Harvard should win in court. But academia still needs a reckoning.
Harvard University looks likely to win its legal battle against the Trump administration over foreign student visas and many of the school's grants and contracts, and it deserves to. The administration's escalating attack on the university (and, by extension, the rest of higher education) is clumsily executed, disdainful of due process and inimical to American principles of free speech, free association and free inquiry. It is also a strategic mistake.
China, America's biggest geostrategic rival, has four times as many people as the United States, which means four times as many bright strivers with the potential to create the next big thing. Yet, the United States has been able to fight above its weight class, economically and militarily, because it has had the benefit of being an open society.
China's intrusive authoritarian bureaucracy stifles the creativity of the country's vast talent pool, while America imports the best and brightest students from all over the world and allows them to use their abilities to the fullest. This difference helps explain why the United States continues to lead the world in many of the industries of the future and generate lifesaving medical breakthroughs.
So it is easy to agree with the many university presidents who recently wrote in an open letter: 'The price of abridging the defining freedoms of American higher education will be paid by our students and our society.'
At the same time, no one in academia should confuse winning the legal battle against the present White House with triumphing in the larger war that conservatives are waging on higher education. U.S. universities are vulnerable, and they are in for a long fight for public support.
In the past decade, trust in higher education has dropped precipitously. Ten years ago, a robust majority of Americans told Gallup they had a 'great deal' or 'quite a lot' of confidence in higher education; today, only one-third of Americans say the same. Meanwhile, the share who say they have 'very little' confidence or 'none' has risen to 32 percent from 10 percent. The fact that their targets are no longer particularly popular has made it easier for Republicans — in state government as well as in the White House — to attack the foundations of academic independence.
The rising cost of college and the declining wage premium for college graduates might have contributed to this shift. Lingering anger about the covid-19 pandemic aimed at public health authorities and other academic elites could be a factor. The most common complaint among universities' detractors is that they have become too politicized — especially favoring left-wing or progressive thinking.
Academics justly protest that this perception is exaggerated, that most professors teach technical subject matter, not political ideologies. Yet the exaggeration has formed around a large grain of truth.
In a recent survey by the Foundation for Individual Rights and Expression, almost half of conservative faculty said they regularly 'can't express their opinion on a subject because of how other faculty, students, or the administration would respond.' But not only conservatives feel this way. Students and faculty of all political stripes now frequently report that they self-censor on campus when politically controversial topics come up in class, online or in conversations with other students.
In an academic community in which 'diversity statements' are required of new hires (and professors can be denied jobs merely for criticizing them), university administrations and disciplines issue official statements embracing social justice causes, journal editors apologize for or withdraw papers that offend the left, and conservative professors are becoming an increasingly endangered species, even moderates or those on the center-left can reasonably wonder what they're allowed to say, and universities can seem drastically out of step with mainstream society.
The worst of this political fever might be behind us, but academia will have to take strenuous action to restore its reputation as defenders of the free exchange of ideas. Universities cannot convincingly demand that the government respect their academic freedom unless they consistently make the same demand of their own teachers and leaders. Renaming the diversity, equity and inclusion office will not suffice; they need to foster a campus environment in which the frank discussion of ideas is the core value. If they do not, they will find the public yawning as conservative attacks intensify and courts struggle to contain the damage.
Judges might force the Trump administration to restore visas for foreign students and funding for research programs that have been revoked without due process, but the government would still have many levers left to pull. State legislatures, too, can cut funding for public schools, or tie it to significant restructuring. Every new student visa applicant can be scrutinized and justifications can be found for rejection that courts will be reluctant to second-guess. Grants can be directed toward more compliant schools. How would a judge with no background in science declare which projects are most worthy of funding?
Such tactics are not wise, but they are available and, unless universities regain the public's trust, government officials might deploy them.
Schools might also face legal scrutiny of their hiring practices based on the perception that, in their understandable zeal to close racial gaps, they have recently disfavored White, straight and male candidates, at odds with the Civil Rights Act. Until now, 'reverse discrimination' lawsuits have often been hard to win, in part because majority group plaintiffs may face a higher bar to prove their cases and because filing such suits would make it hard to get other jobs in many industries.
But the Supreme Court has just made it easier for plaintiffs to win such cases, and the government has reportedly threatened Harvard with a 'pattern or practice' investigation that obviates the need for any plaintiff.
All of which means that Harvard's current, righteous legal fight, while essential, is still less important for universities in the long run than the battle for American hearts and minds. Schools need to convince the country once again that they do vital work that serves all Americans.
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