In my five-part series and initial column on the Trump–Harvard conflict, I outlined the legal arguments the administration might use to challenge Harvard’s tax-exempt status. In this second installment, I will examine the potential legal strategies Harvard may pursue to defend against the administration’s efforts to revoke its tax-exempt status, restrict foreign student enrollment and impose changes to its governance and institutional operations.
On June 5, the American Council on Education along with 27 associations representing colleges and universities, filed an amicus curiae brief (Civil Action No. 1:25-cv-l l 048-ADB) in the United States District Court for the District of Massachusetts. The brief highlights the chilling effect the administration’s actions could have on the entire higher education sector and warns of the broader societal costs if those actions are fully and permanently implemented.
First and foremost, “under the First Amendment of the Constitution, federal officials cannot dictate how colleges and universities structure their governance, educate their students and serve their communities — just as they similarly lack the power to do so with other non-federal organizations, entities or individuals,” according to the American Council on Education. The administration’s actions also erode the separation of powers established by the Founding Fathers to safeguard against tyranny. The Executive Branch does not have the authority to penalize — or in the extreme, dismantle — any individual or institution for refusing to comply with unlawful demands.
The characterization of the administration’s actions as “unlawful demands” is likely to be a central point of contention in the case. The administration will argue that its actions fall within the bounds of lawful authority, while Harvard is expected to counter by citing multiple legal precedents that affirm institutional autonomy — particularly the right of private institutions to operate in alignment with their mission and governance structures. A central issue in this dispute is whether Harvard has violated Title VI, which prohibits unlawful discrimination.
The administration alleges that Harvard violated Title VI by failing to adequately prevent antisemitic harassment. However, Harvard is likely to argue that the administration disregarded due process requirements under Title VI. Instead of initiating the proper legal procedures, the administration abruptly froze $2.2 billion in grants and $60 million in contracts through a press release —suggesting the action was more about asserting control over the university than legitimately enforcing anti-discrimination laws.
With regard to the administration’s attempt to restrict Harvard from admitting foreign students, Harvard will likely invoke multiple legal provisions that broadly protect the rights and autonomy of higher education institutions. Universities have a constitutionally protected right to academic freedom, which includes the ability to admit and engage with international students and scholars. Two cases, including Sweezy v. New Hampshire, 354 U.S. 234 (1957), and Keyishian v. Board of Regents, 385 U.S. 589 (1967) affirm that academic institutions have the right to determine the content of education and whom they associate with, free from undue government interference.
Harvard is likely to frame the administration’s actions as an unconstitutional overreach of executive authority — one that infringes on academic freedom, violates procedural and anti-discrimination protections and inflicts tangible harm on the institution. The university is expected to seek relief in federal court, drawing upon established legal precedent and highlighting the practical consequences for its mission and operations.
Additionally, public statements by current administration officials may undermine the claim that these actions are solely intended to enforce Title VI. In November 2021, JD Vance declared that “The Universities are the Enemy,” and more recently, on May 28, Education Secretary Linda McMahon stated in a televised interview that “universities should continue to be able to do research as long as they … are in sync, I think, with the administration.” Such statements, in and of themselves, create a chilling effect on academic freedom and institutional independence.