HE groups welcome court ruling on Harvard funding cuts

In a landmark ruling likely to affect other university-related cases, the United States district judge of the United States District Court for the District of Massachusetts, Allison D Burroughs, ruled that the freezing of billions of dollars of research grants to Harvard University by the Trump administration was unlawful and had nothing to do with any of the administration’s purported fight against antisemitism at universities.

“A review of the administrative record makes it difficult to conclude anything other than that Defendants [the Department of Education, DoE, and the Department of Justice, DoJ] used antisemitism as a smokescreen for a targeted, ideologically motivated assault on this country’s premier universities and did so in a way that runs afoul of the Administrative Procedures Act [APA], the First Amendment [to the Constitution, which bans ‘viewpoint’-based discrimination by the government] and Title VI [of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, colour, national origin, sex, religion, shared ancestry and several other grounds],” the ruling stated.

Burroughs’84-page decision chastised the Department of Health and Human Services (DHHS), which made the medical grants and froze the medical research grants, and the freezing of others by the Defence Department when “[t]here was no obvious link between the affected projects and antisemitism.”

In addition to repeating the claim – made by the original case brought by both the Harvard branch of the American Association of University Professors (AAUP) and the national organisation, and Harvard’s case, which was joined with the AAUP’s – that the freezing of medical grants meant the loss of “life-saving medical research”, Burroughs slammed the government for claiming that it was motivated by the imperative to root out antisemitism and for not taking into account how the wholesale freezing of grants would affect Jewish faculty and students.

“[R]esearch was frozen without any sort of investigation into whether particular labs were engaging in antisemitic behaviour, were employing Jews, were run by Jewish scientists, or were investigating issues or diseases particularly pertinent to Jews (such as, for example, Tay-Sachs disease), meaning that the funding freezes could and likely will harm the very people Defendants professed to be protecting.

“And it is unlikely that any Jew, even one directly impacted by antisemitism, would be in favour of stopping research on, for example, Alzheimer’s disease, heart disease, or autism, to name a few, as a means of redressing their unrelated harm,” wrote Burroughs.

A win for higher education

The ruling was welcomed by Todd Wolfson, national AAUP president, who said in a press release: “This is a huge win for all of American higher education, for science, and for free and critical thought in this country. Time and again, Trump has tried to restrict speech and cripple lifesaving university research. As today’s victory shows, Trump’s war on higher education is unconstitutional.

“We will continue to stand up and fight back against these attempts to dismantle our universities, terrify students and faculty, and punish hospitals and scientific research for not bowing to authoritarianism.”

At an online press conference, Veena Dubal, the National AAUP general counsel, said: “We have never seen or faced a crisis like we see today. Unlike during the Cold War, when ‘communists’ alone were targeted, today entire universities are being targeted. The Trump administration is trying to dismantle the system of higher education that has made the US the leading nation in science, critical thought and upward mobility.

“The story here is not that university leadership stood valiantly alone and fought back against the Trump administration … [F]aculty and graduate students, in their individual capacities, put themselves at risk, subject to potential retaliation by an unpredictable federal government, by writing declarations, sharing their information and having their harms delineated in our filings. And it was those harms, the spectacularity of those harms [that were quoted by Judge Burroughs], that won this case for us.”

In an email to University World News, Lynn Pasquerella, president of the American Association of Colleges and Universities, warmly welcomed the decision.

“Judge Burrough’s ruling is both a decisive affirmation of academic freedom, institutional autonomy, constitutional integrity, foundational to the strength of American higher education and a rejection of the weaponisation of antisemitism as a means of political retaliation aimed at ideological conformity.”

White House to appeal

The White House was not pleased and immediately announced it would appeal the ruling.

Speaking for the president, White House Assistant Press Secretary Liz Huston said: “Just as President Trump correctly predicted on the day of the hearing, this activist Obama-appointed judge was always going to rule in Harvard’s favour, regardless of the facts.”

Her statement, reported by MSN.com, continued: “To any fair-minded observer, it is clear that Harvard University failed to protect their students from harassment and allowed discrimination to plague their campus for years. Harvard does not have a constitutional right to taxpayer dollars and remains ineligible for grants in the future.”

While the last part of Huston’s statement will play well with Trump’s MAGA (Make America Great Again) supporters, it is factually inaccurate – and was likely anticipated by Judge Burroughs.

As Andrew Crespo, a prominent law professor at Harvard, told the press briefing: “The ruling provides broad and powerful prospective relief”. In other words, it is designed to prevent future harm.

“Not only does she order the Trump administration to immediately stop withholding the funds that it has illegally held hostage . . . she put in place a permanent injunction barring it [the Trump administration] from ever trying to use these same unlawful tactics again.

“It cannot freeze funds or deny future grant applications to try to coerce [us] into toeing the line of what it wants said on our campus.

A central part of Judge Burroughs’ decision concerns the First Amendment, which reads, in part: “Congress shall make no law . . . abridging the freedom of speech.”

In a number of cases dating back to the 1950s, the Supreme Court of the United States used the First Amendment to fashion a four-part definition of academic freedom, which grants the college or university the right to determine “who may teach, what may be taught, how it shall be taught, and who may be admitted to study” and the doctrine that the government cannot engage in viewpoint discrimination by either favouring or banning content.

Burroughs found that the demands the DoE made in its 11 April letter to Harvard contravened these constitutional guardrails.

In part, that letter demanded that Harvard “commission an external party . . . to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, [and] teaching unit must be individually viewpoint diverse”.

Since the administration’s claim was that Harvard is, as Crespo put it, “a bastion of leftists” or a “den of Marxism”, the only way to achieve “viewpoint diversity” would be to impose the hiring and recruiting of conservatives.

Incidentally, Crespo pointed out that Harvard’s chief academic officer is “one of the leading conservative legal scholars in the country” and that about 80% of Harvard Law School graduates work in large corporate law firms.

Burroughs focused on another part of the 11 April letter by saying that it “require[d] Harvard to overhaul its governance, hiring, and academic programs to comport with the government’s ideology and prescribed viewpoint”.

Burroughs accepted the argument advanced by the AAUP that “the Defendants’ [that is, the Trump administration’s] viewpoint-based demands have resulted in the Organisational Plaintiff’s members [that is, AAUP members] being well beyond ‘subjectively chilled’. Rather, the Organisational Plaintiffs have established that their members have been and likely will continue to be compelled to forgo certain research and discussion topics or at least parse their words carefully to maximise any chance of maintaining funding.”

Affected research projects

While Harvard and its supporters, as well as supporters of other universities, like Johns Hopkins, often speak of life-saving research that will be lost, Burroughs’ decision is the first decision to provide a more complete list of this research.

In addition to the research on Tay-Sachs, the freeze in funds meant that “immunologists overseeing a multi-school tuberculosis consortium” were told to halt their research. Research in Amyotrophic Lateral Sclerosis (ALS), a degenerative nerve disease that killed Lou Gehrig, the great New York Yankee player, was halted.

The Department of Veterans Affairs was readying to terminate a grant for the development of “a predicative model to help VA emergency room physicians decide whether suicidal veterans should be hospitalised.” Another researcher was told to “halt his development of an advanced chip to measure NASA astronauts’ radiation exposure during the upcoming Artemis II mission to the moon.”

Exactly how a Department of Defense programme was spared, Burroughs did not appear to know. But she included the effort to shut it down as one more example of research that was endangered and had no connection to antisemitism on Harvard’s campus.

That was the Assured Microbial Preservation in Harsh or Remote Areas (AMPHORA) programme at Harvard, which is researching the [d]evelopment of critical technologies that enables biosurveillance and biocollection in austere, field-forward locations.”

This knowledge “bolsters national security and warfighter safety and lethality by enabling medical countermeasure development of new and emerging threats and provides biological threat intelligence to the deployed warfighter”, quotes in the judgement noted.

Nor was Burroughs swayed by the government’s defence that what this case is really about is contract law, because in its view, grants are simply contracts by another name.

Burroughs rejected that argument, which would have meant that the case against the government should have been brought in the Court of Federal Claims and not Federal District Court – an argument supported by the Supreme Court (SCOTUS) just last week when it greenlighted more than three-quarters of a billion dollars in cuts at the National Institutes of Health.

Burroughs upped the constitutional ante by writing: “The First Amendment claims here are about speech and whether the federal government is improperly infringing on the free speech of an academic institution and its employees [that is, by reacting to the refusal of its viewpoint diversity demands by cutting research dollars as punishment].

“The resolution of those claims might result in money changing hands [that is, the grants being unfrozen], but what is fundamentally at issue is a bedrock constitutional principle rather than the interpretation of contract terms.”

In ruling against the government’s defence of its termination of the grants to Harvard, Burroughs determined that Harvard itself was not really party to the grantor-grantee relationship. Rather, it was the researchers “names that appear directly on the face of the grant agreements, their labs that receive the funding, and their research that is eliminated when funding is discontinued.”

In other words, by terminating the grants for something Harvard did or did not do, the government was punishing not the Corporation of Harvard but, rather, researchers with whom the government had an independent relationship.

No reasoned explanation

While somewhat esoteric to those outside the United States, Burroughs’ finding that the government violated the APA and Title VI should be noted. In both cases, the issue is that the government did not follow established legal procedures for terminating the grants.

Neither procedure allows for cancellation of grants based upon the host institution’s failure to combat antisemitism, and each lays out a number of steps and the requirement for hearings and rebuttals – none of which preceded the termination order.

Burroughs ruled that the government cannot use fighting antisemitism, however “laudable and important” that goal is “to change the course of decades of federal funding for critical research without providing a reasoned explanation as to how the agency determined that freezing funding would advance that goal, or, in other words, help combat antisemitism.

“Defendants have not pointed to a single document, nor has the Court’s review of the record located one, that indicates that they weighed the value of the research funded by a particular grant against the goal of combating antisemitism at Harvard. Several documents, in fact, indicated that such a weighing likely did not occur before the assault on Harvard began or even by the time of the eventual Termination Letters.”

Burroughs noted that the government did not take into account various actions Harvard took to combat antisemitism on campus before the 11 April letter that announced the termination of the research grants.

Peter McDonough, the general counsel for the American Council on Education (ACE), also welcomed the decision.

In a statement made available to University World News, he said that the “federal court affirm[ed] what we always knew to be true: the Trump Administration has ignored the law in pursuing politically motivated attacks on Harvard and other institutions” – and noted that the ACE’s amicus curiae brief, filed on behalf of 28 higher education associations, was reflected in the judge’s finding about “antisemitism [being] used as a smokescreen for a targeted, ideologically motivated assault on [the] country’s premier universities”.