So the Division of Homeland Safety introduced at the moment. A couple of tentative ideas; if it seems that I’ve erred in my understanding of the information or of this system, I am going to replace them as mandatory:
[1.] Unsurprisingly, pupil and alternate customer visas are issued solely to individuals who can present that they are surely college students and alternate guests, and at acknowledged establishments that fulfill the visa program’s objectives. There are subsequently procedures each for certifying and decertifying academic establishments as eligible for the Scholar and Trade Customer Program.
[2.] Equally unsurprisingly, establishments have to supply varied data about college students and the scholars’ conduct. The DHS letter claims that:
On April 16, 2025, Secretary Noem demanded Harvard present details about the criminality and misconduct of overseas college students on its campus. Secretary Noem warned refusal to adjust to this lawful order would end in SEVP termination….
Harvard College overtly refused to supply the required data requested and ignored a comply with up request from the Division’s Workplace of Normal Council. Secretary Noem is following by means of on her promise to guard college students and prohibit terrorist sympathizers from receiving advantages from the U.S. authorities.
I can not converse to what Harvard’s alleged failures have been, or whether or not they’re enough underneath the statute to justify decertifying it.
[3.] On the identical time, as with different broadly out there advantages, the federal government usually cannot deny them based mostly on the viewpoints that Harvard expresses, declines to specific, or tolerates and not directly helps. And the letter means that the federal government’s actions stem not less than partly from such viewpoints. Think about, for example, the listing of “Information about Harvard’s poisonous campus local weather”:
- A joint-government job pressure discovered that Harvard has did not confront pervasive race discrimination and anti-Semitic harassment plaguing its campus.
- Jewish college students on campus have been topic to pervasive insults, bodily assault, and intimidation, with no significant response from Harvard’s management.
- A protester charged for his position within the assault of a Jewish pupil on campus was chosen by the Harvard Divinity Faculty to be the Class Marshal for graduation.
- Harvard’s personal 2025 inside research on anti-Semitism revealed that nearly 60% of Jewish college students reported experiencing “discrimination, stereotyping, or destructive bias on campus on account of [their] views on present occasions.”
- In a single occasion, a Jewish pupil speaker at a convention had deliberate to inform the story of his Holocaust survivor grandfather discovering refuge in Israel. Organizers advised the coed the story was not “tasteful” and laughed at him when he expressed his confusion. They mentioned the story would have justified oppression.
- In the meantime, Professional-Hamas pupil teams that promoted antisemitism after the October 7 assaults remained acknowledged and funded.
A few of these behaviors are in fact not protected by the First Modification (e.g., “bodily assault”). Alternatively, “selling antisemitism” and being “pro-Hamas” is protected by the First Modification. The identical is true of laughing at individuals who need to inform tales about their Holocaust survivor relations is protected by the First Modification, as is excluding them from a a program (whether or not run by a pupil group or by the non-public college) except they alter their message.
Selecting somebody to honor as Class Marshal can be expression, even when the individual chosen is being charged for assault—simply as, for example, an anti-abortion establishment can be exercising its First Modification rights by honoring somebody who was accused of punching an abortion clinic worker. Individuals might properly condemn such expression, however I do not suppose the federal government can strip a college of participation in this system based mostly on such expression.
[4.] Extra broadly, even when the DHS hadn’t talked about the college’s or pupil teams’ constitutionally protected speech, and as a substitute targeted simply on nonspeech conduct, the federal government might not selectively implement even speech-neutral guidelines in ways in which intentionally goal individuals or establishments based mostly on their constitutionally protected speech. (See, e.g., Hoye v. Metropolis of Oakland (ninth Cir. 2011), which held that the Metropolis’s viewpoint-discriminatory enforcement of an ordinance in a approach that focused anti-abortion audio system violated the First Modification.) Maybe I am mistaken, but it surely appears to me that the concentrating on of Harvard right here has extra to do with Harvard’s ideological stances, together with its opposition to previous Administration calls for, than with an evenhanded, content-neutral enforcement of reporting necessities, antidiscrimination guidelines, and the like.
In any occasion, I hope Harvard fights this, fairly probably with a request for a preliminary injunction. The court docket will at that time presumably have extra information on what precisely Harvard allegedly did incorrect, and why the Administration truly focused Harvard; I stay up for seeing what’s disclosed in that course of.
