Separating Church And State: Will Harvard Save American Democracy?

In the battle to keep the Church of Harvard separate from the State of Trump, Harvard will prevail

By Anil Madan

Harvard College was founded in 1636. Two years later, John Harvard, an English Puritan Minister in the Colonies, died. He left a bequest to Harvard which included 400 books in his library.

Harvard was founded long before, seven score years before, the United States of America came into existence. In 1650, the Massachusetts legislature granted a charter to the Harvard Corporation and designating it the President and Fellows of Harvard College. In 1780, the Massachusetts Constitution went into effect and recognized Harvard as a university.

Trump vs. Harvard Administration. Pic – YouTube

On Friday, a week ago, the Trump administration sent a letter to the President of Harvard and Penny Pritzker, a member of the Harvard Corporation who refers to herself as “Senior Fellow” stating that the United States has “invested” in Harvard University’s operations “because of the value to the country of scholarly discovery and academic excellence.” But, the letter cautioned, “an investment is not an entitlement. It depends on Harvard upholding federal civil rights laws, and it only makes sense if Harvard fosters the kind of environment that produces intellectual creativity and scholarly rigor, both of which are antithetical to ideological capture.”

Who would have thought that intellectual creativity and scholarly rigor are concerns that motivate the Trump administration? And if you know what “ideological capture” means, I’m interested in an explanation.

The letter, unprecedented in American history, and evoking something that Galileo Galilei might have had thrust upon him, declared that “Harvard has in recent years failed to live up to both the intellectual and civil rights conditions that justify federal investment.” The letter demanded that Harvard acquiesce to its demands as “an agreement in principle that will maintain Harvard’s relationship with the federal government.” The letter then stated that its terms would be translated into a more thorough, binding settlement agreement, in other words, an agreement to agree on the agreement already agreed.

The letter was signed by representatives of the General Services Administration, the US Department of Health & Human Services, and the US Department of Education and set forth the following demands on Harvard:

• Governance and Leadership Reform. These included fostering clear lines of authority and accountability, reducing the power held by students and untenured faculty, and reducing forms of governance bloat, duplication, or decentralization.
• Merit-Based Hiring Reform. This means ceasing all forms of preferences based on race, color, religion, sex, or national origin.
• Merit-Based Admissions Reform. This is the same as above but with provisions for sharing data with the federal government and subjecting Harvard to federal audits.
• International Admissions Reform. This means preventing admission of students hostile to the American values and institutions described in the US Constitution and Declaration of Independence.
• Viewpoint Diversity in Admissions and Hiring. This requires an external independent third party to audit the university’s achievements in promoting a “viewpoint diverse” student body and faculty. No standards are set forth.
• Reforming Programs with Egregious Records of Antisemitism or Other Bias. This also required audits by an external party.
• Discontinuation of DEI or Diversity, Equity and Inclusion, practices.
• Student Discipline Reform and Accountability. These included investigation and discipline of students involved in past misconduct.
• Whistleblower Reporting and Protection.
• Transparency and Monitoring. This includes reporting immigration and related information to the Department of Homeland Security.

The legal counsel retained by Harvard replied to the government’s letter, pointing out that Harvard is committed to fighting antisemitism and bigotry of any kind and has made structural, programmatic and policy changes in that regard. The letter stressed that the government’s demands are unlawful and unconstitutional and declared: “The university will not surrender its independence or relinquish its constitutional rights. Neither Harvard nor any other private university can allow itself to be taken over by the federal government. Accordingly, Harvard will not accept the government’s terms as an agreement in principle.”

My daughter who went to Barnard College which is part of Columbia University is furious that Columbia acquiesced to the administration’s demands, lamenting that she was even more furious that she had to say something nice about Harvard texted: “Great move by Harvard.” When we spoke later, she asked: “Do you think Harvard can save America?” I said I’d write about that.

So, what is at stake here? The administration has already frozen some $2.2 billion in aid and research grants to Harvard. And it has threatened another $9 billion in research grants that for the most part, go to Harvard teaching hospitals working on critical studies of illness, disease, and intervention to prevent and treat people around the world, not just in America.

President Trump has threatened to revoke Harvard’s tax-exempt status. And now the Wall Street Journal reports that the administration has requested that the Internal Revenue Service start the process of revoking that tax-exempt status. What is at stake here is not just that Harvard pays no taxes on any income it earns, but also that contributions to the university and its various schools, e.g., the law school, business school, and others are tax deductible. Over the years, Harvard College has amassed an endowment of over $50 billion and the other schools have hundreds of millions to billions more. Importantly, only about 20% of the funds are freely available for deployment on a discretionary basis; some 70% of the endowment is restricted to specific purposes or departments.

Harvard’s President Alan Garber followed up with a letter to the Harvard community and its alumni. His ultimate message was clear: “The University will not surrender its independence or relinquish its constitutional rights.

The administration’s prescription goes beyond the power of the federal government. It violates Harvard’s First Amendment rights and exceeds the statutory limits of the government’s authority under Title VI. And it threatens our values as a private institution devoted to the pursuit, production, and dissemination of knowledge. No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.”

Harvard has listed on the university’s website just what is at risk. Here are some examples:

The National Cancer Institute estimates that nearly 40% of men and women will be diagnosed with cancer during their lives.

• A form of cancer immunotherapy called checkpoint blockade developed by HMS scientists is currently used for the treatment of at least 12 types of cancer. Hundreds of thousands of patients with cancer stand to benefit from these therapies each year.
• A first-in-class drug to treat a form of blood cancer known as multiple myeloma
• Study Finds Three New Safe, Effective Regimens to Treat Drug-Resistant Tuberculosis
• Breakthrough research in neurodegenerative diseases such as Huntington’s Disease and frontotemporal dementia.
• Between 34-36 million Americans are estimated to have Type 2 diabetes and globally obesity affects about one billion people. A Harvard Medical School researcher discovered glucagon-like peptide-1 (GLP-1), a molecule that has become the basis for the therapies that have revolutionized obesity treatment. Additional discoveries enabled the design of disease-altering therapies for type 2 diabetes.
• Almost 88,000 people in America are awaiting a kidney transplant and 35 million people in the US are living with chronic kidney disease. Harvard medical researchers are engaged in breakthrough discoveries in transplanting kidneys and combating the disease.

Some notable discoveries by Harvard Medical research include:

• Smallpox vaccine 1799
• Anesthesia 1846
• Appendicitis 1886
• Discovery of insect borne diseases, scurvy, heat-killed vaccines 1890s-1910
• Electrocardiograph 1914
• Insulin 1922
• Heart valve surgery 1923
• Iron lung, syphilis test 1927
• First polio patient saved 1929
• Corrective heart surgery for children 1938]
• Burn treatment, blood bank 1942
• Pap smear 1945
• Artificial kidney 1947
• Cortisone 1949
• Kidney transplant 1952
• Oral contraceptives 1954
• Platelets, proton beam therapy, implantable pacemaker 1960
• Human limb reattachment 1962
• Intra-aortic balloon catheter 1969
• PET (positron emissions tomography) scan 1970
• Noninvasive fetal heart monitoring 1973
• MRI (Magnetic resonance imaging) 1979
• HIV/AIDS 1980s
• Artificial skin 1981
• Kawasaki disease retrovirus; Alzheimer’s disease 1986

And the list goes on.

Federal tax law prohibits the President or senior government officials from requesting directly or indirectly that investigations of certain taxpayers be conducted. The administration’s request that proceedings to revoke Harvard’s tax-exempt status based on disagreement with “viewpoints” of its faculty or students, or for failure to promote viewpoint diversity appears to be a clear violation of the first amendment since it is a restraint on freedom of speech and expression. It is probably also a violation of the freedom of association clause of the first amendment.

I have no doubt that in a legal battle on this issue, Harvard will prevail.

There is no way that Harvard could have yielded on this. And if there is any institution that would not yield, it is Harvard. As for what is going to happen, the first part is easy. There is no legal authority for an American President or any third party to demand that a private university conduct its affairs in conformance to the demands of that third party and particularly not in conformance to governmental demands.

Obviously, if there are steps that Harvard is required to take to comply with laws, whereas the President could demand compliance, that would be simply a political move and the enforcement can only come via the Department of Justice, i.e., a lawsuit brought to enforce compliance. Harvard would be entitled to defend itself, and to due process, even to the point of challenging the law’s constitutionality or applicability, as well as to assert any substantive defense showing it is not violating the law.

The second part is the tough part. Trump’s threats to suspend financial support to the tune of $2.2 billion or the total of $9 billion at stake is subject to challenge on two grounds:

1. If the US government has contracts with Harvard (in most cases there are contracts), it must comply with them. But most, if not all, federal contracts have a termination for convenience provision. I think a court could review whether termination was proper but see below.
2. The money has been appropriated by Congress so the President cannot arbitrarily stop research projects and other activities authorized by Congress and which are part of the laws of the country.

The problem with this second argument and the argument that termination of a contract was improper, is that the Supreme Court has blown a massive hole in it. The immunity case held that the President is immune from the consequences of his official acts. So, he has unfettered discretion to do whatever he wants and there is no enforcement mechanism left.

There are two possible outcomes that I can project:

1. Harvard will prevail. It can survive a $2 billion hit per year even for 4 years, probably even a $9 billion hit.
2. The Supreme Court will be forced to limit the scope of its decision. And this may well happen in a case brought by Harvard.

Harvard may well be the catalyst that brings the country together on this. Columbia University and other colleges have acceded to administration demands. But Harvard is different. It is, in a sense, the Church of American education.

And in this battle to keep the Church of Harvard separate from the State of Trump, Harvard will prevail.

I have often said, don’t bet against America. Today, I say don’t bet against Harvard.

Cheerz…
Bwana

Mauritius Times ePaper Friday 18 April 2025