Trump's Overreach Against Harvard

On March 20, 2026, the Trump administration opened a second front in its ongoing attack on Harvard, aiming to impose heavy financial penalties and other onerous sanctions, including federal operational oversight of the university. Under the guise of rooting out antisemitism at Harvard, it wants to break, not reform, Harvard, which to this day is far from perfect. The gist of the government complaint reads as follows: 

In the wake of Hamas’ October 7, 2023, terrorist attack on the State of Israel, Jewish and Israeli students at Harvard University were harassed, physically assaulted, stalked, and spat upon. For several years, Jewish and Israeli students endured a hostile educational environment. They were repeatedly denied access to educational facilities by antisemitic demonstrators. Fearful for their safety, Jewish students wore baseball caps to conceal their yarmulkes or kept out of sight, effectively denying them access to Federally funded educational opportunities.  

Harvard’s response to this: do nothing. Its faculty and leadership turned a blind eye to antisemitism and discrimination against Jews and Israelis. Students and faculty violated Harvard’s time, place, and manner rules with impunity; rules that Harvard has and would enforce against anyone else. 

It matters that in the opening round in April, 2025 in this battle, Harvard brought its own lawsuit against the United States, alleging that these government attacks addressed ostensible misconduct by the University that came before Harvard had brought an earlier action in federal district court in Massachusetts seeking not damages, but injunctive relief, to preserve the long-term fruitful collaboration between Harvard and the federal government. That complaint covered the same transactions addressed in the US’s follow-on complaint. In September 2025, District Court judge Allison Burroughs gave Harvard all that it wanted and more, canceling the government’s $2.2 billion fine and declaring that the government had used this lawsuit as an ideological smokescreen to cripple Harvard so that it could no longer rank among the world’s preeminent universities, all in violation of the First Amendment and the safeguards of academic freedom. It is thus critical to note that the proper procedural response is for the trial judge to stay this second lawsuit unless and until the government can reverse the decision in Harvard's favor from its initial suit. The long-standing law of res judicata (literally, the matter has been adjudicated) holds that the two parties have only one shot to resolve a particular dispute. That doctrine economizes judicial resources and prevents the proliferation of multiple inconsistent lawsuits. The doctrine applies regardless of who brought the first action and holds even if the plaintiff has missed valid claims or the defendant has missed vital defenses in the initial case. It is only in those rare cases where either side finds fresh probative evidence after the initial judgment that the case may be retried. In this controversy, the overlap of underlying facts between these two lawsuits is so complete as to preclude dispute. Yet in its new suit, the government remains mum on the pivotal role of res judicata. 

Indeed, a close look at the allegations in the second complaint provides further evidence that Harvard should not be forced to relitigate old issues in a new forum. On the merits, the United States raises no allegations that Harvard urged the antisemitic protesters on, or even gave them any material aid or moral support. Essentially, its claim is the Churchillian one, too little, too late. I think that this allegation is true, but the problem was not with the actions that took place over several years but rather with this specific and immediate broadside issued by a group of Palestinian students on October 8, 2023 that held “the Israeli regime [sic! entirely responsible for all the unfolding violence,” which the complaint rightly states was a provocation to which Harvard did not respond adequately at the time, when it knew full well what individuals and groups were behind these blatant falsehoods. But three further points should be mentioned.  

First, university officials everywhere had some apparent doubt as to whether Harvard and other universities, in view of the cautionary language in the 1967 Kalven Report, should have taken a neutral stance on this dispute. Harvard’s reticence in my view remains an inexcusable blunder when the one side to that dispute not only engaged in acts of outright defamation but also illegally appropriated Harvard’s name and logo. Its passivity turned naked aggression and defamation into an ostensible titanic struggle between moral equals. It is hard to imagine a greater political and moral miscalculation than this, one made not just by Harvard but by many other universities as well.  

But the story goes far further. First, it is hard to insist that Harvard did “nothing” when it removed then-President Claudine Gay from office on January 2, 2024, in full recognition of her earlier major blunders. Second, the government glosses what Garber said in bold letters about “Encampment in Harvard Yard:” ‍

The continuation of the encampment presents a significant risk to the educational environment of the University. Those who participate in or perpetuate its continuation will be referred for involuntary leave from their Schools.  

That announcement may have fallen short of what he and Harvard ideally should have done, but to many individuals on campus, that warning may well have altered both sentiment and behavior for the better. It is one thing to say that Harvard did nothing, and quite another to say that what it did do may have been inadequate, a global judgment that requires looking at all the evidence accumulated after 2023, when the government complaint quickly runs dry of specific evidence. Most of the particular incidents of violence and disregard of rules come from the time that Claudine Gay was president. It was thus downright dangerous for the United States to insist on a vast array of sanctions as if nothing of consequence had happened after January 2, 2024, and it is an outright falsehood for the government to claim: 

Jewish and Israeli students at Harvard have been subjected to severe, pervasive, and objectively offensive harassment and discrimination from October 7, 2023, through the present on account of their actual or perceived race, color, or national origin. (Italics added). 

Indeed, one of the great ironies here is that the government has long known, just as well as Harvard, the individuals responsible for that public broadside. Now that it falsely asserts that nothing has changed for the better since 2023, it still refuses to pursue any criminal or civil actions against the known perpetrators, even though such actions could increase the cost of illegal campus protests and thus ease the task of governance for Harvard. But unwillingness to go after any of these parties makes perfectly good sense if the Trump administration is not seeking to rectify antisemitic harassment, but rather to smother Harvard’s independence by invoking dubious claims against the university. 

The government’s incomplete and inaccurate analysis of the overall situation weakens all its legal claims here. At one point, the government insists that Harvard’s “agent or assignee” (its grant recipient) declare that they will abide by all conditions for the grant. But the clear import of that provision is that any effort to sanction Harvard globally for material breach is unlikely to succeed because, given the language quoted, the charges must establish that each individual grantee has defaulted on their contractual obligations. As many law professors wrote in May 2025 when similar demands were first made against Columbia, the cancellation of any individual grants must by statute require an individualized program-by-program review, in which each grantee may be heard separately, after which the sanctions must be limited to the particular program under investigation, but only if preceded by at least 30 days by a report to Congress at least 30 days before the grant payments can be stopped. And the government’s own website states in no uncertain terms that grant termination is a “last resort” only after the above steps have been done. The whole tenor of the federal law is that the government cannot unilaterally launch a sweeping action to recover billions of dollars in cash and then clamp down on all that Harvard does, solely by an appeal to this general provision, which is exactly what the government does when it says that “Harvard’s failure to comply with Title VI is grounds for the United States to rescind grant payments made during the period of noncompliance.”  

But there are specific remedies under Title VI that do not allow the government to obtain billions, even if Harvard is in breach of Title VI. That overreach is compounded by this omnibus request:  

161. Appoint an independent outside monitor, subject to approval and in collaboration with the United States, to oversee and ensure Harvard’s full compliance with all injunctive and equitable relief ordered by the Court. The monitor shall be empowered to audit Harvard, make report to the United States and the Court, and recommend corrective actions for such duration and scope as the Court deems just and necessary. 

There can be no independent monitor who is beholden to the government, where Harvard is relegated to a pauper and a supplicant who cannot challenge any of the massive government distortions. Indeed, the order achieves far more to destroy Harvard as an academic institution than all the reckless actions of Hamas and its followers combined. How does the Department of Justice protect Jewish, Israeli, or indeed any students, if its supposed campaign against antisemitism strips these students of the doctrinal programs, removes their professors, closes their laboratories, and deports their foreign colleagues? The government’s complaint does put its finger on a recurring danger that needs to be corrected. But this complaint brings a blunderbuss where it is not needed. The complaint is filled with exaggerations, misstatements of law and fact, and seeks relief that is nowhere allowed to shut down individual programs in this brutal manner. Every Hamas supporter who pines for the further destruction of American education will be delighted when the government seems intent on shutting down Harvard by targeting its scientists and researchers. Neither wise nor legal.  

Richard Epstein is a senior research fellow at the Civitas Institute at the University of Texas at Austin.