On Monday, Secretary of Education Linda McMahon sent Harvard University an unhinged letter, which she also posted to X, decreeing that the higher education institution could no longer apply for government grants, presumably to do things like find cures for cancer and other diseases.
Instead of scaling back its attacks on Harvard in light of the Perkins Coie decision, however, the administration has doubled down.
Opening the letter with the statement that the federal government “has a sacred responsibility to be a wise and important steward of American taxpayer dollars,” McMahon claims the university is being run poorly and engages in race-based preferences in admissions and hiring. She also asserts that the university has rejected “common-sense reforms” urged by the administration, including committing to “a return to merit-based admission and hiring.”
The ultimate punishment for these transgressions is the following: “Given these and other concerning allegations, this letter is to inform you that Harvard should no longer seek GRANTS from the federal government, since none will be provided.”
McMahon’s letter came just days after a federal judge in Washington, D.C. issued a stinging rebuke to the Trump administration in the first significant decision in a case involving the free-speech rights of a private law firm.
Judge Beryl Howell found the administration’s retributive actions against the Perkins Coie law firm violated the First Amendment, which should have sent a signal to the administration that efforts to punish private institutions for practices and policies the administration does not favor cannot withstand constitutional challenge. But that hasn’t stopped the administration from renewing its attacks on Harvard University.
Before the decision, President Donald Trump claimed his administration would rescind the tax-exempt status of Harvard, a move that would clearly be illegal. Instead of scaling back its attacks on Harvard in light of the Perkins Coie decision, however, the administration has doubled down.
But the attack on Harvard is on even shakier legal and constitutional ground than the administration’s attacks on law firms. American universities enjoy strong First Amendment rights that protect what they teach, who they hire and how they operate. The McMahon letter — which purports to operate as notice to the university that Harvard need not apply for federal research grants — is meant to deter the university from seeking federal funding. I doubt that it will.
At the same time, it sends a clear message to federal agencies, like the National Science Foundation and the National Institutes of Health, that they should reject any application coming from Harvard. And it does so under the banner of purporting to further merit-based admissions and hiring practices. But even the administration’s supposed cure involves what? Decision-making that is not based on merit.
Indeed, according to McMahon’s letter, Harvard should not bother applying for federal grants because none will be forthcoming. Such decisions would not be based on the merit of those applications or the research teams behind them, but on the administration’s grudge against the university. Harvard should continue to resist such efforts and can fully expect to have not just its day in court, but a victorious one at that. So, lodging a litany of claims that Harvard is making decisions not on merit but based on diversity, equity and inclusion, will ultimately lead to funding decisions by the federal government that are not based on merit. As a result, should such policies go into effect, we won’t have the most qualified researchers addressing some of the world’s thorniest public health problems, only those who are approved by the administration’s political leadership. The university is already suing the administration over prior cuts in grants that violate the First Amendment rights of the university and over failing to follow the administrative procedures for cutting such funds required under the law. Add this most recent attack to the basis for the lawsuit. Harvard should also challenge the mere threat from President Trump that the university should lose its tax-exempt status, which, standing alone, violates federal law as well. Harvard should continue to resist such efforts and can fully expect to have not just its day in court, but a victorious one at that. In the meantime, what will be lost should federal agencies actually follow McMahon’s directive? What public health projects will go unfunded? What new research on life-saving cures will end because of the administration’s most recent fit? Harvard should challenge, and courts should review, this most recent attack on Harvard to not just stem a further erosion of First Amendment freedoms, but to preserve the national interest in having the best researchers working on our most important public health challenges.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
