court of public opinion. But is the point to "own the libs" and make Harvard even more unpopular or to effect lasting change? 

As my colleague Chris Rufo has written, instead of "making graphic displays of force, the administration should change incentives, rewrite laws, [and] depersonalize its enforcement actions."

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