The Trump administration faces an uphill battle in its fight to remove Harvard University‘s ability to enroll foreign students, as President Donald Trump takes aim at the university for its alleged violations of civil rights laws and executive orders.
Department of Homeland Security Secretary Kristi Noem’s Thursday move to revoke Harvard’s Student and Exchange Visitor Program certification prompted the institution to file a lawsuit, which it did on Friday in a federal district court in Massachusetts. Judge Allison Burroughs of the U.S. District Court for the District of Massachusetts quickly granted a temporary restraining order and said it was necessary to “preserve the status quo pending a hearing.”
Burroughs, an appointee of former President Barack Obama, has ruled against Trump various times, including when she signed a temporary restraining order in January 2017, blocking the president’s order restricting travel from seven Muslim majority countries. She also ruled in favor of Harvard in a 2019 lawsuit claiming the institution’s affirmative action policies were discriminatory. Both matters ultimately made their way to the Supreme Court, with the travel ban going before the high court via a different case, and both of her initial decisions were reversed.
While the administration may not likely prevail in the lower courts, the larger legal battle could weigh accusations of unlawful retaliation against the president’s executive authority.
The DHS website states that the government can decline to recertify a school’s SEVP certification for “any valid and substantive reason.” Some of the reasons listed include “failure to maintain proper facilities for instruction” and “failure to operate as a bona fide institution of learning.”
Noem, in her letter to Harvard officials Thursday, claimed the revocation was due to a failure to comply with DHS reporting requirements. She also said the university was “perpetuating an unsafe campus environment that is hostile to Jewish students, promotes pro-Hamas sympathies, and employs racist ‘diversity, equity, and inclusion’ policies.”
The university has faced significant pressure from the Trump administration over its handling of antisemitism and other matters in recent years. Trump has called for the university’s tax-exempt status to be revoked and has taken rhetorical swings at the famous institution.
In its court filing Friday, Harvard alleged that the Trump administration was engaging in a “blatant violation of the First Amendment, the Due Process Clause, and the Administrative Procedure Act” with its actions.
“It is the latest act by the government in clear retaliation for Harvard exercising its First Amendment rights to reject the government’s demands to control Harvard’s governance, curriculum, and the ‘ideology’ of its faculty and students,” the lawsuit said.
DHS spokeswoman Tricia McLaughlin said in a statement to the Washington Examiner Friday that the Trump administration has “the law, the facts, and common sense on our side,” citing the president’s Article II powers for his authority to go forward with the action.
Trump’s 2020 election campaign lawyer, John Eastman, believes the president has the authority to decide whether Harvard can allow international students to enroll, similar to his authority to carry out the 2017 travel ban.
“The Supreme Court ultimately upheld his authority to do that. Targeting it to a particular institution is a different layer, but the legal argument they’re making is there is a significant portion of these foreign students that are engaging in antisemitic, anti-Israel violence on that campus, and Harvard isn’t doing anything about it, so we can and we will,” Eastman said.
University of California, Berkeley professor John Yoo disagreed with Eastman’s assertion, saying the move against Harvard affects more countries than the 2017 order.
“I don’t think this is the same order as the first-term travel ban. The travel ban aimed only at certain countries where the U.S. believed terrorism was not under control,” Yoo said. “Here, no international student can study at Harvard, no matter what country they are from — South Koreans and Italians are affected as much as students from those countries from the travel ban.”
University of Richmond Law Professor Carl Tobias said he believes it “seems to be a real problem” that the Trump administration appears to have made Harvard a target with its various actions. He thinks judges “seem very alert to that,” citing Burroughs’s pause of the measure pending a hearing.
JUDGE BLOCKS TRUMP ORDER ENDING HARVARD’S ABILITY TO ENROLL FOREIGN STUDENTS
“I think Trump and Noem have said things in the public sector that show how they want to punish Harvard, and I don’t think you can use the power of the state to punish, you know, people you want to have retribution against,” Tobias said. “I think that’ shaping up as one of the primary problems about this administration.”
A hearing on a preliminary injunction for the order has been scheduled for May 29 at a courtroom in Boston.