The Free Press
The Trump administration fired another bunker-busting bomb at Harvard on Thursday, prohibiting the school from enrolling international students. The move set off a panic among the more than 6,500 students already at Harvard who do not hold American citizenship.
This is only the latest move in the president’s war on the oldest and wealthiest university in the country. It comes after the government canceled billions of dollars in funding to the school, launched several investigations into the school—including an EEOC inquiry into racial discrimination and a DOJ investigation into whether Harvard’s admissions policies defrauded the government—and initiated the process of revoking its tax-exempt status. All of this followed Harvard’s filing suit against the administration for threatening the school’s funding if it didn’t comply with a number of extraordinary demands.
But the attempt to block international students is arguably the most surprising and aggressive move so far.
International students are a remarkably large share of enrollment in the Ivy League. At Harvard, it’s 27 percent. At Yale, 28 percent. At Columbia, by one measure, over 50 percent. Part of the reason is monetary: International students are much more likely to pay full freight at these schools, which at Harvard nowadays is close to $100,000 per student per year including room and board. So cutting off international enrollment would not only blow out a quarter of Harvard’s student body but would hit the school where it hurts.
Harvard immediately sued for a restraining order, and a federal judge immediately granted it. But the judge’s order says nothing about the merits; it just says the court is preserving the status quo pending litigation.
So can Trump legally cut off Harvard’s ability to enroll international students?
Let me say something at the outset. Harvard, like my university, Yale, went off the rails years ago. Its faculty is ridiculously slanted in one ideological direction. It stopped protecting free speech. It turned itself into a hotbed of pro-terror sentiment. Its Faculty of Arts and Sciences required “diversity statements” vetting job applicants, as Steven Pinker puts it, “for their willingness to write woke-o-babble.” And it appointed a plagiarist as its president. (She remains on the faculty, by the way, reportedly collecting a salary of almost $900,000.)
Nevertheless, Trump’s latest attack on Harvard is not legal. Here’s why.
Prohibiting Harvard from enrolling international students raises two different kinds of legal issues. First, is there any basis in the applicable regulations for the administration’s action? Second, regardless, is that action constitutional?
The regulations are tedious and arcane. But the basic story is this. Schools need a Student Exchange and Visa Program (SEVP) certification, a process overseen by the Department of Homeland Security, in order to obtain visas for international students and to enroll such students. As part of this program, schools have to report certain information about their international students, like whether they’re completing their coursework or whether they’ve engaged in misconduct. Department of Homeland Security secretary Kristi Noem says Harvard has failed to comply with this reporting requirement and, as a result, has forfeited its certification.
As a matter of administrative law, Noem’s position is not crazy, but it is unlikely to stand up in court. The information she’s asking for appears to go way beyond what the regulations require. For example, she says Harvard must report everything it knows about its international students’ illegal, “dangerous,” or threatening activity, and turn over any footage it has of international students engaging in any “protest activity.” The regulation, however, says a school must report on its international students’ disciplinary status and on any misconduct resulting in a criminal conviction for which they were disciplined, which is a very different matter (although there’s an argument that DHS can ask for more information than required). Moreover, Noem may not have complied with the process for revoking Harvard’s SEVP certification (although there may be an argument that this process didn’t apply here). These regulatory questions can get technical fast, but I doubt courts will find in the government’s favor.
Much more fundamental is the constitutional problem. The Trump administration does not seem to have done to any other school what it’s doing to Harvard. This is serious business.
If the government wanted to cover its constitutional tracks, it would have demanded the same kind of reporting from every university, or every Ivy League university, or every university with a substantial number of international students, or every university with an alleged record of civil rights violations. And it would have revoked the SEVP certification of every such school that failed to comply. In that case, the administration could say it isn’t singling Harvard out, but simply requiring Harvard to comply with requirements applicable to all similarly situated schools.
But the government doesn’t seem to be doing any such thing. Only Harvard has been subjected to these reporting requirements. Only Harvard has had its certification revoked. Only Harvard is barred from enrolling international students.
Why? The reason seems pretty clear. Over the last couple of months, the government notified several prestigious universities that if they did not comply with administration demands, their federal funding (to the tune of hundreds of millions or even billions of dollars) would be in jeopardy. Columbia made a deal with the administration to try to keep its federal funding; other schools are negotiating. Harvard is the only one that sued.
In short, there is powerful evidence here that the administration is punishing Harvard for fighting back and suing. That’s plainly unconstitutional. It’s called retaliation—and it violates the First Amendment.
Noem’s letter to Harvard also says the school’s SEVP certification is being rescinded because Harvard has created a “campus environment” that “promotes pro-Hamas sympathies.” But promoting pro-Hamas sympathies, as vile as that may be, is protected by the First Amendment. So there’s another, independent First Amendment violation.
Everyone knows what the administration is trying to do. Force Harvard back to the bargaining table. Send a message to every other university out there: If you fight us, hell will rain down on you like no one has ever seen. We won’t even try to cover our tracks. We don’t care if what we’re doing looks blatantly punitive. Because that’s the point.
During the Biden years, I excoriated the state and federal prosecutions of Trump because they so obviously weaponized the legal system against the leading presidential candidate from the other party. That was an overwhelming threat to democracy and hence much worse than what Trump is doing to Harvard. But it’s a similar kind of unconstitutionality.
The government cannot single out and target anyone for their First Amendment-protected activity. Trump may feel that he has a right to do that because it was done so repeatedly, and so blatantly, to him. But it has to stop.
