The Trump administration has more or less declared war on Harvard University. Its most recent attack is the Department of Homeland Security’s revoking Harvard’s participation in F-1 and J-1 visa programs, under which foreign students attend Harvard. If that revocation stands up, it means that Harvard will not have any foreign students.
DHS Secretary Kristi Noem wielded the hatchet in this case. This DHS press release describes Noem’s letter “demanding detailed records on Harvard’s foreign student visa holders’ illegal and violent activities by April 30, 2025.” Harvard responded, but its response was deemed insufficient and DHS revoked its F-1 and J-1 visa status, effective immediately.
Harvard promptly sued the administration. Its complaint alleges that Noem’s action was arbitrary and capricious, and violated both the First Amendment and the Administrative Procedure Act. Paragraph 13 of the complaint alleges:
Compounding these First Amendment infirmities, the government’s retaliatory
revocation of Harvard’s certification is the very definition of arbitrary and capricious agency action proscribed by the APA. DHS provided no coherent reason for taking these actions, and its revocation fully bypassed the detailed statutory and regulatory framework governing the F-1 and J-1 visa programs, which specify procedures and standards for revoking a school’s certification—all of which the government ignored. And the government’s actions run roughshod over the procedural due process protections of fair notice and an opportunity to respond owed to Harvard under the U.S. Constitution and the APA as the holder, for more than 70 years, of a government license to participate in the F-1 visa program.
Harvard will win this case. The Trump administration seems to believe that classifying something as a “privilege” rather than a a “right” means that all statutory procedural requirements can be dispensed with. The federal courts will instruct them otherwise. It is also unwise for the administration to affirmatively assert, as it did here and has done on other occasions, that it is taking adverse actions in order to retaliate against an institution for constitutionally protected conduct.
The administration has taken other actions against Harvard, the most threatening of which is the President’s directive to the IRS to look into revoking Harvard’s 501(c)(3) tax-exempt status as a nonprofit. The basis of this revocation would be the fact that Harvard has engaged in race discrimination over a period of many years, as the Supreme Court has specifically held. As I wrote here, the Bob Jones University case holds that a university that engages in race discrimination cannot qualify for 501(c)(3) status. (“It would be wholly incompatible with the concepts underlying tax exemption to grant tax-exempt status to racially discriminatory private educational entities.“) That holding applies squarely to Harvard. Harvard has only two potential arguments in response: 1) The Bob Jones decision was wrong and should be overturned, or 2) it has stopped discriminating and therefore should not be punished.
Has Harvard actually stopped engaging in race discrimination? I doubt it.
In its dealings with universities, as in many other respects, the Trump administration is a blunt instrument. It is going to lose a lot of lawsuits. But from the standpoint of Harvard (or Columbia, or whoever), there are many risks to being at odds with the federal government. It will be interesting to see how this all plays out.
UPDATE: A federal judge granted Harvard’s motion for a temporary restraining order this morning. That was totally foreseeable. I doubt that the administration will fare any better in subsequent proceedings. I think the administration must have a strategy here that is not a legal strategy–i.e., a political one.
