It’s not that Harvard University didn’t have a significant and deeply troubling antisemitism problem. It did. It still does. And that’s really bad. But that does not, as Judge Allison Burroughs found, provide the Trump administration with a smokescreen to impose its ideological views having nothing to do with antisemitism on Harvard.

Harvard asserts that the Defendants’ actions in this case “violated Harvard’s First Amendment rights in at least two ways: 1) by retaliating against Harvard based on the exercise of its First Amendment rights, and 2) by imposing content- and viewpoint-based burdens on those rights through the imposition of funding conditions that are unrelated to any legitimate government interest in combating antisemitic harassment or otherwise.” Because of this, Harvard contends that “[t]he Freeze Orders and Termination Letters should be vacated and set aside, and any further similar action against Harvard should be permanently enjoined.”

While it is true that Harvard has no right to government funding, it is similarly true that the government can’t use funding as a wedge to dictate to Harvard who may teach, who it may admit, what can be taught having no legitimate relationship to the wrong it purports to address.

Defendants’ April 11 Letter, on its face, was directed at these core freedoms, and Harvard’s April 14 rejection, on its face, was aimed at preserving them. The April 11 Letter stated, in no uncertain terms, that the letter would constitute an “agreement in principle that w[ould] maintain Harvard’s financial relationship with the federal government” but only if Harvard agreed to “audit the student body, faculty, and leadership for viewpoint diversity,” report that audit to the government, and “hir[e] a critical mass of new faculty” and “admit[] a critical mass of students … who will provide viewpoint diversity.”

It further required Harvard to “abolish all criteria, preferences, and practices, whether mandatory or optional, throughout its admissions and hiring practices, that function as ideological litmus tests;” to audit “programs and departments that … reflect ideological capture;” to “immediately shuttter all diversity, equity, and inclusion (DEI) programs, committees, positions, and initiatives … including DEI-based … speech control policies,” and to demonstrate that it had done so “to the satisfaction of the federal government.” In brief, the April 11 Letter purported to require Harvard to overhaul its governance, hiring, and academic programs to comport with the government’s ideology and prescribed viewpoint.

The Trump administration seized upon the festering antisemitism of Harvard, a very real problem, as an excuse to both demand that Harvard “shutter” anything the administration perceived to be DEI and replace it with Trump’s vision of what Harvard should be teaching. To make that happen, it cut off funding unless Harvard acquiesced to the administration’s demands.

The Trump administration argued that it would have cut off Harvard’s funding based upon the antisemitism problem regardless, thus showing that it was for a legitimate purpose and not retaliatory. Rather, in the course of addressing Harvard’s antisemitism problems, it would further address other, quasi-related problems as well.

Defendants contend, however, that Harvard’s retaliation claim nonetheless fails because “the agencies’ terminations are explained by a nonretaliatory purpose: opposing antisemitism,”  such that the government “would have terminated” the grants irrespective of Harvard’s viewpoints. This argument does not carry the day.

Judge Burroughs wasn’t buying.

Moreover, although combatting antisemitism is indisputably an important and worthy objective, nothing else in the administrative record supports Defendants’ contention that they were primarily or even substantially motivated by that goal (or that cutting funding to Harvard bore any relationship to achieving that aim). As discussed further infra, before the April 14 Freeze Order, Defendants had announced a funding review consistent with the goals of combatting antisemitism; the record, however, does not reflect that Defendants engaged in such a review, weighed the value of any grant, gathered any data regarding antisemitism at Harvard, or considered if and how terminating certain grants would improve the situation for Jewish students at Harvard.

Not only were the bulk of the administrations demands wholly unrelated to any legitimate concern about antisemitism, but it didn’t bother to do anything to follow through on its claimed basis of combatting antisemitism and instead terminated grants having nothing to do with “the situation for Jewish students at Harvard.” As if there was any doubt about Trump’s true motivations, his inability to exercise his right to remain silent made his purposes clear.

Although Defendants now contend that Harvard’s April 14 rejection and subsequent lawsuit had nothing to do with their decision to cut its funding, numerous government officials spoke publicly and contemporaneously on these issues, including about their motivations, and those statements are flatly inconsistent with what Defendants now contend. These public statements corroborate that the government-initiated onslaught against Harvard was much more about promoting a governmental orthodoxy in violation of the First Amendment than about anything else, including fighting antisemitism.

Judge Burroughs thereupon noted Trump’s twits.

For instance, in the forty-eight hours following the April 14 Freeze Order, the President took to social media multiple times to talk about Harvard. He posted on Truth Social that Harvard is “a JOKE” that “should no longer receive Federal Funds.” His stated concerns (which would later be echoed in the May 5 Freeze Order) were untethered from antisemitism and instead based entirely on Harvard’s “hiring almost all woke, Radical Left, idiots and ‘birdbrains’ who are only capable of teaching FAILURE to students,” including “two of the WORST and MOST INCOMPETENT mayors in the history of our Country,” referring to Democratic mayors Bill de Blasio and Lori Lightfoot.

This post echoed his comments from a day earlier, when he opined, again on Truth Social, that “[p]erhaps Harvard should lose its Tax Exempt status and be Taxed as a Political Entity.” Again, that post did not reference antisemitism explicitly but rather was focused on Harvard’s “pushing political, ideological, and terrorist inspired/supporting ‘Sickness[.]'” It was not until nearly ten days later that the President would call Harvard “Anti-Semitic,” doing so in a Truth Social post that, in the same breath, called Harvard a “Far Left Institution” and a “Liberal mess, allowing a certain group of crazed lunatics to enter and exit the classroom and spew fake ANGER AND HATE.”

Can and should the government take action to ameliorate antisemitism at Harvard? You bet. Had it done so here, it would have been lawful and appropriate. But Trump just can’t control himself, making clear that what he was really trying to do was use federal funding as the wedge to replace Harvard’s “far left” ideology with his own preferred orthodoxy. As Justice Jackson wrote in West Virginia State Board of Education v. Barnette:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

What Trump sought to do is break Harvard and make it bend to his anti-DEI whim, using antisemitism as the excuse. No matter how misguided you believe DEI to be, or how repugnant you find antisemitism, Trump’s attempt to ram his ideology down Harvard’s throat was unconstitutional.