Published in today's Chronicle of Higher Education (registration required there, reprinted here with permission):
We write as generally right-of-center lawyers, scholars, and former government officials to affirm the central importance of academic freedom and to speak out against the Trump Administration's attempts to restrict the speech of Harvard and other universities. We see plenty of problems with the academy, including those related to antisemitism. But having the federal government control the viewpoints that are taught and tolerated at universities is not the solution. Under the First Amendment, such decisions are to be left to universities, not commandeered by government officials, even when the government is attaching conditions to grants and other subsidies. As Chief Justice William Rehnquist wrote in Rust v. Sullivan (1991):
The university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment.
The demands the Administration has made of Harvard University are especially troubling. The requirement that Harvard "audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture" expressly targets the expression of disfavored viewpoints. We do not share those viewpoints ourselves, but the First Amendment protects all viewpoints, whether they are anti-Israel or pro-Israel or anti-Palestinian or pro-Palestinian, or even when they supposedly "fuel" antisemitism, racism, sexism, or other such beliefs. Title VI hostile educational environmental rules may permissibly ban certain kinds of harassment based on race or national origin. But Title VI does not, and cannot, require that universities generally suppress the expression of offensive views or ideologies where they fall short of discriminatory harassment.
If the demand that Harvard "immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives" were confined to programs that actually engage in illegal discrimination, it would likely be permissible (if the proper procedural requirements were followed). But "DEI … programs … and initiatives" seems to embrace programs that merely aim to teach "diversity, equity, and inclusion" viewpoints. Again, whether we support such programs or not, they are protected by the First Amendment against federal government attempts to suppress them because of their viewpoint.
