Opinion - Harvard can't truly win its fight against Trump

Yahoo

8 hours ago

Imagine a boxing match in which one fighter can block the blows of his opponent but isn't permitted to hit back. When struck by a low blow, the injured fighter may appeal, but the referee can only admonish the unscrupulous fighter to abide by the rules. He is not allowed to end the match by throwing in the towel — and his opponent is free to keep punching.
This is the situation in which Harvard now finds itself.
The Trump administration has accused Harvard University of tolerating antisemitism and implementing diversity, equity and inclusion policies that violate civil rights laws. On those tenuous grounds, the federal government has frozen or terminated billions in research funding, launched at least eight highly intrusive investigations, threatened to revoke the university's tax-exempt status and tried to end its ability to enroll international students.
If a private actor illegally crippled Harvard's ability to operate, the university could ask a court to order the defendant to desist, award the institution attorneys' fees and costs and mandate monetary compensation for the harms it suffered.
But the federal government has sovereign immunity, largely protecting it from suits and monetary damages.
Harvard has already sued the government twice. The first lawsuit, filed in April, accuses the Trump administration of withholding billions in federal funding 'as leverage to gain control of academic decision making' in flagrant violation of the First Amendment and the procedural safeguards of Title VI of the 1964 Civil Rights Act. The second lawsuit, filed in May, challenges the government's revocation of Harvard's right to enroll international students 'without process or cause, to immediate and devastating effect for Harvard and more than 7,000 visa holders,' as another 'blatant violation of the First Amendment, the Due Process Clause, and the Administrative Procedure Act.'
In both suits, Harvard seeks injunctions vacating the government's orders and reimbursement of its legal fees and costs. Just hours after Harvard filed its second lawsuit, the judge issued a temporary restraining order barring implementation of the edict prohibiting Harvard from enrolling international students.
But neither lawsuit seeks — or can request — monetary compensation for the extraordinary harm Harvard is suffering at the government's hands. Harvard's research programs have been thrown into disarray, its reputation tarnished and, it argues, 'its ability to recruit and retain talent, secure future funding, and maintain its relationships with other institutions' significantly diminished.
Harvard has been forced to allocate at least $250 million to salvage some of the research jeopardized by the government's funding freeze. The school has already spent huge amounts of time, energy and money responding to the government's many investigations and sweeping demands for information. And the fight is only in its early rounds.
Although the Constitution does not explicitly address sovereign immunity, courts have held from the earliest days of the republic that the government cannot be sued without its consent. This principle is drawn from English common law, which assumed that 'the King can do no wrong.' As legal scholar Erwin Chemerinsky has observed, the effect of sovereign immunity is 'to ensure that some individuals who have suffered egregious harms will be unable to receive redress for their injuries.'
Congress can waive the government's immunity from suit through laws such as the Administrative Procedure Act, which underpins most of Harvard's claims against the government. But while that law allows courts to declare certain government actions illegal and issue injunctive relief, it does not permit the award of monetary damages.
The Federal Tort Claims Act allows plaintiffs to seek damages for certain negligent or wrongful acts by government officials, such as a car crash or sexual assault. But its waiver doesn't extend to acts involving the performance of 'a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' The law is thus rendered useless to parties injured by government edicts or policies, however damaging or illegal.
As the Supreme Court has noted, protecting the government from monetary damages for policy judgments 'prevents judicial 'second-guessing' of legislative and administrative decisions.' Sovereign immunity also reduces the risk that liability concerns will prevent government officials from taking sound but potentially costly actions.
But monetary damages serve two important legal functions: they help compensate victims for their injuries, and, by leveling the playing field, they deter government officials from committing wrongful acts.
Without the ability to obtain monetary compensation, Harvard can deflect some of the government's attacks through court orders, but it cannot be made whole for the harm done to its finances, its reputation and members of the campus community. Worse still, there is nothing to deter the government from continuing its assault.
And some actions will be difficult to challenge in court, such as the government's threat to exclude Harvard from future research grants, and its recent decision to pause all international student visa interviews, an action that will harm hundreds of colleges and universities, including Harvard. And under legislation working its way through Congress, the school may end up paying roughly $850 million annually in endowment excise taxes.
As much as some critics of Harvard may revel in watching America's oldest, richest and most influential university humbled, the country benefits enormously from an institution that has trained eight American presidents, produced 161 Nobel laureates and made countless life-changing discoveries in medicine, science and technology, earning 155 patents last year alone.
Harvard's experience demonstrates how much the rule of law depends on those in power exercising that power with restraint and in the public interest.
Harvard cannot win this fight. It is rigged. But that doesn't mean the university should not stay in the ring, litigate, mobilize its alumni, donors and friends, and enlist the support of other colleges and universities, hoping to remain standing long enough for a new Congress and administration to stop the carnage.
And, to that end, to make sure voters understand that when government officials are hell bent on punishing their political enemies (real and imagined) regardless of how large the collateral damage, just about every American loses.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Emeritus Professor of American Studies at Cornell University. David Wippman is emeritus president of Hamilton College.
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